Criminal Matters Amendment Bill; Public Protector Amendment Bill; Debt Collectors Bill: briefing

SELECT COMMITTEE FOR SECURITY AND JUSTICE
2 September 1998
CRIMINAL MATTERS AMENDMENT BILL; PUBLIC PROTECTOR AMENDMENT BILL; DEBT COLLECTORS BILL: BRIEFING

Documents handed out:
Debt Collectors Bill [B102B-97]
Banking Council proposals on Debt Collectors Bill

The Chairperson began the meeting by calling on Department of Justice officials for briefings on the various bills. Mr. Labuschagne felt that members would be unable to deal with the Judicial Matters Amendment Bill as they had not been sufficiently prepared. He continued that they had reached clause 8 of the Witness Protection Bill and that there were some amendments with which the National Assembly was dissatisfied. Ms Lebeko then began briefings on the other Bills.

Criminal Matters Amendment Bill
The Bill emanates from the Law Commission Report and deals with the burden of proof and the regulation of referral of the accused. Accordingly it impacts on Justice and Health Department legislation. The Department of Health was consulted on the matter.

Clause 1
This deals with section 25 of Mental Health Act. The Bill amends it, making reports necessary every six months. The Portfolio Committee furthermore decided to add the phrase ‘medical practitioner in charge of the patient.’

Clause 2
This amends section 29 of the Mental Health Act. In cases of serious violence the curator ad litem (Director of Public Prosecution) must apply for discharge. The clause sets out orders that the judge may make in terms of the Criminal Procedure Act and the Mental Health Act. It also sets out the various persons who may make applications and the powers of the curator ad litem with regard to the discharge of patients.

Clause 3
Clause 3 provides that legal aid may be provided where mental illness is being investigated. It further provides that a person who has been declared a State patient may be prosecuted if it is later thought that they are capable of understanding proceedings. It states that in cases where it was decided to detain a person, the person should remain in prison pending a decision of a judge in chambers.

Clause 5
This clause deals with the presumption against mental illness and underlines the common law presumption of sanity. It places the burden of proof on the person who raises mental illness, and although the constitutionality of this was raised, it was felt that it would pass the test.

The clause also deals with non-pathological mental illness, that is temporary mental illness as a result of provocation, intoxication etc. This raised a number of questions from members. Mr Moosa (ANC) felt that this was an insufficient defence and that it was unthinkable that anger should be allowed as a justification for murder. Ms Tyobeka (ANC) raised the recent case in which a husband was acquitted of murder because of non-pathological illness brought on by anger. Mr Moosa questioned whether there was a need to broaden the existing defences. Ms Lebeko stated that in non-pathological cases the onus rests on the State to prove the case and that accordingly there was a need to refer patients. She reaffirmed her support for the clause as it stood. She pointed out that in the case Ms Tyobeka had referred to, the accused had been acquitted because of lack of evidence. Ms Tyobeka felt that the clause would send a message to the public that the State was on the side of the criminals. Mr Pienaar was concerned about the view being taken. He felt that the committee should not make a decision based on a case without having the actual judgement before them, and that their knowledge of the case was based wholly on media reports. He continued that the committee should not jump to premature conclusions. Mr Malapane (ANC) supported Mr Moosa’s view.

It was decided that Ms Lebeko would get advice on the matter and present the committee with a legal opinion.

Public Protector Amendment Bill
Most amendments in this Bill emanate from the Public Protector.
Clause 1
This replaces references to the Interim Constitution with the Final Constitution.

Clause 2
The preamble is amended to refer to the Final Constitution.

Clause 3
This inserts a definition of the Constitution and deletes various definitions.

Clause 4
Provides for the establishment and appointment of the Public Protector.

Clause 5
This envisages the substitution of the National Assembly for Parliament in accordance with section 193 of the Constitution.

Clause 6
The Portfolio Committee debated this clause at length. In drafting the same manner of drafting was followed as that used in the principle Act.

Mr Moosa raised the concern that Public Prosecutor decisions are placed only on the National Assembly. He felt that there should be more consultation and that the NCOP should be more involved because they were also affected by the decisions. Ms Lebeko pointed out that the clause was in accordance with section 181(5) of the Constitution. Mr Moosa was also concerned with the idea that the Public Protector could accept donations with conditions attached at his or her discretion. He felt that there should be some other watchdog mechanism.

Clause 8
This deals largely with amendments proposed by the Public Protector. Mr Moosa was concerned about the limitation of the powers of the Public Protector. He said he did not see a problem with the overlapping of the functions of the Public Protector and other protectors such as the Gender Commission.

Clause 10
There was agreement with the Portfolio Committee that the clause was too narrow.

Clause 12
This repeals section 12, dealing with Provincial Public Protectors.

Mr Moosa summed up the main issues emanating from the briefing on the two Bills. In terms of the Criminal Matters Amendment Bill he felt that non-pathological mental illness must be further discussed. In terms of the Public Protector Amendment Bill he felt that the NCOP should be more involved. He felt that finalisation must be achieved as soon as possible, and targeted 7 September 1998 for Select Committee votes.

Debt Collectors Bills
Mr Moosa began by explaining briefly to members the concept of factoring, whereby companies on-sell the debts owed to them to debt collectors. Letters were received from the Banking Council giving their proposals. The Banking Council felt that the Bill was initially aimed at preventing bad practices in the small debt collector sphere. The Banks felt the Bill was not intended to affect people collecting good debts.

Mr Moosa said the intention of the Bill was to control the industry and to avoid loopholes, while not discriminating against small debt collectors. The members discussed the various proposals of the Banking Council, and the problems arising out of the Bill as it stands at the moment.
The committee decided that they did not want to pass bad law and felt that the Bill should be substantially redrafted. It was agreed that the Bill should be delayed until the next cycle so that more thought could be given to the matter.