Domestic Violence Bill, Maintenance Bill & Criminal Procedure Amd Bill: briefing;SAPS Amd Bill & Public Protector Amd Bill: disc

Meeting report

SECURITY AND JUSTICE SELECT COMMITTEE
28 September 1998
DOMESTIC VIOLENCE BILL, MAINTENANCE BILL AND CRIMINAL PROCEDURE AMENDMENT BILL: BRIEFING;
SOUTH AFRICAN POLICE SERVICE AMENDMENT BILL AND PUBLIC PROTECTOR AMENDMENT BILL: DISCUSSION

Documents handed out
Department's proposed amendments to the Public Protector Amendment Bill [B79B-98]
Domestic Violence Bill, 4^th Draft
Comments from Deputy Attorney General: Transvaal

SUMMARY
The committee decided to finalise the South African Police Service Amendment Bill and the Public Protector Amendment Bill on Thursday, 1 October 1998, due to procedural problems. A briefing was given on the Domestic Violence, Maintenance and the Criminal Procedure Amendment Bills by the Department. These three Bills would be discussed on Thursday as well.

MINUTES
South African Police Service Amendment Bill [B39b-98]
The committee decided to finalise this Bill on Thursday as there were procedural problems. Initially the Bill was tagged as a S76 Bill, but the Joint Tagging Mechanism Committee decided to change it to a S75 Bill. Even though it became a S75 Bill, the memorandum had not mentioned this change. The delegates from the Western and Eastern Cape had negotiating mandates from their provinces as they thought it was a S76 Bill.

Public Protector Amendment Bill [B79B-98]
The same procedural problem arose in this Bill. This was a S76 Bill, but the memorandum indicated that it was a S75 Bill. The Western and Eastern Cape delegates did not have mandates from their provinces as they thought it was a S75 Bill. They had, however, briefed their provinces on the Bill.

Mr Selfe (Western Cape, DP) informed the committee of two issues which arose from the Western Cape regarding the Public Protector Amendment Bill:
1) the desire for provinces to have regular reporting on what progress had been made by the Public Protector.
2) If a person was deceased and an accusation had been made, what powers did the Public Protector have.

Focussing on the first issue, Mr Surty (North-West Province, ANC) said that Parliament could ask for a report at any time, according to Clause 11 of the Bill.

Mr Selfe responded by saying that the word "Parliament" had been changed to the "National Assembly" in the Bill, which meant that the National Council of Provinces was left out of the decision-making process. The provinces would have to ask the Chairperson of the National Council of Provinces for permission to request a report. If the Chairperson felt it was unnecessary, the provinces were left powerless. Mr Surty agreed with Mr Selfe and said that the North-West Province had the same concerns.

Ms Lebeko (law advisor to the Department of Justice) reiterated that the Public Protector was accountable to the National Assembly only; he was appointed and removed by the National Assembly.

Mr Selfe wanted to know if it was possible to make a provision in the Bill for the provinces to get answers from the Public Protector. Ms Lebeko said that a mechanism could be inserted which allows the Public Protector to report to the NCOP as well. The Chairperson, Mr Moosa (Gauteng, ANC) wanted to know what amendment could be proposed. Ms Lebeko replied that the amendment would read that the Public Protector may report to the NCOP for informational purposes in Clause 11.

Mr Selfe wanted the department to add "report submitted at request of Province". At this point, Mr Surty said that he was concerned that any province could ask for a report at any given time. He thought that this indiscretion would burden the
Public Protector. He said that he was happy with subsection 11(v) as it stood.

The Chairperson asked Ms Lebeko to draft the amendment to include the reporting to the NCOP as well. This would be looked at in Thursday's meeting.

Ms Lebeko went through the department's technical amendments of Clause 8, lines 38 and 43 and Clause 9, lines 13 and 14. The committee did not have any problems with the amendments.

The Committee decided that they would write a letter to the Joint Tagging Mechanism Committee about their concern that the memorandums had not been changed for the above-mentioned Bills. Also, no reporting occurred to the NCOP of the changes made.

Witness Protection and Services Bill [B130-98]
Mr Labushagne (law advisor to the Department of Justice) informed the committee that the Bill had been resubmitted and changed from B9-98 to B130-98 and it had been finalised by the National Assembly. He then briefed the committee on the amendments made by the National Assembly:

In Clause 15, the National Party had convinced the committee that the Judge could make postponement of proceedings.

In Clause 22 (2), the National Assembly had reshuffled the offences. Also the offences had been split.

Regarding the proposal by the Security and Justice Select Committee on police dockets, Mr Labuschagne read out the portfolio committee's response in the Announcements, Tablings and Committee Reports of Monday, 21 September 1998 (see report at the end of the minutes).

Mr Labushagne informed the committee that he had been asked by the portfolio committee to draft a clause around the NCOP's proposal and, at the request of that chairperson, limit it to police dockets and not to general information. That would be brought to the meeting on 1 October 1998.

A letter from the Deputy Attorney-General (Transvaal) was discussed by the committee concerning comments on the Witness Protection Bill (Draft 8). The committee concluded that the Deputy Attorney-General had misunderstood the sections of the Bill mentioned in his letter.

In clause 9, regarding reports by the witness protection officer, the department felt that confirmation was only necessary when the witness protection officer handed in a report. The committee felt that a mechanism had to be built in whereby the witness protection officer was obliged to consult with the director of public prosecutions. This amendment would be drafted as part of Clause 10(1) and would be brought to the committee on 1 October 1998.

Clause 18, regarding the publication of information concerning a protected person, the committee wanted to know whether it included proceedings other than what was listed in the definition. It was felt that there were other proceedings and Mr Labuschagne was asked to draft an amendment which would only affect Clauses 18 and 19.

The issue was raised of including the word "electronic" in Clause 18, line 30. Mr Labuschagne informed the committee that the portfolio committee thought the list was sufficient as it stood. The committee wanted the word added to the list.

In the Schedule, Mr Radue (Eastern Cape, NP) said that money laundering should be part of the list in number 14. The committee decided that that amendment should be drafted by the department which would add "any other financial acts".

Mr Labuschagne informed the committee that, from the department's side, changes needed to be made in the Afrikaans text of the Bill. He said that he would find out from Mr Pauw (Head of legislation and proceedings at parliament) if it could be done administratively.

Domestic Violence Bill [B75-98]
Mr de Lange (law advisor to the Department of Justice) informed the committee that the Bill was in its fourth draft, which uses the tabled Bill as introduced as a basis for discussion . It had not been finalised by the National Assembly yet. Mr de Lange went through the definitions. A few questions of clarity were asked by the committee members on this section, which were answered by Mr de Lange.

After this section the committee adjourned for lunch.

Mr de Lange resumed the briefing after lunch by going through pertinent amendments to the Bill. He said that "victim" would probably be replaced by "complainant" as it was more applicable to the situation. The Protection Order forms had been taken out of the Bill. The old clause 9 had been omitted and inserted into Clause 5(6)(7) and (8).

Regarding the issuing of a protection order, an affidavit was sufficient for the police to arrest the respondent. The amendment to Clause 7(5) had been proposed by the South African Law Commission. In subsection 8 of the same clause, the amendments harmonised the Bill with other legislation which deal with similar issues.

In Clause 15, the option had been proposed by the South African Law Commission. The parts in bold in Clause 17 would be inserted in the Criminal Procedure Amendment Bill. Mr de Lange ended his briefing by saying that the regulations in Clause 20 were new.

Mr Radue highlighted that the Bill did not deal with the lapsing of the protection order when a victim dies. Mr de Lange said he would look into that issue.

Maintenance Bill [B72-98]
Mr Basset (law advisor to the Department of Justice) gave a briefing on the Maintenance Bill. He informed the committee that the National Assembly had not completed work on the Bill.

He gave a historical background to the Bill as introduced. He said that the South African Law Commission was busy with a project dealing with the review of the entire judicial maintenance system. The Law Commission would complete a final report next year. Mr Basset also mentioned to the committee that the Office of the Deputy Minister of Justice had played a significant role in the formulation of the Bill. The reason for the re-enactment of a new Maintenance Bill, 1998 instead of an amendment bill, was to emphasis that a new phase of handling maintenance was underway by the government.

Changes to the existing law (Maintenance Act, 1963) were highlighted by Mr Basset. Prominence would be given to investigation enquiries. Training of maintenance officers would allow the court to come to a decision more quickly. The Bill authorises the maintenance or investigative officer to take statements under oath. Clause 16 indicated core principles for parents to support their children. Clause 17(2) was important in that the maintenance court could authorise the employer to deduct maintenance from the respondent's salary. If the employer did not comply with this, punishment would come into effect. Clause 22 (Orders by default) gave the respondent twenty days to apply to the court for an order setting aside or varying the order.

Mr Basset ended his briefing by stating that the National Assembly had highlighted that the recovery of maintenance was not dealt with and wanted it included in the Bill. He added that the Minister of Justice wanted the continued involvement of the South African Law Commission in this Bill.

No further discussion occurred on the Bill.

Criminal Procedure Amendment Bill [B132-98]
Mr Basset gave a historical background on the Bill, saying that it was based on section 29 of the Correctional Services Act, 1959. He went through some of the clauses as per the tabled Bill. He mentioned that there was a new section 71A. Subsections 5(d), (6), (7) and (8) in Clause 1 were similar to the Correctional Services Act, 1959 and subsection (9) gave the definition for unconvicted persons. Clause 2 was new and Clause 3 had technical provisions which repealed section 29 and Schedule 2 of the Correctional Services Act, 1959. Clause 4 proposed that only children between sixteen and eighteen could be jailed. Presently it was 14 years old. Schedule 8 was a re-enactment of Schedule 2 of the Correctional Services Act, 1959.

Mr Basset said that the Bill had been resubmitted and had been changed from B59-98 to B132-98. At this point the committee adjourned for 10 minutes while the committee secretary fetched copies of the new version of the Bill.

The continuation of this meeting's proceedings will be available shortly.

Appendix 1
The Portfolio Committee on Justice, having considered the subject of the Witness Protection and Services Bill [B 9-98]
(National Assembly - sec 75), referred to it, submits the Witness Protection Bill [B 130-98] (National Assembly-sec 75).

The Committee further wishes to report as follows:
1. During its deliberations on the Bill, the Committee was informed that the Select Committee on Security and Justice has proposed that the Bill should be amended by the insertion of a provision prohibiting persons involved in proceedings in respect of which a witness or related person is under protection. from gaining access to police dockets and other documents which may disclose the identity or whereabouts or other information pertaining to such a witness or related person.

2. Although the Committee supports the principle contained in the proposal. it is aware of the decision in Shabalala and Others v Attorney-General, Transvaal, and Another 1996 (1) SA 725 (CC),in which case the Constitutional Court refused to uphold a blanket privilege pertaining to police dockets, but recognised that circumstances could exist where the State could justify a refusal to allow access to part of a police docket. Due to insufficient time, the Committee was not in a position to investigate the proposal properly by means of comprehensive research. The Committee therefore recommends that the Select Committee on Security and Justice be requested to investigate its proposal and, if possible, to consult with the Chairperson of the Portfolio Committee on Justice in order to draft a possible amendment for inclusion in its report on the Bill.