Recognition of Customary Marriages Bill [B110a-98] & Demobilisation Amd Bill [B136-98]: voting; Prevention of Organised Crime Bi

SECURITY AND JUSTICE SELECT COMMITTEE
10 November 1998
RECOGNITION OF CUSTOMARY MARRIAGES BILL [B110A-98] & DEMOBILISATION AMENDMENT BILL [B136-98]: VOTING; PREVENTION OF ORGANISED CRIME BILL [B118A-98] & JUDICIAL MATTERS AMENDMENT BILL [B30-98]: DISCUSSION AND VOTING

Documents handed out
Judicial Matters Amendment Bill [B30-98]: Draft One
Demobilisation Amendment Bill
Recognition of Customary Marriages Bill
Prevention of Organised Crime Bill

SUMMARY
The committee passed, without amendment, the Recognition of Customary Marriages Bill, the Demobilisation Amendment Bill, the Prevention of Organised Crime Bill and the Judicial Matters Second Amendment Bill.

MINUTES
The Chairperson, Mr Moosa (Gauteng, ANC) was absent and sent his apologies. The meeting was chaired by Mr Surty (North-West Province, ANC).

Recognition of Customary Marriages Bill [B110A – 98]
Mr Surty put the Bill to the committee, clause by clause, and the committee agreed to it.

Demobilisation Amendment Bill [B136 – 98]
Mr Surty put the Bill as a whole to the committee and it agreed to it, with a noted objection by the Freedom Front.

Prevention of Organised Crime Bill [B118A-98]
Mr Radue (Eastern Cape, NP) asked for an overview of the Bill as it stands with amendments by the Justice Portfolio Committee. This was provided by Mr Gastrow (legal adviser) who explained that:
Over the last two decades there has been such an increase in organised crime that it now constitutes a national and international security threat;
Until now the South African law enforcement authorities have been responding to crime by focusing on the detection and prosecution of single crimes and failing to address the bigger picture (often crime organisations and conspiracies) which these crimes are a part of. In the Unites States and United Kingdom, law enforcement devotes substantial resources to combating organised patterns or conspiracies of criminal behavior and with this Bill South Africa will follow suit;
The Bill introduces the crime of racketeering, which means that a person may be guilty of a crime for being involved in a pattern of criminal activity. The penalties for such a crime are severe (life imprisonment and 1 billion Rand fine) and are so because of the vastness and extreme wealth of some organised crime groups;
The Bill provides for evidence that would normally be inadmissible (e.g. hearsay, similar fact evidence) to be admitted to establish that a person is part of a pattern of criminal activity (racketeering) as long as admission of the evidence would not render the trial unfair. There were concerns that this relaxation of the rules of evidence may be unconstitutional however the committee was assured that every provision in the Bill has been checked for constitutionality and that the entire Bill complies with the constitution; and
The Bill provides for civil forfeiture. Under the Proceeds of Crime Act if a person is convicted of an offence any property which forms part of the proceeds of that crime can be seized and forfeited to the State. This procedure was problematic because between the arrest and eventual conviction the accused could, and often did, dispose of the relevant assets. This Bill provides that if a police officer suspects that a certain asset forms part of the proceeds of crime he or she may apply to a judge to have the asset seized, and if the court is satisfied on the balance of probabilities it will issue an injunction preventing the owner of the asset from dealing with that asset. The injunction will be publicised and the owner of the asset will be given an opportunity to appear before the court to convince it that the asset was acquired legitimately. In Italy, where a similar system operates, 80% of people against whom an injunction is issued fail to appear before the court because they do not want to be subjected to cross examination which may uncover their criminal activities. The Bill provides that if a person fails to come to court or fails to establish that the asset was acquired legitimately, the court will order forfeiture of the asset. The proceeds of such forfeiture will go into a fund administered by the Department of Finance and it is envisioned that some of those funds will be used for the Witness Protection Programme (a programme which has proven to be vital in successfully combating organised crime in other countries). The Civil Forfeiture provisions are modeled on similar provisions in New South Wales legislation and contain checks and balances aimed at ensuring that individuals will not be subjected to unfair treatment.

In relation to this last point, Mr Pienaar (Western Cape, IFP) expressed concerns that the Bill, in giving courts such discretion and power (to impose heavy penalties and effect civil forfeiture), may render judges vulnerable to corruption, and pointed to examples of judges who were caught accepting bribes from criminal organisations in the United States, Italy and New South Wales - the very places whose legislation this Bill is modeled on. He added that the same could be said of the powers given to police. In response to this concern Mr Gastrow admitted that there is no sure way to prevent corruption; however, the Bill provided for only selected persons to be involved in the enforcement of the Bill. He said that such people would be subjected to rigorous standards, and tests such as polygraph (lie detector) testing.

He then continued his overview of the Bill saying:
the Bill obliges persons who deal with monetary transactions, such as banks and law firms, to report any suspicious transactions and provide relevant documents to the authorities. He added that the banks are generally pleased with this because it allows them to disclose information while excusing such disclosure to their customers by pointing to their legal obligations; and
the Bill also deals with low level organised crime, generally known as street crime. It introduces the offence of being a member of a street gang knowing that the gang is involved in continuous criminal activity. This crime attracts far lower penalties because it is aimed at gangs which, while they cause havoc and terror, are not as pervasive and harmful as the more organised crime gangs which the Bill is substantially directed to. The Bill provides a list of ‘clues’, such as insignias on clothing, which the court may refer to when deciding whether a person is a member of a street gang.

Mr Surty, with the concurrence of the committee, congratulated the legal tram which had worked on the Bill, saying it encapsulated very well the policy of combating organised crime and its language was user-friendly. He then put the Bill to the committee which agreed to it.

Judicial Matters Amendment Bill [B30-98]
This Bill contains amendments to a number of Acts. The amendments are too small to justify a separate amendment Bill each. The Committee discussed two amendments.

Mr Labuschagne (legal adviser) explained that clause 7 is an amendment to section 49 of the Criminal Procedure Act 1977, and is designed to bring that section into conformity with the Constitution. The clause deals with a situation when a person attempts to effect an arrest and the person who is the object of the arrest flees. The clause provides that a person attempting to effect arrest (whether police or civilian) may use force which is proportional in all the circumstances, and may use force which is intended to kill or cause grievous bodily harm only if the there is an imminent risk that the fleeing person will cause death or grievous bodily harm to a person (including the person attempting to effect the arrest) if force is not used against the fleeing person.

The committee was satisfied that the clause was constitutional. Mr Surty mentioned that in the debates in the National Assembly the National Party and IFP were not happy with the clause because a schedule that had originally been attached had subsequently been removed. Mr Labuschagne explained that the schedule had listed crimes which justified the use of varying measures of force but that this had been too rigid and the approach of proportionality was preferred in the end.

The committee then discussed clause 12 (Amendment of section 13 of Act 90 of 1993, as amended by section 4 of Act 85 of 1995 and sections 6 and 8 of Act 35 of 1996). Mr De Lange (legal adviser) explained that the clause provides for the retirement of Magistrates to be 65 with an option to continue beyond that age with the permission of the Minister. Mr De Lange noted that some Magistrates had complained that this discriminated against them because Magistrates are members of the same pension fund as other public servants and the retirement age for other public servants is 60. Mr De Lange said that he was confident that it was not discriminatory and that in any event all the Magistrates currently sitting began their appointments when the retirement age for Magistrates was set at 65. He added that there would be further discussions regarding the pension fund.

Mr Surty put the Bill to the committee which agreed to it, with noted objections from the National Party and IFP.