Prevention of Organised Crime Amendment Bill [B2b-99]; Arms & Ammunition Amendment Bill (B 32-99): voting; Military Discipline S

SECURITY & JUSTICE SELECT COMMITTEE
17 March 1999
PREVENTION OF ORGANISED CRIME AMENDMENT BILL [B2B-99]; ARMS & AMMUNITION AMENDMENT BILL (B 32-99): VOTING; MILITARY DISCIPLINE SUPPLEMENTARY MEASURES BILL: BRIEFING & VOTING

Documents handed out:
Approved Amendments to the Military Discipline Supplementary Bill (B31-99) (see appendix)
Prevention of Organised Crime Amendment Bill [B2B-99]
Arms and Ammunition Amendment Bill [B32-99]

SUMMARY
The Military Discipline Supplementary Measure Bill as well as the Arms and Ammunition Amendment Bill were accepted by the Committee. The Prevention of Organised Crime Amendment Bill will be voted on after discussions with the Ministers of Finance and Justice. The NNP, IFP and the FF were not in support of the Arms and Ammunition Bill and therefore abstained from voting.

MINUTES
The Chairperson, Mr M Moosa, started the meeting by pointing out that the aim of the meeting was to vote on the three bills before them. Importantly, the Chairperson pointed out that consensus had been reached in the previous meeting on the fact that any proposed amendments were supposed to have reached him by yesterday. Due to the fact that no suggestions were made, the Chairperson suggested that the Arms and Ammunition Act should be put to vote. The Department of Defence was present and pointed out that they accepted the Arms and Ammunition Act in its present form.

Arms and Ammunition Amendment Bill [B32-99]
Before voting on the Arms and Ammunition Bill, Mr Radue (NNP) asked the Chairperson if he would be able to suggest three amendments to this Bill. There ensued a debate on whether a delay due to these NNP proposed amendments should be allowed or not. The Chair pointed out that a deadline (16 March 1999) had been given for proposed amendments and that the NNP had taken too long in coming forward. Furthermore, the MEC of the Western Cape, Mr M Wiley (NNP), had expressed his support of the Bill to the Department of Safety and Security. The Chair therefore ruled that the NNP proposed amendments should not be considered.

The Bill was accepted by the committee without amendments, but the IFP (Pienaar), FF (De Ville) and NNP (Radue) abstained. Before closing the matter, Mr Moosa acknowledged that the Bill would have to be debated in the NCOP Chamber.

Prevention Of Organised Crime Amendment Bill [B2B-99]
The Chair asked Mr de Lange (departmental law advisor) whether the Minister of Finance had been informed on the problematic issue of Section 37 of the Bill which includes the insertion of Section 69A (2) into the principal Act. Section 69A (2) states that property and money confiscated through this Act "shall be withdrawn or allocated as a direct charge against the National Revenue Fund". This gives Cabinet the sole power to contol the utilisation of the property and amounts confiscated which is unfair in the opinion of the parliamentary committees dealing with this Bill.

Mr de Lange said that he had conveyed the issue to the Department of Finance yet the Minister, when contacted by Mr Moosa, had been uninformed on the issue.

A suggestion was made for the Ministers of Justice and Finance to be informed of the situation and to establish if they could attend a committee meeting on the matter. The Committee supported this and a meeting will potentially be arranged for Tuesday, 23 March 1999.

Military Discipline Supplementary Measures Bill [B31B-99]
Admiral Bakkes, from the Department of Defence, opened his briefing, by introducing a document on the approved amendments.

The crux of the need for change in the Act lay with the judgement made by Judge Hlophe in the Cape High Court on 18 December 1998. He ruled that the old Military Discipline Act, then in use, had proved itself unconstitutional.

This accusation arose primarily from the fact that courts were tied to line command. Courts were not independent and those in line command were able to make judgments if they deemed it to be necessary. Furthermore, the Act did not require members of military courts to be trained in law. The need to create a new court system as well as a new form of judgement was therefore necessary.

The Admiral highlighted the following schedules of the Act:
S 3.2 - which parties are subject to the Act
S 4 - resolution in the face of confliction with other Acts
S 6 - describes the establishment of the military court system
S10 - makes provision for a military assessor. This limits the authority of commanding officers, as well as their jurisdiction, in deciding on the outcome.

Admiral Bakkes pointed out that the military provides a built-in defence for the accused as every soldier's case is reviewed. Military discipline procedure of old was characterised by the fact that all members involved in the court process were thoroughly informed (thanks to review procedures and preliminary investigations). It is the belief of the Admiral that the civil courts could learn from military discipline procedures such as these. Currently, the challenge for the implementation of the Bill would be in the practicality of the Bill, due to the fact that it demands the contribution of many judges in the process. The major difference between this process and the old one , at lower level, is that the accused will not be tried by his/her commanding officer, unless the accused trusts the judgment of his/her superior.

Questions:
Mr Pienaar (IFP): Looking at Clause 12, what happens to the pension of a military officer who is dismissed or resigns?
Resignation benefits will then be paid out, not pension benefits.

Adv De Ville (FF): Are there provisions made for people to be released on bail if arrested for serious crimes?
According to legislation, conditions may be set for bail

Mr Moosa (ANC): When presenting the Bill to the Committees of Justice and Defence, please indicate if any amendments were made? Could you give an indication of how many military personnel are awaiting trial?

Clause 8 was amended. As of 12 January 1999 there were 2075 outstanding cases, currently they are estimated at 2700.

Mr Pienaar (IFP): What type of regulations are present in the detention barracks?
There is a different set of regulations in the detention barracks. Currently there are very few people serving in detention. Important to remember is the fact that detention differs from imprisonment. The spirit is that the accused is retained within the military system and not rejected by it.

The Bill was then voted on and passed by the Committee without amendments.

The next meeting will be on Tuesday 23 March at 09h30.

Appendix 1:
REPUBLIC OF SOUTH AFRICA
PORTFOLIO COMMITTEE AMENDMENTS
TO
MILITARY DISCIPLINE SUPPLEMENTARY MEASURES BILL [B 31—99]
(As agreed to by the Portfolio Committee on Defence (National Assembly))

AMENDMENTS AGREED TO
MILITARY DISCIPLINE SUPPLEMENTARY MEASURES BILL [B 31—99]

CLAUSE 8
1. On page 12, in line 27, to omit ‘‘appeals’’ and to substitute ‘‘Appeals’’.
2. On page 12, from line 39, to omit paragraph (d) and to substitute:
(d) if it has upheld the finding, or substituted a finding, vary the
sentence.
3. On page 12, from line 44, to omit ‘‘, but subject thereto that the
consequences shall not be more favourable to the offender’’.
4. On page 12, from line 53, to omit subsection (4).

CLAUSE 29
1. On page 28, in line 26, to omit the second ‘‘shall be’’.

CLAUSE 30
1. On page 32, in line 3, to omit ‘‘be’’.

CLAUSE 32
1. On page 36, in line 17, to omit ‘‘or’’ and to substitute ‘‘and’’.

CLAUSE 34
1. On page 40, in line 15, to omit ‘‘director’’ and to substitute ‘‘the Director:
Military Judicial Reviews’’.

CLAUSE 39
Clause rejected.

NEW CLAUSE
1. That the following be a new Clause:
Language
39. Any accused in a military trial is entitled to have the
proceedings interpreted into a language preferred by the accused.

CLAUSE 40
1. On page 44, in line 5, to omit ‘‘ensuring the’’.

CLAUSE 42
1. On page 44, in line 28, to omit ‘‘being charged with any offence’’ and to
substitute ‘‘appearing as an accused’’.

CLAUSE 44
1. On page 44, from line 47, to omit subsection (2) and to substitute:
(2) All trial and disciplinary proceedings which immediately
before the commencement of this Act were underway or pending
before a court martial or a commanding officer shall be terminated
and may start afresh under the control of the relevant prosecution
counsel in accordance with the provisions of this Act.
(3) All review and appeal processes which immediately before the
commencement of this Act were underway or pending shall proceed
in accordance with the provisions of this Act.

SCHEDULE 2
1. On page 52, in item 7, to omit section 116 and to substitute:
116. Any finding, [or] sentence or order of a military court as
[confirmed] upheld, substituted or varied by a [confirming or
reviewing authority or the council of] review authority, shall be
deemed to be the finding of the court which passed the original
sentence or made the original finding or order.’’.

2. On page 54, after item 8, to insert:
9. Amendment of section 128 by the substitution in paragraph (j)
of subsection (1) for the expression ‘‘Adjutant General’’ of the
expression ‘‘Chief of the South African National Defence Force’