Criminal Procedure Second Amendment Bill; Interim Rationalisation of Jurisdiction of High Courts Bill; Judicial Matters Amendmen

Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
11 September 2001
CRIMINAL PROCEDURE SECOND AMENDMENT BILL; INTERIM RATIONALISATION OF JURISDICTION OF HIGH COURTS BILL; JUDICIAL MATTERS AMENDMENT BILL: BRIEFING & LEGAL AID DIRECTIVES

Chairperson: Adv J H de Lange

Documents Handed Out
Judicial Matters Amendment Bill [B43 - 2001]
Criminal Procedure Second Amendment Bill [B45 - 2001]
Interim Rationalisation of Jurisdiction of High Courts Bill [B44 - 2001]
- Memorandum of the Objects of these Bills [See Appendix below]
- Summary of these Bills by Parliament's Research Department [Email [email protected] for document]
- General Council of Bar of South Africa submission on Interim Rationalisation of Jurisdiction of High Courts Bill
- Constitution of the Republic of South Africa Second Amendment Bill 2001: Book of 24 Public Submissions
- Sias Moise v Greater Germiston Transitional Local Council & Minister of Justice & Constitutional Development
- Municipal Finance Management Bill

SUMMARY
Briefings were conducted on Criminal Procedure Second Amendment Bill that deals with Plea Bargaining, the Interim Rationalisation of Jurisdiction of High Courts Bill and the Judicial Matters Amendment Bill

The Committee agreed to the Legal Aid Directives and the remuneration packages for the TRC until its imminent closure and for the Office of the Public Protector.

MINUTES
Interception and Monitoring Bill update
Adv de Lange updated the Committee on the progress of the Interception and Monitoring Bill, saying that the public hearing leg of the process had been completed. The National Intelligence Agency was currently talking to internet service providers and Telkom in order to gain clarity on certain matters.

Mr L Landers (ANC) reminded Adv de Lange that individuals had made very serious accusations leveled at Telkom before the Committee. He said that it was important that these people be brought before the Committee once again to present these allegations more clearly and in greater detail. Adv de Lange said that the recordings of that specific meeting were in the process of being typed up. The recordings were however of a bad quality making it hard to make out the conversation. Once these recordings are transcribed, copies will be made available to the press, who have already requested copies, and the Committee members. Once all this is completed, those individuals will be invited back to make further representations.

Criminal Procedure Second Amendment Bill: Plea Bargaining
Adv de Lange reminded the Committee that in 1995 a Bill dealing with plea bargaining was placed before the Committee. That Bill was however riddled with problems and failed to muster any support.

Mr Labuschagne, a drafter from the Department of Justice, said that in doing research for this Bill, the SA Law Commission had looked to the United States. Here they saw that plea bargaining is used to counteract or prevent the overburdening of the judicial system. He said that this measure was also used in the United Kingdom and Canada. The Law Commission had decided that South Africa could not afford to be different to other countries and would have to apply a system mirroring those found in the jurisdictions mentioned above.

Mr Labuschagne said that there had been no judgment on the matter in the South African courts but it can be said that the judiciary was not opposed to the principle of plea bargaining. The Law Commission in compiling its report noted that the important distinction between plea bargaining and sentence bargaining had to be kept in mind. Plea bargaining was the process whereby the defence and prosecution agreed on the plea that would be entered without any consideration being given to the sentence that would follow a plea of guilty. On the other hand, sentence bargaining is the process whereby the defence and the prosecution agree on a plea of guilty, depending on the imposition of an agreed-upon sentence. Under the South African system the prosecution has always had the power to conclude the first type of agreement but has never had the power to bargain offering a predetermined sentence.

Clause 2 of the Bill provides that plea and sentence agreements must be entered into before the accused pleads. Adv de Lange identified the reason for this being that the court did not wish to hear the matter and waste time only for the accused to later plead guilty. Mr Labuschagne said that this was indeed the reason but that this position was that of the Law Commission and not that of the Department of Justice. He said that the Department of Justice felt that this procedure should be allowed at later stages of the proceedings as well.

Mr de Lange from the Justice Department explained that this procedure should be allowed at a later stage because it is available to the accused any way. The position as it stands in the Bill is to prevent the case where the accused pleads not guilty to 'feel the water' and when he sees that he has no chance, changes his plea to one of guilty. Mr de Lange explained that in terms of the Criminal Procedure Act an accused can change their plea anyway. Also, the prosecution as 'dominus litis' can never be negatively affected.

Adv de Lange asked what the effect of this Bill was on offences which carried specified minimum sentences. Mr Labuschagne said that these offences were excluded . He also explained that from a practical point of view the parties can agree to the minimum sentence or even less if there are compelling circumstances present. However, as with all other cases, this sentence and the compelling circumstances will have to be justified in front of judicial officer.

In clause 2(3) the Bill provides that the court cannot be the place for the negotiations. Adv de Lange asked what was envisaged by 'the court' and wanted to know if this included individuals such as interpreters. Mr Labuschagne said that the original draft read 'presiding officer' but this was changed to read 'the court'. Adv de Lange said that in his opinion it should provide that the presiding officer cannot take part in the negotiations, and if this were the case, the definition of presiding officer should include assessors. He said that the matter would be debated in greater detail when deliberations on the Bill began1.

Mr Labuschagne continued saying that once a sentence has been agreed upon, the court is told what the proposed sentence is. The court may approve the sentence or reject it and impose a higher one. The accused can abide by the higher sentence or withdraw from the proceedings and enter a plea of not guilty. If this is done the matter goes to trial with none of the evidence or admissions which had been disclosed in the bargaining procedure being admissible as evidence.

Dr J T Delport (DP) said that he was satisfied that the position of the accused had been sufficiently provide for. He was however unhappy as to the position of the state. He gave an example of where young prosecutors enter into plea and sentencing negotiations with experienced attorneys

Mr Mzizi said that he was not against the principle of plea bargaining but he was concerned about the criteria that would be used. Mr Mzizi explained that in the past the prosecutor had to consult the investigating officer. Now however, at what point in the investigation will plea bargaining proceedings take place. In the past the entire investigation was completed, the trial proceeding were initiated. The presiding officer played a referee role in arriving at a conclusion and the imposition of a sentence. Now the judicial officer only comes in right at the end, with their only function being to approve or disapprove of a certain sentence. Adv de Lange reminded Mr Mzizi that this occurred anyway because the prosecution and the defense often agree on which facts are admitted. Once this is done the court looks to see if all the elements for liability are there. If they are, the only function of the court I to impose a sentence. Adv de Lange said that in terms of the Bill the power of the judiciary is in no way reduced.

Mr Labuschagne added to Adv de Lange's comment saying that the powers of judicial officers were in no way reduced. The agreement reached between the prosecution and the accused is not binding until the court is satisfied that all the elements have been admitted to and the sentence is sufficient.

Mr Labuschagne said that there was a feeling that this procedure should be limited to accused people who have legal representatives. He added that if this procedure were so limited it was questionable whether the provision would be able to achieve what they are intended to.

Mr J H Jeffrey (ANC) said that he felt the procedure could be used in respect of minor offences as well. He added that in the context on minor offences there was an additional problem. In the case of minor offences individuals might be pressurized into the plea bargaining process. This would come as a result of the fact that the court is overburdened and it is not uncommon for accused individuals to wait lengthy periods just to go to trial. In these circumstances the accused would plead guilty to a crime, which they may or may not be guilty of, so that they can serve the term for the minor offence and get out of jail. Mr Jeffrey also said that in certain cases society might just not desire such bargaining in relation to certain crimes, such as rape. He wanted to know if certain offences would be excluded as offences in regard to which plea and sentence bargaining agreements could not be entered into. In light of his question, Mr Jeffrey suggested that perhaps a reasonableness criteria be put into the equation.
Mr Labuschagne said that as it stood the Bill provided that the procedure applied to all offences. The exclusion of certain offences was a possibility , but was a political decision that would have to be taken by the Committee.

Mr Jeffrey asked to what degree consultation with the complainant was necessary and how much emphasis or weight was given to their representations.
Mr Labuschagne said that the position in the Bill was an improvement of the old as the law stood the court could try and sentence an accused without ever hearing from the complainant. Mr Van Vuuren added that in the context of the Bill all sentences, especially those involving compensation and damages, the complainant will have to be consulted. Adv de Lange asked what would occur if such consultation did not take place. Mr Van Vuuren said that this would be a basis for review proceedings.

Ms Chohan-Kota (ANC) wanted to know whether if the accused could enter into plea bargaining after the entry of a plea of not guilty, would the prosecution also be able to approach the defense after evidence has been led.
Mr de Lange said that as the law stood the prosecution could do this. The only thing that the Bill would confer on the prosecution that it does not already have is the ability to enter into negotiations regarding to sentence. Mr Van Vuuren added that the Law Commission had a different view on this matter. The Commission is of the opinion that once a plea had been entered the prosecution has only a limited ability to bind the court. The Commission also argues that once evidence has been led the prosecution is unlikely to enter into negotiations because it would have seen evidence relating to the guilt of the accused and could have proven the most serious offence has been committed.

Mrs S M Camerer (NNP) said that she was not opposed to the principle of plea and sentence bargaining but had two concerns. Her first concern was that although complainants were afforded a hearing, this hearing would take place before the prosecution and the accused. She suggested that surely the complainant should be able to present their case before the court. Secondly Mrs Camerer said the clause relating to signature provided that either the accused or their legal representative could sign the agreement. She suggested that perhaps the signature of both those parties should be required.

Interim Rationalisation of Jurisdiction of High Courts Bill
Adv de Lange told the Committee that the object of the Bill was to change the position relating to the jurisdiction of the High Courts. This was necessary in relation to those courts specifically in the old TBVC states.

Mr Labuschagne told the Committee that certain judges had requested that the Bill provide that judge presidents be able to consult on the matter. Th judges had been informed that this would be provided for as the Bill would provide for the Judicial Services Commission to consult on the matter.

Adv de Lange pointed out that the Judicial Services Council only met twice a year. In light of this perhaps the process suggested by the judges would be a better and quicker way to accomplish this consultation process.

Mr de Lange told the Committee that the Bill was submitted to Judge Presidents around the country for comment. He said that five had responded - with one judge having no comment and the other four supporting the Bill.

Adv de Lange noted that the submission from the General Council of the South African Bar submitted that the process should be done 'in' consultation with the Law Commission. The Law Commission was an advisory body and could thus not have a veto power.

Ms Camerer (NNP) felt that the rationalisation of the courts could surely not occur in the way suggested because the Constitution set out the procedure for the rationalisation of the courts.

Adv de Lange replied that what the Constitution set out was the procedure for the overall rationalisation of the entire court system. What was presently before the Committee was the interim rationalisation of the High Court jurisdiction - a situation that would be again changed with the final rationalisation of the courts jurisdiction.

Judicial Matters Amendment Bill
In the briefing on this Bill the Drafters went through the Bill clause by clause, explaining the effect of each. Amongst other things this Bill proposes to amend the Criminal Procedure Act by adding to Section 63A. This new section would provide for the situation where a prison has grown overcrowded and there is an immediate need to alleviate this position by releasing certain categories of detainees. The detainees that would qualify for release are those who have been charged with lesser crimes and have already been granted bail but cannot afford to pay the amount. These individuals would only be released if the prison was overcrowded.

Adv de Lange pointed out that the Bill provided that the detainee could be released subject to conditions or a reduction of the amount. Adv de Lange sought clarity, asking if he was to understand that despite being released without the imposition of a bail amount, certain conditions could still be imposed.

Mr Labuschagne said that this was correct and added that these conditions could include any of the conditions usually imposed in relation to bail. He added that there would be fixed requirements such as the fact that a certificate should be issued by the Director of Public Prosecutions, the granting of bail should be recorded with the clerk of the court and that the accused or their legal representative should be informed of the granting or denial of bail.

Adv de Lange noted that in the past when bail such as this was granted to detainees and they failed to be present in court, the courts claimed that as the court had not granted bail, it had no jurisdiction to issue a warrant of arrest as a result of failure to be present in court or a failure to observe the bail conditions.

Mr Labuschagne replied that this shortcoming would be remedied in the new Bill.

Mr A Nel (ANC) said that a provision such as this would create a problem as once individuals are released in terms of this provision, other prisoners under the same non-serious category but who remain in detention as they are in prisons that are not full, will complain.

Ms Camerer asked why prisoners were not merely transferred to prisons that were not full.

Adv de Lange told the Committee that research had been done and in Mitchells Plain the average bail imposed was R500 regardless of the offence. Whether the offence was rape, robbery or shop lifting the bail amount would more than likely be R500. This pattern was responsible for overcrowding and a skewing of the detainees for their respective offences. This information was taken to the relevant magistrates and the effect of this practice was illustrated to them. Since this disclosure, the magistrates have changed their ways - much to the benefit of the magistrate court system in Mitchells Plain. Adv de Lange added that it was however also important not to send a message to courts that leniency was in order.

TRC Remuneration: Voting
Adv de Lange told the Committee that the document listing TRC employees and their salary increases had been approved by the Minister of Finance and the TRC employees had indeed already received them. In answer to Mr M Mzizi (IFP) asking whether the Committee knew if these individuals had done their work or not, Adv de Lange said that such a question was a bit late as the TRC was already in the process of drawing up their final report. The TRC remuneration packages were approved unanimously.

Office of the Public Protector Remuneration: Voting
Adv de Lange noted that these salaries were also approved by the Minister of Finance. As in the case of the TRC remuneration, these salaries were coming before this Committee so that it could see what was happening and provide oversight. This process forms a part and is a means to the transparency and accountability called for by a democratic system. The remuneration packages were approved unanimously.

Legal Aid Directives: Voting
Adv de Lange said that these directives were there as an interim measure as Legal Aid did not have a guide. In its absence, Legal Aid has been allowed to draft a set of directives which detail how Legal Aid will deal with certain matters and pieces of legislation, such as the Criminal Procedure Act. Adv de Lange gave the example of the leave to appeal. The law regarding appeal had been changed to provide for a leave to appeal. In light of this change Legal Aid has drafted directives to provide for how it will deal with this matter. Adv de Lange added that this specific matter was now irrelevant because in a recent case a judge had restored the old position. The Directives were passed unanimously.

Appendix:
MEMORANDUM ON THE OBJECTS OF THE CRIMINAL PROCEDURE SECOND AMENDMENT BILL, 2001

OBJECTS OF BILL
The South African Law Commission (the Law Commission), as part of its investigation into the simplification of the criminal procedure (Project 73), considered the issue of plea bargaining. The Law Commission came to the conclusion that—
- plea discussions and plea negotiations, although informal, do take place in South Africa and are considered to be legal; and
- the Criminal Procedure Act, 1977 (Act No. 51 of 1977), does not regulate sentence bargaining.

Consequently, in its Report on the investigation, the Law Commission proposes that the Criminal Procedure Act, 1977, be amended so as to regulate sentence agreements in South Africa. The Bill gives effect to the Law Commission's recommendations, by making provision:

- that the prosecuting authority and an accused person may enter into an agreement in terms of which the accused will plead guilty to a specified charge, which will be subject to the imposition of a specified sentence; and
- for the procedures to be followed, and the powers of the court, in respect of such an agreement.

MEMORANDUM ON THE INTERIM RATIONALISATION OF JURISDICTION OF HIGH COURTS BILL, 2001

OBJECTS OF BILL
1.1 The principal object of the Bill is to confer on the Minister for Justice and Constitutional Development the power to alter the area of jurisdiction of High Courts, where this is necessary, after consultation with the Judicial Service Commission (Clause 2). This measure is proposed as an interim arrangement, pending the completion of the rationalisation of the Republic's Superior Courts, to enable the Minister to address serious inconsistencies relating to the territorial jurisdiction of certain High Courts. The jurisdictional boundaries of those Courts were drawn before the new dispensation and, as a result, still reflect the old RSA/homeland/TBVC-structure.

1.2 Clause 3 makes provision for the transfer of civil cases from one High Court to another, if it appears to the Court that the matter—

- should have been instituted in another High Court; or
- may be dealt with more conveniently in another Court.

This provision is largely analogous to section 9 of the Supreme Court Act, 1959 (Act No. 59 of 1959), and will ensure that the Courts can assist parties who have instituted proceedings in the wrong court, where it appears that the proceedings could more conveniently be dealt with by another Court.

MEMORANDUM ON THE OBJECTS OF THE JUDICIAL MATTERS AMENDMENT BILL, 2001

PURPOSE OF BILL
The main object of the Bill is to encompass in a single Bill a variety of amendments which do not require individual Amendment Bills. These amendments, to a large extent, correct deficiencies in certain provisions and repeal certain redundant provisions.

OBJECTS OF BILL
2.1 Clause 1 of the Bill amends section 10 of the Administration Amendment Act, 1929 (Act No. 9 of 1929), in order to provide that the Divorce Courts established in terms of the Administration Amendment Act, 1929, may hear any matter and grant any order provided for in terms of the Recognition of Customary Marriages Act, 1998 (Act No. 120 of 1998).

2.2 Clauses 2 and 3 of the Bill amend sections 3 and 9 of the South African Law Commission Act, 1973 (Act No. 19 of 1973), respectively, so as to bring the appointment of a member of the judiciary as chairperson of the South African Law Commission into line with the court structure as provided for in the Constitution, by referring to a judge of the Constitutional Court, Supreme Court of Appeal or a High Court.

2.3 Section 79 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), deals with enquiries into an accused person's:
- capacity to understand the criminal proceedings concerned; or
- criminal responsibility for the offence concerned.

Section 6 of the Criminal Matters Amendment Act, 1998 (Act No. 68 of 1998), which has not yet been put into operation, amends section 79(1) of the Criminal Procedure Act, 1977, and provides that such an enquiry must be conducted and reported on by a psychiatrist and, where the court so directs, a clinical psychologist. Subsections (8) to (12) of section 79 contain a number of provisions related to the appointment of psychiatrists for the purposes of conducting such enquiries, but similar provisions have not been made in respect of clinical psychologists. Clause 4 of the Bill aims to amend the provisions of section 79(8) to (12) by inserting appropriate references to clinical psychologists. This amendment will facilitate the implementation of the Criminal Matters Amendment Act, 1998.

2.4 Clauses 5 and 6 of the Bill amend sections 3 and 8 of the Rules Board for Courts of Law Act, 1985 (Act No. 107 of 1985), respectively, so as to bring the designation of a member of the judiciary as chairperson or vice-chairperson of the Rules Board for Courts of Law into line with the court structure as provided for in the Constitution by referring to a judge of the Constitutional Court as well.

2.5 Section 70 of the General Law Third Amendment Act, 1993 (Act No. 129 of 1993), which has not yet been put into operation, amends section 122 of the Road Traffic Act, 1989 (Act No. 29 of 1989), by inserting a new subsection (7A). The whole of the Road Traffic Act, 1989, was repealed by section 93(1) of the National Road Traffic Act, 1996 (Act No. 93 of 1996), which came into operation on 1 August 2000. Section 70 of the General Law Third Amendment Act, 1993, has become redundant and is therefore repealed by clause 7.

2.6 Sections 25 and 36 of the General Law Fourth Amendment Act, 1993 (Act No. 132 of 1993), which have not yet been put into operation, amended section 14 of the Occupational Diseases in Mines and Works Act, 1973 (Act No. 78 of 1973), and section 32 of the Minerals Act, 1991 (Act No. 50 of 1991), respectively. Section 14 of the Occupational Diseases in Mines and Works Act, 1973, has been repealed by section 6 of the Occupational Diseases in Mines and Works Amendment Act, 1993 (Act No. 208 of 1993), and section 32 of the Minerals Act, 1991, has been repealed by section 99 of the Mine Health and Safety Act, 1996 (Act No. 29 of 1996). Clause 8 therefore repeals sections 25 and 36 of the General Law Fourth Amendment Act, 1993.

2.7 Clause 9 repeals section 24 of the General Law Sixth Amendment Act, 1993 (Act No. 204 of 1993), which was enacted to regulate the granting of vacation leave and the resignation of civil servants for purposes of an election in terms of the Electoral Act, 1993 (Act No. 202 of 1993). Section 115 of the Electoral Act, 1998 (Act No. 73 of 1998), repealed the Electoral Act, 1993, making section 24 of the General Law Sixth Amendment Act, 1993, redundant.

2.8 Section 53 of the Criminal Law Amendment Act, 1997 (Act No. 105 of 1997), among other things, provides that sections 51, 52, 52A and 52B will cease to have effect after the expiry of a period of two years from commencement of the Act. It is, however, not technically correct to link the period of operation of sections 52A and 52B, which have been inserted in the Act by way of amending legislation, to the date of commencement of the Act. Clause 10 therefore amends section 53 of the Criminal Law Amendment Act, 1997, to provide that sections 52A and 52B will remain in force until sections 51 and 52 of the Act cease to have effect.

2.9 Clauses 11 and 12 amend sections 19C and 40 of the National Prosecuting Authority Act, 1998 (Act No. 32 of 1998), respectively, in order to further regulate certain executive functions of the Minister.

2.10 Section 26(2)(a) of the Maintenance Act, 1998 (Act No. 99 of 1998), provides that the person in whose favour ('' the applicant'' ) a maintenance or related order was made, which has remained unsatisfied for a specified period, may apply to the maintenance court where the order was made for the enforcement of such order. This requirement might place an undue burden on an applicant who wishes to enforce a maintenance order but who does not reside anymore within the area of jurisdiction of the maintenance court where the order was made. Clause 13 amends section 26(2)(a) of the Maintenance Act, 1998, to enable an applicant to approach the maintenance court within whose area of jurisdiction he or she is resident for the enforcement of a maintenance or related order.

2.11 Clauses 14 to 36 effect certain textual corrections to the Promotion of Access to Information Act, 2000 (Act No. 2 of 2000). Clause 37 similarly amends section 3 of the Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000), so as to correct the paragraph numbering in section 3.