International Criminal Court Bill; Interim Rationalisation of Jurisdiction of High Courts Bill; Judicial Matters Amendment Bill:

Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
27 September 2001
INTERNATIONAL CRIMINAL COURT BILL; INTERIM RATIONALISATION OF JURISDICTION OF HIGH COURTS BILL; JUDICIAL MATTERS AMENDMENT BILL: BRIEFING

Chairperson: Adv J H de Lange

Documents Handed Out:
International Criminal Court Bill [B42-2001]
Interim Rationalisation of Jurisdiction of High Courts Bill [B44 - 2001]
Judicial Matters Amendment Bill [B43 - 2001]

SUMMARY
In the discussion on the International Criminal Court Bill one of the main issue arising was that the Bill created penal jurisdiction without creating any crimes. Many of the crimes in the Bill were not crimes in South Africa and would have to be made so. Another issue was the enactment of the Rome Statute into our law and the technical manner in which this could best be done. The Statute is the Rome Statute of the International Criminal Court, adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court on 17 July 1998 and ratified by the Republic of South Africa on 10 November 2000

The consideration of the Interim Rationalisation of Jurisdiction of High Courts Bill was straight forward. It involved the consideration of a small number of changes that the Committee had called for. The Bill was ready to be voted in but the Committee refrained from doing so because members had yet to receive their mandates and the Minister needed to be consulted.

In the context of the Judicial Matters Amendment Bill the main topic of discussion was the new section 63A which provided that when a prison population reached such numbers that there was a material and immanent threat to the human dignity, physical health and safety of an accused, then the head of a prison could release certain categories of detainees. Only detainees who had already qualified for bail, in relation to minor offences, but could not afford to pay such bail could be so released. The argument which arose was whether the requirement of overcrowding was justifiable and whether it should be included as a requirement for such release.

MINUTES
International Criminal Court Bill
Adv de Lange pointed out that there seemed to be three amendments. The first was a new preamble, which was a little more detailed. This was in accordance with a suggestion made by the Committee. The second amendment concerned the issue of whether the Rome statute would be enacted into law here or whether the statute would be included schedule of the Act. The third amendment related to the spelling out and creation of crimes.

Preamble
The Committee considered the preamble first. Adv Basset, the State law advisor from the Justice Department, introduced the Bill to the Committee saying that the preamble was changed to resemble the preamble of the Rome Statute itself more closely.

The Committee upon inspection of the new preamble took issue with a number of grammatical points. It was in the opinion of the Committee that certain sections of the preamble could have been phrased better. The first was Dr J T Delport (IFP) who took issue with the phrase 'history of time'. He submitted that a better formulation would be to say, 'the history of humankind' or 'throughout history'.

Imam G Solomon (ANC) submitted that the use of the word 'heinous' should be reconsidered.

Ms F I Chohan-Kota (ANC) noticed from the substance of the preamble that it mirrored the preamble of the actual Rome Statute. The reason this legislation was being enacted was because of a relatively recent trend in crimes. She submitted that the phrase 'throughout the history of time' would only detract from the gravity of the legislation. This was because the problem was a recent one, involving serious violations of human dignity and respect for human life. These crimes have perhaps been committed for a long time, but not throughout the history of time. She also submitted that the preamble was lacking a sense of the need or resolution held by those enacting this legislation, to bring these crimes to justice. She said the preamble lacked the spirit in which the court was to be established.

Adv de Lange agreed, pointing out that the original preamble was changed because the preamble in the Statute was more substantive, but now in expanding their own preamble a whole new array of problems have been created.

Adv M Masutha (ANC) submitted that the creation of an international criminal court was a challenge to South Africa, a request to formulate legislation. For this reason we should adopt a preamble reflective of the fact that South Africa has its own unique past and that its people were victims to crimes as enumerated in the Statue. To this end, Adv Masutha suggested that the second paragraph of the preamble be changed or adapted in such a way that would make it uniquely South African.
Adv de Lange was of the opposite view and asked the Committee how they would feel if this paragraph was completely removed from the text. He submitted that there was no need for this paragraph as the others covered all the necessary areas.

Clause 2:Enactment of Rome Treaty into SA law
The next clause for consideration was clause 2 of the Bill. The original clause, as published, was rejected and changed. The clause now read, "The Statute is hereby enacted into law in the Republic." Adv de Lange pointed out that there seemed to be an anomaly. The problem arose because first clause 2(1) enacted the Statue into law in the Republic, then in the definition of statute, 'the Statute' is defined and then it is also pointed out to be contained in Schedule 1. Adv de Lange was concerned that the enactment of the statue into law and the inclusion of the statute in schedule one was overkill. Adv de Lange suggested that a better formulation might be to change the definition of 'the Statute' and provide in clause 2(1) that "the statute as set out in Schedule 1 applies in South Africa".

Ms F I Chohan-Kota (ANC) submitted that the problem was not the definition but the actual enactment of the Schedule into law in clause 2(1). If the Statute was contained in a Schedule to the Act and the Act is enacted into law then the Schedule would then form part of our law and would not have to be specifically enacted into law.

Adv de Lange then changed his mind saying that he now felt the way in which it was done in the Bill was correct.

Ms Chohan-Kota reiterated that if the whole Statute was inserted into the Schedule of the Bill then it was not necessary to re-enact it. Adv de Lange conceded that her point was correct.
Adv M Masutha (ANC) was, however, of a different opinion. In his view attaching something to an Act, for example in the form of an annexure, did not necessarily mean that the schedule would then form part of the law. An example of this would be the Code of Good Practice attached to the Labour Relations Act. Instead items such as these needed to be enacted into law through the body of the text.
Ms Chohan-Kota responded that this could not be true as items such as schedules needed to be expressly excluded or repealed. Adv Masutha said this militated in favor of his position because nothing could be assumed. Items such as these did need to be specifically repealed, but similarly they also needed to be specifically included by being enacted into law in the Act. Pieces of legislation either had their basis in the Constitution or from Parliament and if they derived from neither one, nothing could be assumed.

Adv de Lange pointed out that hypothetically he would not have a problem if the Statute was excluded and the Bill was enacted. However, if you say that the Rome Statute is law and include it in the Schedule, but then also define the Statute as including the Schedule there seems to be duplication. Adv de Lange said the same problem had been encountered with the Diplomatic Immunities and Privileges Bill.

At this point Adv de Lange addressed Mr Pienaar, the drafter of the Bill, from the Department of Justice, saying it was up to him to research the situation and determine the best or proper way to construct the legislation.

Spelling out/Establishment of crimes in SA
The next issue was raised by Dr J T Delport (DP) who referred to Articles 5 and 8 of the Statute. Article 5 contained those crimes, which the court would have jurisdiction over, and Article 8 enumerated these crimes. Many of these crimes were not crimes in South Africa and would need to be made so, as the Statute could not render these transgressions 'crimes' in South Africa. Adv de Lange agreed, saying that the provisions of the Statue created only the jurisdiction of the International Criminal Court and even through clause 4 of the Bill these crimes could not be created in South Africa. Instead these offences would have to be made crimes in South Africa.

Dr Delport suggested that in the preamble South Africa recognises the fact that there have been atrocities and the other concerns addressed in the preamble. Furthermore, in the preamble we profess to give effect to the Rome Treaty as ratified and set out in Schedule1. In other words the Schedule is attached as a body of principles which South Africa chooses to abide by. Adv de Lange confessed that he found Dr Delport's submissions to be very good but they would involve the huge task of 'unpacking' all of the crimes in Article 8 of the Statute. The problem was that the Statute did not create offences but merely gave rise to a penal jurisdiction. As a result Adv de Lange requested that the crimes be created in this Bill, a task that would mean a possible rewrite.

Ms Chohan-Kota interjected that South Africa did indeed have some of these crimes and as a result, instead of a complete rewrite, the Bill would only have to deal with those crimes which did presently not exist in South Africa. This procedure would require an analysis into which crimes did and did not exist in South Africa and on this analysis the relevant crimes could be created.

Ms S M Camerer (NNP) said that the Committee had received a submission which made an interesting point on the matter. This submission said that the Statute could be enacted into law without any problem. However in these circumstances only those offences which were currently crimes in South Africa would be crimes, in the strict sense of the word. Ms Camerer asked how those items listed in Schedule 8 would be made crimes in South Africa, professing that she was a bit apprehensive about doing it through a schedule. The example she gave was of the crime of 'trafficking in people' saying that these was no such crime under South African law or even anything closely resembling it. Matters such as this would need much attention.

Adv de Lange mentioned the crime of genocide created in the Statute. There were also other crimes defined in the Statute. This brought to light the fact that each of these crimes would have to be defined as well as the elements of these crimes spelt out. Who would do this?

Adv Masutha submitted that South Africa was obliged to recognize International Law. He admitted to not knowing what practical implications this would have, as he was unsure to what extent the courts would actually apply international law. He said however that the courts would be informed by International Law. On this matter Imam G Solomon (ANC) said that a common sense view was needed. South Africa had international obligations that needed satisfying, but he wondered whether other countries were also discussing the matter in a manner similar to the Committee. Adv de Lange said that other countries were also presently engaged in a similar process, South Africa was however one of the first.

Adv H C Schmidt (DP) proposed a way forward. He noted that the Committee did not have the knowledge or expertise to deal with the matter properly. He however stated that there were individuals, such as Mr J J Du Toit and Judge Goldstone, who did have expertise in the area. Adv Schmidt pointed out that these two individuals had been to the Hague as a prosecutor and a judge, respectively, in a trial before the International Criminal Court.
Adv de Lange noted the suggestion but said that although these individuals would be able to assist the Committee in relation to the establishment of the Tribunal in terms of the Statute, but would not be able to assist in the reconciliation of the Statute with South African law.

Mr L T Landers (ANC) called for an explanation from Prof Rwilmira [a member of the inter-departmental committee which was responsible for the introduction of the Bill] of the provisions in the Statue which obliged South Africa to give the International Criminal Court the necessary resources when it needed to sit in South Africa. Another problem was that the South African extradition laws were very weak. In a recent case which required the extradition of three accused, only one of the accused went to the Hague because he agreed. The other two did not go because they did not agree and the extradition provision was too weak to force them to go.

Mr Basset resolved to go back to the committee and decide on what the best possible way would be to approach the Bill.

Interim Rationalisation of Jurisdiction of High Courts Bill
Clause 2
Here the Committee considered a number of changes, which had been effected on its own recommendations. The first was a change to clause 2(1), which dealt with the Minister altering the area of jurisdiction of any high court. Originally the clause provided that the Minister could, after consultation with the Judicial Services Commission (JSC), alter the area of jurisdiction of a high court. Now the section was changed to provide that this decision could be taken by the Minister after consultation with persons referred to in subsection 2. Subsection two listed these persons as the Chief Justice, the President of the Supreme Court of Appeal and the Judges President of the High Courts concerned. This change was effected to accommodate for the concern that the JSC only met twice a year, which was too little.

Clause 4
The next clause considered was clause 4, a new clause which repealed certain subsections of the First Schedule. The clause however contained a saving notwithstanding clause that provided that the seats and the areas of jurisdiction of the High Courts referred to in the First Schedule would, subject to any alteration under section 2, remain as they were immediately before the commencement of the Act.

Adv de Lange was unclear on the provision saying that there seemed to be an inconsistency. He was however assured by Mr de Lange, the drafter presenting this Bill before the Committee, that this was a standard drafting procedure. He told the Committee that it was an accepted practice to repeal a piece of legislation but then to provide that despite being repealed, the legislation will apply until other legislation is enacted to take its place.

Judicial Matters Amendment Bill
The new section 63A provided that when a prison population reached such numbers that there was a material and imminent threat to the human dignity, physical health and safety of an accused, then the head of a prison could release certain categories of detainees. Only detainees who had already qualified for bail, in relation to minor offences, but could not afford to pay such bail, could be so released. The argument that arose was whether the requirement of overcrowding was justifiable and whether it should be included as a requirement for such release.

The Correctional Services Portfolio Committee was currently considering a similar matter. There was legislation, which sought to provide that the Minister of Correctional Services could amend the amount and conditions of bail. Adv de Lange immediately interjected saying that this could not be done as it constituted a gross violation of the principles of the separation of powers. Mr de Lange's response was that the Correctional Services Committee had indicated that they saw nothing wrong with the proposed course of action.

Adv de Lange was of the opinion that the Correctional Services Committee could do as they pleased. However, the Justice and Constitutional Development Portfolio Committee would not associate itself with their actions. Mr Johan de Lange indicated that the Department of Justice shared the same sentiment. He pointed out further that Judge Fagan, the head inspector for Correctional Services, was pleased with the provision as contained in the Judicial Matters Amendment Bill

Adv Masutha raised the point that subsection (1) provided for the bringing of such an action by the head of the prison. He asked whether the head of the prison only could bring such an application. If not it would be necessary to provide more comprehensively on the matter.

Mr de Lange said the test was very deliberately a subjective one. This was done to protect the head of a prison from external pressures and to prevent the situation where it would be possible for a legal representative to put pressure on the head of a prison or to even bring the application themselves.

Adv Masutha was of the opinion that surely some objective criteria was necessary otherwise the head of the prison would be open to bribes and other negative factors. Adv de Lange was quick to point out that bribing would not be a real concern. This was because the section would apply to detainees who had already been granted bail but simply could not afford to pay it. So if these individuals had money to bribe the head of the prison it would be easier just to pay their bail.

Dr Delport took issue with the fact that the bringing of such an application hinged on the prison population. All the requirements except this one had a logical basis. He gave the example of where detainees, held for minor offences, were released in this manner while other detainees guilty of the same crimes would remain in custody simply because they found themselves in a prison which was less full. This was unfair especially since even in a less full prison the dangers to a detainees life and human dignity might be even more material or imminent. Dr Delport went further than this and said that if one did away with the overcrowding requirement, then logically one would have to allow for detainees to bring this application themselves. However, he also made it clear that he was no more sympathetic to these individuals than the next person, but on a logical consideration these conclusions were not unfounded.

Adv de Lange said he liked Dr Delport's first point that the over crowding requirement was not logically sound but could not and would not agree with his second proposition that prisoners be allowed to bring such an action. He warned here that the effect of too wide a clause would have the effect of doing away with bail in relation to minor offences.
In agreement with Adv Schmidt said that he too felt that the overcrowding requirement was not justifiable but said that prisoners should not be allowed to bring these actions.

Ms Camerer reminded Members of the purpose for bringing this legislation in the first place. The mechanism was brought to cure the situation where prisons reach a critical population. Now on the new suggested formulation, detainees are given 'a second bite at the cherry', a second chance to get bail. She contended that as soon as an accused walked into prison they would have a reason to walk out again. The reason for bringing this legislation was to alleviate overcrowding, once the reason was taken out the only effect the legislation would have is to further burden the courts. The concept of human dignity, overcrowding and the threat to life and health might as well have been brought up at the initial bail hearing

Adv de Lange said that he would not engage in an argument at that point. He pointed out that in either case, whether the overcrowding requirement is in place or not, it will be the head of the prison who will have sole discretion to bring such an action.

Mr Landers said that he agreed with Ms Camerer's view but noted that the problem was that there were people in prison who should not be there. The example he gave was of people in jail for stealing a loaf of bread. These individuals stay in prison because they cannot afford to pay their bail. After a lengthy period of time they go to trial and receive a sentence of one month. This sentence comes after they have sat in a prison for six months just awaiting their trial.

Dr Delport urged the Committee to note that the problem in issue could only be dealt with if the cause was identified. The cause was the fact that magistrates set unreasonable bail. He said he knew how bail worked in practice. If it was four o' clock on a Friday afternoon and there were still ten bail hearings to go, then the magistrate cuts corners, not considering each matter fully. This happens despite the fact that the police could have dealt with the individual better, meting out a more appropriate and realistic bail. Dr Delport stated finally that he was opposed to giving bail to people who did not deserve it, but felt it should be noted that there were people in jail who really did not need to be there.

The meeting was adjourned.