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SECURITY AND CONSTITUTIONAL AFFAIRS
9 November 2007
REGULATION OF INTERCEPTION OF COMMUNICATIONS A/BILL & CRIMINAL LAW (SENTENCING) AMENDMENT BILL: DELIBERATIONS
Chairperson: Kgoshi L Mokoena (ANC, Limpopo)
Documents handed out:
Regulation of Interception of Communication and Provision of Communication related Information Amendment Bill [B9B-2006]
Criminal Law (Sentencing) Amendment Bill [B 15B-2007]
Members of the Committee were briefed by the Department of Justice and South Africa Police Service legal advisors, as well as representatives from the three mobile service providers, about the disputed principle, relating to the Regulation of Interception of Communications and Provision of Communication Related Information Amendment Bill (RICA Bill), whether foreigners should be permitted to “roam” on their cellphones in South Africa without registering. The Department of Justice had maintained throughout that there was a problem with “pre-paid roaming” which appeared to exist in certain countries. The service providers had previously stated that there was no such roaming, but, having done further research, conceded that it was in existence, but that this did not alter their contentions that it was impossible to block or allow individual roaming numbers, as the agreements applied network-to-network. The Chairperson indicated that there were some other high-level discussions ongoing at present, that might alter the situation in relation to the other areas under contention. The Committee decided to leave the Bill over to a further meeting.
The Department of Justice briefly outlined again the purpose of the Criminal Law (Sentencing) Amendment Bill. The main focus of the Bill was to extend the jurisdiction of the Regional Court, in certain matters, to impose a life sentence, with the safeguard that there should be automatic right of appeal, to impose a duty on the National Prosecuting Authority to formulate a policy as to which cases should be instituted in the High and Regional Courts, to provide that no child under 16 (not 14) could have a life sentence imposed, and to clarify that a Regional Court would have the ability to impose a discretionary sentence of between 15 years and life if it found that there were circumstances justifying less than the life sentence. A Court could deviate from imposing the life sentence if it found that there were “substantial and compelling” circumstances to justify it, but the new Section 51(3)(aA) set out four circumstances that could not be so used. Members were dissatisfied with this clause; some on the grounds that it seemed to depart from a fair trial if not all circumstances could be taken into account, and some on the grounds that setting out these circumstances would be an unjustified fetter on the discretion of the judges, and subject to constitutional challenge. The Department clarified that the Bill did not alter the rules of evidence, but applied only after sentencing. The Committee would continue with discussions in the following week.
Regulation of Interception of Communications and Provision of Communication Related Information Amendment Bill (RICA) – B9B-2006
The Chairperson noted that there had been some new developments in the matter, which he could not yet elaborate on, other than to indicate that the Office of the Deputy President, the Minister and the Director General of the Department of Justice (DOJ) had met the previous day.
The Committee had at its last meeting asked the legal advisers from the Department of Justice (DOJ) and the South African Police Services (SAPS) to meet, and he asked if there had been any developments.
Adv Deon Rudman, Deputy Director General, DOJ, noted that there had been some discussions, as also an attempt to understand how matters work. The one issue that came to the fore was pre-paid roaming. The DOJ had established conclusively that pre-paid roaming did exist in certain countries, and needed to be looked at carefully. In view of the intervention just referred to by the Chairperson, the DOJ and SAPS had not been able to come to any further conclusions.
Dr Philip Jacobs, Head: Legal Services, SAPS, noted that he too had established that there were a number of countries where pre-paid roaming did exist. However, from a policy point of view SAPS still felt that no registration of foreign "roaming" phones should be required, and pointed out that it would be impossible for the legislation to cover all issues.
The Chairperson asked the service providers to comment on the statements.
Mr Pakamile Pongwana, Manager, Executive and Regulatory Affairs, Vodacom, noted that the service providers had now done some further research, and he confirmed that this research had shown that there were some countries that had "pre-paid roaming". However, the service providers had checked the implications, and this made no difference to their previous view that it would be impossible, in South Africa, for the service providers to allow or disallow one roaming phone from making calls. A policy decision must be taken either to close the agreements between local and foreign providers altogether, or allow roaming as it was at present. There was still no possibility of being able to close down a single number. Roaming applied to a whole range between one network to another. Anyone who had "pre-paid" roaming would still have to be activated for roaming by their own (pre-paid) network, and their details would still be at the originating network in their own country.
Ms Louina Nunan, Senior Legal and Regulatory Advisor, MTN, and Mr Jaco Myburgh, Supply Chain Executive, Cell C, noted that although in South Africa outbound prepaid roaming was not active, inbound prepaid roaming was possible. Both confirmed that technically it was not possible in South Africa to activate or de-activate on demand.
Mr Rudman said that this created a situation that needed to be looked at seriously. It had been previously categorically stated that there was no such thing as pre-paid roaming. The DOJ had insisted that there was. The question of the identity of a person with a pre-paid roaming cell phone must be examined carefully. He did not think that it was possible to deal with the matter now, but stressed that this was an issue to bear in mind in deciding whether to have registration.
Mr Pongwana said that the reason pre-paid roaming was not initially allowed was the problem that arose in billing. A contract customer could be billed, whereas a pre-paid customer exceeding the limit could not be billed. The question was whether there would be the possibility of tracking the number, and that would depend on how the number was activated. It was not possible for Vodacom, for instance, to activate a foreigner here at the moment. Technically, therefore, there was still a problem. However, the concerns and comments of the SAPS on being able to access records of customers remained valid. The original network overseas would hold the records. The local service providers would be aware of what number was using the network, even if they could not link it immediately themselves to the identity of the person using the number.
Ms Nunan stated that at the previous discussions, the position on prepaid roaming may inadvertently have been misrepresented. The service providers had now gone back and researched the issue, and wished to note that pre-paid roaming was in a discussion stage. She further clarified that there were three types of contracts: pre-paid, post-paid, or post-paid with a prepaid top-up facility, if the subscriber ran short during the month. She was sure that all the operators would consider the point relating to roaming before implementing the systems. She stressed that the systems in South Africa did not allow for individual de-activation on a roaming number.
The Department of Justice indicated that it did not wish to respond at this point, in view of the sensitivity around the pending discussions.
The Chairperson asked if the Committee Members wished to deal with the remaining clauses, or stand over the entire Bill pending some further settlement on the contentious clauses.
Dr F van Heerden (FF+, Free State) was hesitant to discuss anything at this stage. Inputs may impact on what the committee had been discussing. He suggested that the entire matter stand over.
All other Members were in agreement. The Committee would meet to finalise the Bill, if the reports were through in time, the following week.
Criminal Law (Sentencing) Amendment Bill: Deliberations
Mr Johan de Lange, Principal State Law Advisor, DOJ, again summarised briefly the intention of the Criminal Law (Sentencing) Amendment Bill.
Mr de Lange noted that this Bill was intending to repeal the current process around certain matters – particularly rape, including rape of young children – heard Regional Courts. Rape attracted a “minimum” life sentence in certain circumstances. The Regional Courts presently did not have jurisdiction to impose life sentences. If the Court in a Regional Court trial found the accused guilty, then the process must stop and be transmitted to the High Court for sentencing. This resulted in long delays, the witness would need to wait, and there was secondary trauma because the witness may have to give testimony and be subject to cross examination again.
This Bill therefore gave Regional Courts jurisdiction, in the cases of offences listed, to impose sentences up to life imprisonment. There were safeguards built in. There had been some argument whether this was strictly necessary, but it was probably the best approach to follow. If a Regional Court sentenced an accused to imprisonment for life, there was an automatic exception to the Rule that leave to appeal must be obtained before an appeal could be lodged. Here, there would be an automatic right of appeal. The second point related to the discretion around the finding of “substantial and compelling circumstances”. He stressed that the term" minimum sentences' was a misnomer. There were not mandatory sentences as applied elsewhere in the world. In South Africa, the Court was not forced to impose a certain sentence. There was an indication from the legislature that in respect of certain offences, a life sentence should be imposed. However, if the Court found “substantial and compelling circumstances” not to impose a life sentence it could do so. In terms of this Bill the Court would need to note exactly what those circumstances were. It would then be able to impose a sentence less than the life sentence.
This had created a little uncertainty in the past, as some had interpreted the legislation to mean that if the Court found the substantial and compelling circumstances, it would then have to give a sentence only up to the general 15-year jurisdictional limit of the Regional Court. The legislation had not intended that the Court could sentence either to life, or 15 years, but nothing in between. Therefore the matter was now clarified by way of a technical amendment so that in these specific instances covered by the Bill, the Regional Court could impose anything between 15 years and life, as appropriate.
Another area of concern had been the instances where the Courts had found compelling and substantial circumstances. There were a number of instances where the legislature and society did not think that their findings had been appropriate. The Bill now contained a new Section 51(3)(aA). This stated that when imposing a sentence, the Court could not regard certain listed circumstances as “substantial and compelling” – and this included the previous sexual history of the complainant, the apparent lack of physical injury to the complainant, cultural or religious beliefs of the accused, or any prior relationship between the accused and complainant.
Finally the Schedules to the Criminal Law Amendment Act (CLAA) needed to be cleaned up. The Schedules set out the crimes in which minimum sentences could be prescribed. Part IV was being re-written because the offences originally were not listed in the Schedules, but were cross referenced to the Schedules of the Criminal Procedure Act (CPA), which did not make for easy reading. Schedule 1 of the CPA had listed certain offences in which a firearm was used to commit the offence, but it was not always consistent, as it had also included offences that did not, by their nature, involve use of firearms, such as fraud. The re-writing of the Schedules would make the legislation clearer.
Part I of Schedule 2 of the CLAA dealt with the offences in respect of which a minimum sentence of life imprisonment was provided for. Clause 5 inserted two new offences. One related to the victim being killed for removal of body parts, which would include "muti killings" or unlawful trading in body parts. The other had inserted a cross reference to deaths from offences committed under the Witchcraft Suppression Act, which would usually involve a murder after a person had been named as a witch. It was possible that offences committed under these circumstances could be covered elsewhere, but this inclusion sent out quite a clear signal. The insertion of these clauses had followed a request from the Premier of Limpopo, as a result of the high frequency of these type of offences in that province.
Mr de Lange drew Members’ attention to Clause 6. If a person younger than 14 committed any of these offences, the Act had prescribed that the minimum sentence would not apply, and the Bill now raised that threshold age from 14 to 16. No person under 16 could be sentenced to a minimum sentence. The Bill then provided for further protection for accused persons between 16 and 18, in particular relating to the noting of an appeal without the need to make application for leave to appeal.
Mr de Lange stressed that it was not the intention of the Court just to give the Regional Courts the power to impose life sentences. There must be a clear decision by the National Prosecuting Authority as to which cases should be prosecuted in the Regional, and which in the High Court. If it was clear from the outset that the crime was of such a nature that life imprisonment was likely to be imposed, then the prosecution should be instituted in the High Court. However, there were cases in which the full circumstances might come to light only after the trial had commenced, and this was why the higher jurisdiction was being given to the regional court, to avoid the necessity of transferring the cases. An obligation was however being put now on the National Director of Public Prosecutions to draw a prosecution policy and directives would be issued under that policy. These must be issued within three months of the date of the amendments.
Mr de Lange noted that Clause 8 was making a technical amendment to the Prevention of Organised Crime Act (POCA). This Act had also contained a provision relating to transfer of cases from Regional to High Court, and it was therefore necessary to bring it in line.
Dr van Heerden noted that referral of an accused for sentencing delayed the agony of accused and victim. Even if there was automatic right of appeal, he felt that it would not make much difference to the delay. The experience in the criminal justice system was that accused would sit for many years waiting to have their appeals heard.
Many Members expressed their concerns around the new Section 51(3)(aA). All concerns were listed, and then Mr de Lange answered them in a composite statement.
Dr van Heerden had concerns on the grounds that were listed as not being allowed to constitute “substantial and compelling circumstances” in Section 51(3)(aA). He noted that many successful appeals had turned on precisely those circumstances listed in sub-clauses (i) and (iv). He believed that the discretion of the Court hearing that matter would be hampered by this prescription. He had noted the arguments about separation of powers and functions of the judiciary and the legislature – particularly in the Malgas case, and he wondered if putting this prescript into the Bill was not crossing the line into interfering with the discretion of the Courts.
Mr Ntuthuzelo Vanara, Parliamentary Legal Advisor, raised a query around the practical aspects. He noted that there was a presiding officer, the prosecutor, and an attorney representing an accused. The four aspects listed in the sub clauses of section 51(3)(aA) were most frequently what the prosecution had failed to prove in order to get the maximum sentence. He believed that if the previous sexual history of the complainant had not been raised in a very well-publicised rape trial recently, this might well have resulted in conviction of the accused. He thought that in fact the prosecuting authorities were probably being assisted by this legislation to prove their cases. It was incorrect to use the legislature to try to interfere with the judicial discretion by prescribing what the judiciary should not take into account.
Mr N Mack (ANC, Western Cape) thought that all relevant evidence must be used in every case. He believed that all the circumstances should be used as substantial and compelling circumstances both in obtaining a conviction and when sentencing. He noted that when prosecutions under the old Immorality Act had taken place, it was frequently claimed that the man had raped the woman – and neither her sexual history nor her relationship with the accused were taken into account, leading to many innocent men being jailed. Although the Immorality Act no longer applied, there were still class distinctions, and a woman would often prefer to claim that she was raped rather than accepting responsibility for her own actions, if her peer group did not approve of her actions.
Mr E Sogoni (ANC, Gauteng) asked if the previous engagement that the Committee had had with experts had analysed the individual clauses from (i) to (iv).
The Chairperson wondered why the accused's history would be taken into account, but not that of the complainant.
Mr Vanara noted that an accused in a relationship with a complainant might be aware that the complainant had a history of having lodged false allegations of rape against her previous sexual partners. Rape was easy to allege but difficult to disprove. He believed it was wrong to disallow the accused from raising as a defence the fact of the complainant’s sexual history and the fact that she had lodged three complainants of rape before.
Dr van Heerden noted that in a fair trial, all the facts must come before the Court. He believed that the exclusion of certain elements would not allow for a fair trial. He would not object to (aA)(ii) and (iii) but would strongly object to (i) and (iv).
At this point Mr de Lange intervened to stress strongly that there was nothing in this Bill that affected the rules of evidence. Every provision in this Bill kicked in only after the conviction was obtained. The Bill would only change the rules relating to sentencing. It would not change any of the rules relating to the conviction.
Mr A Moseki (ANC, North West) noted that this Bill was intended to protect victims of sexual offences. He would like to avoid a subjective approach. He believed that there was need for objective legal advice.
Ms Hala Sangoni, Senior State Law Advisor, Office of the Chief State Law Advisor, stated that this Bill had been certified as being constitutional, and there was nothing in it that was in any way denying rights to the accused or complainant. The Committee must consider the position of the complainant and the accused.
The Chairperson agreed that there should not be a bias to victim; the Bill must be balanced. He noted that the Office of the Chief State Law Advisor had been incorrect in some of its previous certifications on constitutionality, but he did not wish to dwell on that.
Mr de Lange stressed again that the provisions of this Bill would only apply when the court was imposing the sentence. Prof Terblanche of UNISA had pointed out that the complainant’s sexual history could be taken into account when considering whether the accused was guilty. So too could the apparent lack of physical injury as if the complainant alleged that she had been injured, but the District Surgeon had found no injury, this would call into question the credibility of the complainant. Although the cultural and religious beliefs might not play such a great part in the conviction aspects, once again the matters in (iv) – the previous relationship between accused and complainant – could also be placed in issue, as once again this could relate to credibility of witnesses.
When the accused had been found guilty, these circumstances listed in (i) to (iv) would not apply to the sentencing procedures. The Court was under an obligation to impose a minimum life sentence only if it could not find that substantial and compelling circumstances existed that would justify a lesser sentence.
Mr de Lange stressed that the “substantial and compelling circumstances” had been very broadly interpreted by judges in the past, and this had resulted in many cases in justice not being seen to be done. He cited a case in which the accused was found guilty of having raped his minor daughter over a long period, with enormous trauma to the daughter. The judge said that the accused was not a threat to society at large, and had further used that close relationship between accused and victim as substantial reason not to impose a life sentence. Various NGOs and researchers and members of the public had all expressed their severe dissatisfaction with this kind of judgment.
Mr de Lange noted that the lack of physical injury was another matter under contention. He cited a case in which the accused had abducted a woman and raped her several times, stripping her of all her clothes. He then locked her in the room and went downstairs. The victim tried to escape by jumping out of a window, had landed badly and had then been grabbed again by the accused, who beat her up and raped her further. The majority judges nonetheless found that there were no "serious injuries", and had taken this, the accused’s relatively young age (29) and the fact that he was employed as circumstances justifying a lesser sentence. The dissenting judge had commented that he could not imagine a more serious case and believed that this definitely did justify a life sentence.
Mr de Lange noted that it was not for him to decide the policy. However, he pointed out that the Portfolio Committee on Justice had considered the matter at length and had taken into account concerns expressed by a wide range of people. The principles underlying the imposition of so-called “minimum sentences” had been considered twice by the Constitutional Court. That Court had held that the legislature had a real and legitimate interest in sentencing and had upheld the Act as it stood at present. The only material change now being proposed was to (aA). The Portfolio Committee conceded that there might well be challenges but they would prefer to deal with those if and when a challenge was brought. In the meantime it considered that including the clause in its present form was a clear indication that the legislature had been unhappy with what the courts had been doing.
Dr van Heerden noted that a rape prosecution, finding and sentencing was extremely serious. He could cite a number of successful cases where the presiding officers had not considered substantial and compelling circumstances properly. The cases referred to by Mr de Lange were in his view incorrectly decided and the reasons were inappropriate. However, he did not agree that this was necessarily a matter for legislation as the prosecutors in such matters could have appealed.
Dr van Heerden noted that there could well be a challenge to the clause. However, he was worried about what would happen to matters heard until such time as there could be a challenge. He noted that the Select Committee was the second “filter” for legislation and this would not be the first time that this Committee had challenged what the Portfolio Committee had decided. He was not convinced at all by their views. Similarly he was worried about their input on the RICA Bill. This Committee was not to be regarded as a rubber stamp for the Portfolio Committee.
Mr Vanara stated that his points had related to the right to a fair trial – and that right did not end on conviction but carried on right through the sentencing. He had made the comparisons because the prosecution had complained that it was losing cases and he wondered if there could be a fair trial if the legislature was being used to "fight the battles" of the prosecution.
Mr de Lange expressed his concern at this comment.
The Chairperson recalled that input made to the Committee had suggested that a clause should be added to allow Friends of the Court to make a presentation to assist the complainant. He too had difficulty with the concept that a Court, when imposing a sentence in respect of a rape offence, should be required to disregard the history of the complainant. He had great sympathy for the plight of women, but the reality was that a woman could and often would frame a man who had displeased her.
Mr de Lange noted that he had not been present when the discussion around Friends of the Court took place, but it was difficult to deal with such procedural matters in legislation.
Mr Sogoni asked for clarity around the automatic right to appeal from a minimum sentence imposed by the Regional Court, and the amendment to Section 309 of the Criminal Procedure Act.
Mr de Lange explained that Clause 6 was amending the Criminal Procedure Act, not the Minimum Sentencing legislation. As the CPA currently stood, a person wanting to appeal would need leave to appeal. The general provision was stated in (a). The rest of the clause was then a proviso so that if a person was now sentenced by the Regional Court, there would be an exception to the general rule and there would be an automatic right of appeal
Mr Sogoni asked also for clarity around the 15 year general sentencing jurisdiction, and the life sentence.
Mr de Lange expanded further on what he had said before. He stated that in respect of the so-called “lesser” offences set out in Parts II, III and IV of the Schedule, 15 years imprisonment (plus a further 5 years in certain circumstances) could be imposed. The effect of the amendment was that the Court was not bound only to the 15 years, or to life, but could impose another suitable term, of up to 30 years.
The Chairperson noted that discussions would continue on 15 November.
The meeting was adjourned.
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