Voting on Scorpions Legislation - National Prosecution Authority Amendment Bill; Judicial Matters Amendment Bill

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Justice and Correctional Services

17 October 2000
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Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
18 October 2000
JUDICIAL MATTERS AMENDMENT BILL; SCORPIONS LEGISLATION IN NATIONAL PROSECUTION AUTHORITY AMENDMENT BILL: VOTING

Chairperson: Mr JH De Lange

Drafters: Adv Labuschagne and Adv De Lange

Relevant Documents:
Judicial Matters Amendment Bill [B63-2000]: Draft 3 Amendments
National Prosecution Authority Amendment Bill: Scorpions legislation
Resolution (draft): Judicial Matters Amendment Bill (see Appendix 1)
Committee Report on National Prosecution Authority Amendment Bill and Judicial Matters Amendment Bill as published in the ATC, dated 26/10/00 (see Appendix 2)

SUMMARY
The Judicial Matters Amendment Bill and the Proposed Amendments to the National Prosecution Authority Act were passed unanimously with amendments. The Democratic Party abstained from voting on the National Prosecution Authority Amendment Act as they needed to check the final wording of the Bill.

MINUTES
Judicial Matters Amendment Bill
The Chairperson reviewed and summarised the changes the Committee had agreed to on the Bill. The bulk of amendments here are technical ones. A few are outlined below:

Clause 3
This clause will be deleted due to problems with the interpretation of the term "law".

Clause 8
This clause has changed the jurisdiction of bail applications from the regional to the magistrates court. This is to "take the pressure off" of regional courts.

Clause 17
This clause was described by the Chairperson as representing a very progressive change. It allows a legal clinic that provides services free of charge to collect costs from the unsuccessful party when it wins a case. This will help to fund organisations that provide free legal services.

Vote
All present voted unanimously in favour of the Motion of Desirability, the Bill as amended and the Resolution as amended. The Bill was therefore passed.

Scorpions Legislation: Proposed Amendments to the National Prosecution Authority Act
The Committee reviewed and confirmed the changes it had made to date. As with the previous Bill, most are technical.

Preamble
The following clauses were added to the Preamble:

And whereas the Constitution does not prohibit Parliament from amplifying the power and functions of the prosecuting authority in national legislation;

And whereas the Constitution does not provide that the prevention, combating, or investigation of crime is the exclusive function of any single institution;

Clause 18
This clause adds a new section 40A to the Act. The Committee agreed to change the draft of 40A(3)(c) to read, "the accused was a South African citizen or domiciled in the Republic at the time of the commission of the offence." The Chairperson noted that this gives a stronger ground for jurisdiction and casts the net wider.

Resolution
The Committee agreed to the following resolution:

Clause 18 of the Bill inserts a new section 40A into the National Prosecuting Authority Act, 1998. This new section creates certain offences relating to unlawful access to, tampering with or modification of, computers belonging to the National Prosecuting Authority, including the programmes of, or date held in, such computers. This provision is similar to legislation pertaining to the South African Police Service and the Department of Correctional Services.

In view of the increasing reliance on computers and the rapid development of information technology systems, and the fact that the safeguarding of these systems through appropriate legislation is still the subject of comprehensive research in this country, the Portfolio Committee is of the opinion that similar provisions should, in the meanwhile, be considered by all government departments. The Portfolio Committee therefore recommends that all Departments should look into this matter and, if appropriate, that the Ministers concerned should submit the necessary draft legislation in this regard to Parliament.

Vote
The Committee voted on the Bill. All present voted unanimously in favour of the Motion of Desirability and the Bill as amended, with the exception of Adv Schmidt (DP) who abstained until his party could have more time to check the Bill's final wording. The Bill was therefore passed.

Appendix 1:
RESOLUTION: DRAFT 3

Report of the Portfolio Committee on Justice and Constitutional Development on the Judicial Matters Amendment Bill [B63—2000] (National Assembly—section 75), dated 18 October 2000:

The Portfolio Committee on Justice and Constitutional Development, having considered the subject of the Judicial Matters Amendment Bill [B63—2000] (National Assembly—section 75), referred to it and classified by the Joint Tagging Mechanism as a section 75 Bill, reports the Bill with amendments [B63A—2000], and endorses the classification of the Bill as a section 75 Bill.
The Portfolio Committee wishes to report further, as follows:

1. During its deliberations on the Bill, the Committee's attention was drawn to the fact that in a number of cases it has been held that the definition of "law", as defined in section 2 of the Interpretation Act, 1957 (Act No. 33 of 1957), does not encompass the common law and that the common law therefore falls outside the scope thereof whenever another statute uses it without indicating independently an intention to embrace it. The Committee was informed that the object of clause 3 of the Bill, as introduced into Parliament, was to amend the definition of "law", as defined in the said section 2, in order to include the common law. However, due to insufficient time, the Committee was not in a position to consider the effect which such an amendment could have on existing laws which have been drafted on the premise that the definition of "law" in section 2 of the Interpretation Act, 1957, does not include the common law.

The Committee took cognisance of, and confirms, the views expressed by the Ad Hoc Joint Committee on Open Democracy Bill in paragraph 6 of its Report on the Open Democracy Bill [B67—98] (Announcements, Tablings and Committee Reports, p15), namely:
"The Committee has once again become acutely aware of the various shortcomings of the Interpretation Act, 1957 (Act No. 33 of 1957), during its deliberations on the Bill. This Act was drafted during an era when we had a system of unfettered parliamentary sovereignty and regulated matters of interpretation during the height of the Apartheid era. This Act is highly anacronistic and in no way is it in line with the principles of constitutional democracy. The Committee therefore urges the Minister to consider the amendment of the Interpretation Act, 1957, to bring it in line with the principles and ethos of constitutionalism and the new principles and practices of interpretation which Parliament and the courts have used since 1994.".
It has been brought to the Committee's attention that the Minister for Justice and Constitutional Development has already approached the Chairperson of the South African Law Commission regarding the possible inclusion of an investigation relating to the review of the Interpretation Act, 1957, in the Law Commission's programme.

The Committee expresses the view that an investigation into the effects which the amendment envisaged by clause 3 of the Bill could have on other existing laws would require such a comprehensive research that the South African Law Commission is probably best suited to conduct such an investigation. In the light thereof, the Committee urges the Minister for Justice and Constitutional Development to request the Chairperson of the Law Commission to consider the inclusion of an investigation into the amendment envisaged by clause 3 of the Bill, as well as the effect which such an amendment could have on other existing laws, either as part of the investigation relating to the review of the Interpretation Act, 1957, if such an investigation is to be included in the Law Commission's programme and, if not, to include such an investigation as a separate project in the Law Commission's programme.

Although the Committee has no objection in principle to the amendment envisaged by clause 3 of the Bill, it deems it appropriate not to proceed with that amendment at this stage, but to delete it from the Bill and to keep the promotion thereof in abeyance until the Law Commission has conducted the above-mentioned investigation and made recommendations in that regard.

The Committee requests the Department of Justice and Constitutional Development to submit a report on its progress regarding the above-mentioned investigation to the Committee within six months after the adoption of this report.

2. The Committee is aware of the fact that section 53 of the Criminal Law Amendment Act, 1997 (Act No. 105 of 1997), provides that sections 51 and 52 of that Act, which, respectively, provide for the imposition of minimum sentences for certain offences and the committal of an accused for sentence by a High Court, will cease to have effect after the expiry of two years from the commencement of that Act. However, provision is made for that period to be extended by the President, with the concurrence of Parliament, by proclamation in the Gazette for one year at a time. The Committee has been informed that—
(a) the National Assembly, on 16 March 2000, consented to the extension of the operation of sections 51 and 52 for a further period of one year with effect from 1 May 2000 (Announcements, Tablings and Committee Reports, p220); and
(b) the President by Proclamation No. R. 23, published in Gazette No. 21122 of 28 April 2000, extended the period of operation of sections 51 and 52 for a period of one year with effect from 1 May 2000.

The Committee, having inserted new sections 52A and 52B in the Criminal Law Amendment Act, 1997, requests the Minister for Justice and Constitutional Development to timeously make the necessary arrangements to enable the President to publish, on the date of commencement of the Bill, a Proclamation in the Gazette, providing for the extension of the operation of the new sections 52A and 52B to the same date to which the operation of sections 51 and 52 of the above-mentioned Act has been extended.

Appendix 2:
Report of the Portfolio Committee on Justice and Constitutional Development on the Directorate of Special Operations Bill [B 39 - 2000] (National Assembly - sec 75), dated 18 October 2000:

The Portfolio Committee on Justice and Constitutional Development, having considered the subject of the Directorate of Special Operations Bill [B 39 - 2000] (National Assembly - sec 75), referred to it and classified by the Joint Tagging Mechanism as a section 75 Bill, presents the National Prosecuting Authority Amendment Bill [B 39B - 2000] (National Assembly - sec 75).

The Committee wishes to report further, as follows:

1. Clause 18 of the Bill inserts a new section 40A into the National Prosecuting Authority Act, 1998. This new section creates certain offences relating to unlawful access to, tampering with or modification of, computers belonging to the National Prosecuting Authority, including the programmes of, or data held in, such computers. This provision is similar to legislation pertaining to the South African Police Service and the Department of Correctional Services.

2. In view of the increasing reliance on computers and the rapid development of information technology systems, and the fact that the safeguarding of these systems through appropriate legislation is still the subject of comprehensive research in this country, the Committee is of the opinion that similar provisions should, in the meanwhile, be considered by all government departments. The Committee therefore recommends that all Departments should look into this matter and, if appropriate, that the Ministers concerned must submit the necessary draft legislation in this regard to Parliament.

Report to be considered.

Report of the Portfolio Committee on Justice and Constitutional Development on the Judicial Matters Amendment Bill [B 63 - 2000] (National Assembly - sec 75), dated 18 October 2000:

The Portfolio Committee on Justice and Constitutional Development, having considered the subject of the Judicial Matters Amendment Bill [B 63 - 2000] (National Assembly - sec 75), referred to it and classified by the Joint Tagging Mechanism as a section 75 Bill, reports the Bill with amendments [B 63A - 2000], and endorses the classification of the Bill as a section 75 Bill.

The Committee wishes to report further, as follows:

1..... During its deliberations on the Bill, the Committee's attention was drawn to the fact that in a number of cases it has been held that the definition of "law", as defined in section 2 of the Interpretation Act, 1957 (Act No. 33 of 1957), does not encompass the common law and that the common law therefore falls outside the scope thereof whenever another statute uses it without indicating independently an intention to embrace it. The Committee was informed that the object of Clause 3 of the Bill, as introduced in Parliament, was to amend the definition of "law", as defined in the said section 2, in order to include the common law. However, due to insufficient time, the Committee was not in a position to consider the effect which such an amendment could have on existing laws which have been drafted on the premise that the definition of "law" in section 2 of the Interpretation Act, 1957, does not include the common law.

The Committee has taken cognisance of, and confirms, the views expressed by the Ad Hoc Joint Committee on Open Democracy Bill, in paragraph 6 of its Report dated 24 January 2000 (Announcements, Tablings and Committee Reports, 2000, see p 15), namely:

"The Committee has once again become acutely aware of the various shortcomings of the Interpretation Act, 1957 (Act No. 33 of 1957), during its deliberations on the Bill. This Act was drafted during an era when we had a system of unfettered parliamentary sovereignty and regulated matters of interpretation during the height of the Apartheid era. This Act is highly anacronistic and in no way is it in line with the principles of constitutional democracy. The Committee therefore urges the Minister to consider the amendment of the Interpretation Act, 1957, to bring it in line with the principles and ethos of constitutionalism and the new principles and practices of interpretation which Parliament and the courts have used since 1994.".

It has been brought to the Committee's attention that the Minister for Justice and Constitutional Development has already approached the Chairperson of the South African Law Commission regarding the possible inclusion of an investigation relating to the review of the Interpretation Act, 1957, in the Law Commission's programme.

The Committee expresses the view that an investigation into the effects which the amendment envisaged by Clause 3 of the Bill could have on other existing laws would require such a comprehensive research that the South African Law Commission is probably best suited to conduct such an investigation. In the light thereof, the Committee urges the Minister for Justice and Constitutional Development to request the Chairperson of the Law Commission to consider the inclusion of an investigation into the amendment envisaged by Clause 3 of the Bill, as well as the effect which such an amendment could have on other existing laws, either as part of the investigation relating to the review of the Interpretation Act, 1957, if such an investigation is to be included in the Law Commission's programme and, if not, to include such an investigation as a separate project in the Law Commission's programme.

Although the Committee has no objection in principle to the amendment envisaged by Clause 3 of the Bill, it deems it appropriate not to proceed with that amendment at this stage, but to delete it from the Bill and to keep the promotion thereof in abeyance until the Law Commission has conducted the above-mentioned investigation and made recommendations in that regard.

The Committee requests the Department of Justice and Constitutional Development to submit a report on its progress regarding the above-mentioned investigation to the Committee within six months after the adoption of this Report.

2..... The Committee is aware of the fact that section 53 of the Criminal Law Amendment Act, 1997 (Act No. 105 of 1997), provides that sections 51 and 52 of that Act, which, respectively, provide for the imposition of minimum sentences for certain offences and the committal of an accused for sentence by a High Court, will cease to have effect after the expiry of two years from the commencement of that Act. However, provision is made for that period to be extended by the President, with the concurrence of Parliament, by proclamation in the Gazette for one year at a time. The Committee has been informed that -

(a)...... the National Assembly, on 16 March 2000, consented to the extension of the operation of sections 51 and 52 for a further period of one year with effect from 1 May 2000 (Minutes of Proceedings of National Assembly, p 220); and

(b)...... the President by Proclamation No. R. 23, published in Gazette No. 21122 of 28 April 2000, extended the period of operation of sections 51 and 52 for a period of one year with effect from 1 May 2000.

The Committee, having inserted new sections 52A and 52B in the Criminal Law Amendment Act, 1997, requests the Minister for Justice and Constitutional Development to timeously make the necessary arrangements to enable the President to publish, on the date of commencement of the Bill, a Proclamation in the Gazette, providing for the extension of the operation of the new sections 52A and 52B to the same date to which the operation of sections 51 and 52 of the above-mentioned Act has been extended.

Report to be considered.

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