Scorpions Legislation: Proposed Amendments to the National Prosecution Authority Act; Judicial Matters Amendment Bill; Rome Stat

This premium content has been made freely available

Justice and Correctional Services

16 October 2000
Share this page:

Meeting Summary

A summary of this committee meeting is not yet available.

Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
17 October 2000
JUDICIAL MATTERS AMENDMENT BILL; SCORPIONS LEGISLATION: PROPOSED AMENDMENT OF NATIONAL PROSECUTING AUTHORITY ACT; ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT

Chairperson: Mr JH De Lange

Drafters: Adv Labuschagne and Adv De Lange

Relevant Documents:
Drafting of new clauses for Judicial Matters Amendment Bill amending Sections 51, 52 and 53 of Criminal Law Amendment Act (see Appendix 1)
Draft F: Proposed amendments to the National Prosecuting Authority Act
Rome Statute of the International Criminal Court

SUMMARY
The Committee reviewed the proposed amendments to the Judicial Matters Amendment Bill and National Prosecuting Authority Act and continued to make small and precise modifications to each. The amendments to the National Prosecuting Authority Act will be concretised into a final Bill. The Committee will be voting on both these bills on 18 October 2000.

The Committee briefly considered the Rome Statute and decided it would deal with it after the October recess when it is hoped the enabling legislation would have been finalised. Other issues scheduled to be dealt with after the parliamentary recess are: the Bill to deal with removal and reinstatement of attorneys struck from the roll and a report-back from the Department.

MINUTES
Judicial Matters Amendment Bill
The committee looked at the drafting of the new clauses for the amendment of Sections 51, 52 and 53 of Criminal Law Amendment Act (Act No 105 of 1997) dealing with minimum sentences

Section 52A(1) Committal of accused convicted of offence not referred to in Schedule 2 for sentence by High Court after plea of guilty or trial in regional court
Adv Labuschagne said he preferred Option 2. The Chairperson, Mr Swart (ACDP) and Ms Chohan-Kota (ANC) agreed, saying Option 1 was vague.

The Chairperson suggested the headings of Sections 52A and 52B (Imposition of sentence by High Court for different offences) were imprecise and needed to be improved. For example, the heading of section 52A includes "after plea of guilty or trial". The Chairperson pointed out that a trial may still follow a guilty plea. He suggested it read, "after conviction or trial". Adv Labuschagne said he would work on it, as well as the heading to section 52B.

The Committee found the content of the sections themselves to be good and not in need of further change.

Scorpions Legislation: Proposed Amendments to National Prosecution Authority Act
The Committee checked and fine-tuned the grammar and wording of the Bill to make sure it said what they intended.

Preamble
The Chairperson asked Adv De Lange to fine tune the Preamble a little more, particularly the final paragraph beginning "And, in order to ensure…"

Clause 1 Definitions
The Committee was satisfied with this version of the definitions.

Clause 7 Investigating Directorates
In the definition of "organised fashion" at clause 7(1)(b), the Committee decided to change the word "means" to "includes" in order to broaden the scope of the provision.

In addition, the word "interrelated" was changed to "related".

Clause 19B Security screening of special investigators
The word "may" in clause 19B(5) will be changed to "must". This will remove any discretion.

Clause 40A Unauthorised access to or modification of computer material
The Chairperson said there is no time to look at negligence issue under the clause so the Committee would just skip it.

Clause 41 Offences and penalties
The Chairperson noted that the maximum period of imprisonment in subclauses (1) and (2) have been correctly changed to 10 and 15 years. The maximum period of imprisonment in subclause (3) should be five years not two years.

In subclause 6(i) the drafter still needs to add after "in terms of this Act" the words "and any other law". The maximum period of imprisonment has been rightly changed to 15 years in this subclause.

Clause 43A Transitional arrangement relating to Investigating Directorate
The only change needed is in subclause (3) where the words "in the Directorate of Special Operations" have to be added after "under this Act".

Conclusion
The Chairperson said the one thing they are a bit uncertain about as a Committee is the Preamble. Mr De Lange asked if he should include the Preamble in the final Bill. The Chairperson said he should draft the Preamble in a separate document so that if the Committee passes it, it would just be a question of including it in the Bill. He said they are still awaiting another draft of the Preamble to be finalised. Mr De Lange would redraft the index and effect small changes to Chapters 1, 2, 3 and 3A. The Committee would be voting this Bill and the Judicial Matters Amendment Bill on 18 October 2000.

Rome Statute of the International Criminal Court
The Chairperson said the purpose of the Treaty is to create an independent permanent International Criminal Court (ICC) with jurisdiction over serious crimes. He said the statue creates a new set of crimes, namely, the crime of genocide, crimes against humanity, war crimes and the crime of aggression.

He asked members if they had any problems with the Rome Statute at the briefing meeting with Professor Rwelamira on 5 October 2000. Members said they had raised issues such as the jurisdiction of the Court, and the issues of admissibility mentioned under Article 17 of the Treaty. A representative of the Department explained that as opposed to the International Court of Justice which has jurisdiction over crimes committed by states, the International Criminal Court would have jurisdiction over crimes committed by individuals, and only if people are not being put on trial in the state concerned.

Ms Chohan-Kota wanted to know what happens where there is a collapse of the judicial system and the state does not have the capacity to investigate. The Department said where a state is unable to investigate or prosecute, the ICC can initiate an investigation or prosecution. The Chairperson said the issue of jurisdiction is still not very clear. He was also concerned that the decision to determine issues such as inadmissibility or unwillingness is in the hands of the prosecutor of the ICC.

The Department said the ICC would only have jurisdiction with respect to crimes committed after the entry into force of the Statute. This would be after 60 instruments of ratification have been lodged with the UN General-Secretary. Thus the jurisdiction would not be retrospective.

The Chairperson said the State Law Advisers and International Law Advisors have supported the ratification of the Rome Statute and found it not to be in conflict with South Africa's domestic law. He said there are no complaints from the State Law Advisors on the financial implications of ratifying the Statute for South Africa.

Mr Swart (ACDP) felt that the crime of aggression has not yet been clearly defined. He asked who would decide on the definition.

The Department said in terms of the Final Act adopted together with the Statute it was decided that the outstanding issues would be dealt with by the Preparatory Commission.

The Chairperson said the Committee would not be able to decide on the Rome Treaty since the State Law Advisers were still busy with the enabling legislation incorporating the Statute as part of South Africa's domestic law. He said the Committee would deal with the Treaty after the October recess. Also to be dealt with when the Committee comes back from the constituency recess would be the report back from the Department of Justice on the Department's finances and the Bill dealing with the reinstatement of people that were removed from the attorneys roll. The meeting was adjourned.

Appendix 1:
Judicial Matters Amendment Bill

Amendments to SECTIONS 51, 52 AND 53 OF THE CRIMINAL LAW AMENDMENT ACT, 1997 (ACT NO. 105 OF 1997): MINIMUM SENTENCES

Minimum sentences for certain serious offences
51.
(1) Notwithstanding any other law but subject to subsections (3) and (6), a High Court shall—
(a) if it has convicted a person of an offence referred to in Part I of Schedule 2; or
(b)
if the matter has been referred to it under section 52(1) for sentence after the person concerned has been convicted of an offence referred to in Part I of Schedule 2,
sentence the person to imprisonment for life.
(2) Notwithstanding any other law but subject to subsections (3) and (6), a regional court or a High Court, including a High Court to which a matter has been referred under section 52(1) for sentence, shall in respect of a person who has been convicted of an offence referred to in—
(a) [if it has convicted a person of an offence referred to in] Part II of Schedule 2, sentence the person, in the case of—
(i) a first offender, to imprisonment for a period not less than 15 years;
(ii) a second offender of any such offence, to imprisonment for a period not less than 20 years; and
(iii) a third or subsequent offender of any such offence, to imprisonment for a period not less than 25 years;
(b) [if it has convicted a person of an offence referred to in] Part III of Schedule 2, sentence the person, in the case of-
(i) a first offender, to imprisonment for a period not less than 10 years;
(ii) a second offender of any such offence, to imprisonment for a period not less than 15 years; and
(iii) a third or subsequent offender of any such offence, to imprisonment for a period not less than 20 years; and
(c) [if it has convicted a person of an offence referred to in] Part IV of Schedule 2, sentence the person, in the case of—
(i) a first offender, to imprisonment for a period not less than 5 years;
(ii) a second offender of any such offence, to imprisonment for a period not less than 7 years; and
(iii) a third or subsequent offender of any such offence, to imprisonment for a period not less than 10 years:
Provided that the maximum sentence that a regional court may impose in terms of this subsection shall not be more than five years longer than the minimum sentence that it may impose in terms of this subsection.
(3) (a) If any court referred to in subsection (1) or (2) is satisfied that substantial and compelling circumstances exist which justify the imposition of a lesser sentence than the sentence prescribed in those subsections, it shall enter those circumstances on the record of the proceedings and may thereupon impose such lesser sentence.
(b) If any court referred to in subsection (1) or (2) decides to impose a sentence prescribed in those subsections upon a child who was 16 years of age or older, but under the age of 18 years, at the time of the commission of the act which constituted the offence in question, it shall enter the reasons for its decision on the record of the proceedings.
(4) Any sentence contemplated in this section shall be calculated from the date of sentence.
(5) The operation of a sentence imposed in terms of this section shall not be suspended as contemplated in section 297(4) of the Criminal Procedure Act, 1977 (Act No. 51 of 1977).
(6) The provisions of this section shall not be applicable in respect of a child who was under the age of 16 years at the time of the commission of the act which constituted the offence in question.
(7) If in the application of this section the age of a child is placed in issue, the onus shall be on the State to prove the age of the child beyond reasonable doubt.
(8) For the purposes of this section and Schedule 2, 'law enforcement officer' includes-
(a) a member of the National Intelligence Agency or the South African Secret Service established under the Intelligence Services Act, 1994 (Act 38 of 1994); and
(b) a correctional official of the Department of Correctional Services or a person authorised under the Correctional Services Act, [1959 (Act No. 8 of 1959)] 1998 (Act No. 111 of 1998).

Committal of accused convicted of offence referred to in Schedule 2 for sentence by High Court after plea of guilty or trial in regional court
52.
(1) If a regional court, [after it has convicted an accused of an offence referred to in Schedule 2] following on—
(a) a plea of guilty; or
(b) a plea of not guilty,
has convicted an accused of an offence referred to in—
(i)
Part I of Schedule 2; or
(ii)
Part II, III or IV of Schedule 2 and the court [but before sentence,] is of the opinion that the offence [in respect of which the accused has been convicted] concerned merits punishment in excess of the jurisdiction of a regional court in terms of section 51(2),
the court shall stop the proceedings and commit the accused for sentence as contemplated in section 51(1) or (2), as the case may be, by a High Court having jurisdiction.
(2) (a) Where an accused is committed under subsection (1)(a) for sentence by a High Court, the record of the proceedings in the regional court shall upon proof thereof in the High Court be received by the High Court and form part of the record of that Court, and the plea of guilty and any admission by the accused shall stand unless the accused satisfies the Court that such plea or such admission was incorrectly recorded.
(b) Unless the High Court in question-
(i) is satisfied that a plea of guilty or an admission by the accused which is material to his or her guilt was incorrectly recorded; or
(ii) is not satisfied that the accused is guilty of the offence of which he or she has been convicted and in respect of which he or she has been committed for sentence,
the Court shall make a formal finding of guilty and sentence the accused as contemplated in section 51(1) or (2), as the case may be.
(c) If the Court is satisfied that a plea of guilty or any admission by the accused which is material to his or her guilt was incorrectly recorded, or if the Court is not satisfied that the accused is guilty of the offence of which he or she has been convicted and in respect of which he or she has been committed for sentence or that he or she has no valid defence to the charge, the Court shall enter a plea of not guilty and proceed with the trial as a summary trial in that Court: Provided that any admission by the accused the recording of which is not disputed by the accused, shall stand as proof of the fact thus admitted.
(d) The provisions of section 112(3) of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), shall apply with reference to the proceedings under this subsection.
(3) (a) Where an accused is committed under subsection (1)(b) for sentence by a High Court, the record of the proceedings in the regional court shall upon proof thereof in the High Court be received by the High Court and form part of the record of that Court.
(b) The High Court shall, after considering the record of the proceedings in the regional court, sentence the accused as contemplated in section 51(1) or (2), as the case may be, and the judgment of the regional court shall stand for this purpose and be sufficient for the High Court to pass such sentence [as contemplated in section 51]: Provided that if the judge is of the opinion that the proceedings are not in accordance with justice or that doubt exists whether the proceedings are in accordance with justice, he or she shall, without sentencing the accused, obtain from the regional magistrate who presided at the trial a statement setting forth his or her reasons for convicting the accused.
(c) If a judge acts under the proviso to paragraph (b), he or she shall inform the accused accordingly and postpone the case for judgment, and, if the accused is in custody, the judge may make such order with regard to the detention or release of the accused as he or she may deem fit.
(d) The Court in question may at any sitting thereof hear any evidence and for that purpose summon any person to appear to give evidence or to produce any document or other article.
(e) Such Court, whether or not it has heard evidence and after it has obtained and considered a statement referred to in paragraph (b), may-
(i) confirm the conviction and thereupon impose a sentence as contemplated in section 51 (1) or (2), as the case may be;
(ii) alter the conviction to a conviction of another offence referred to in Schedule 2 and thereupon impose a sentence as contemplated in section 51 (1) or (2), as the case may be;
(iii) alter the conviction to a conviction of an offence other than an offence referred to in Schedule 2 and thereupon impose the sentence the Court may deem fit;
(iv) set aside the conviction;
(v) remit the case to the regional court with instruction to deal with any matter in such manner as the High Court may deem fit; or
(vi) make any such order in regard to any matter or thing connected with such person or the proceedings in regard to such person as the High Court deems likely to promote the ends of justice.

Committal of accused convicted of offence not referred to in Schedule 2 for sentence by High Court after plea of guilty or trial in regional court
52A.
(1) If a regional court, following on—
(a)
a plea of guilty; or
(b)
a plea of not guilty,
has convicted an accused of an offence—
(i)
referred to in Schedule 2; and
(ii)
not referred to in that Schedule,
and the court commits the accused under section 52(1) for sentence by a High Court, the court shall also stop the proceedings in respect of the offence referred to in paragraph (ii) and simultaneously commit the accused for sentence in respect of that offence by the High Court in question in accordance with subsection (2) or (3).


OR

(1)
If a regional court, following on—
(a)
a plea of guilty; or
(b)
a plea of not guilty,
has convicted an accused of an offence referred to in Schedule 2 as well as an offence not referred to in that Schedule, the court shall—
(i)
where it stops the proceedings as contemplated in section 52(1) for purposes of committing the accused for sentence by a High Court, simultaneously stop the proceedings in respect of the offence not referred to in that Schedule; and
(ii)
when it commits the accused for sentence under section 52(1) by a High Court, simultaneously commit the accused for sentence by the High Court in question in respect of the offence not referred to in that Schedule in accordance with subsection (2) or (3).


(2)
(a) Where an accused is committed under subsection (1)(a) for sentence by a High Court, the record of the proceedings in the regional court shall upon proof thereof in the High Court be received by the High Court and form part of the record of that Court, and the plea of guilty and any admission by the accused shall stand unless the accused satisfies the Court that such plea or such admission was incorrectly recorded.
(b)
Unless the High Court in question—
(i)
is satisfied that a plea of guilty or an admission by the accused which is material to his or her guilt was incorrectly recorded; or
(ii)
is not satisfied that the accused is guilty of the offence of which he or she has been convicted and in respect of which he or she has been committed for sentence,
the Court shall make a formal finding of guilty and
[sentence the accused as contemplated in section 51(1) or (2), as the case may be] thereupon impose the sentence that the Court may deem fit.
(c)
If the Court is satisfied that a plea of guilty or any admission by the accused which is material to his or her guilt was incorrectly recorded, or if the Court is not satisfied that the accused is guilty of the offence of which he or she has been convicted and in respect of which he or she has been committed for sentence or that he or she has no valid defence to the charge, the Court shall enter a plea of not guilty and proceed with the trial as a summary trial in that Court: Provided that any admission by the accused the recording of which is not disputed by the accused, shall stand as proof of the fact thus admitted.
(d)
The provisions of section 112(3) of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), shall apply with reference to the proceedings under this subsection.
(3)
(a) Where an accused is committed under subsection (1)(b) for sentence by a High Court, the record of the proceedings in the regional court shall upon proof thereof in the High Court be received by the High Court and form part of the record of that Court.
(b)
The High Court shall, after considering the record of the proceedings in the regional court, [sentence the accused as contemplated in section 51(1) or (2), as the case may be] impose the sentence that the Court may deem fit, and the judgment of the regional court shall stand for this purpose and be sufficient for the High Court to pass such sentence [as contemplated in section 51]: Provided that if the judge is of the opinion that the proceedings are not in accordance with justice or that doubt exists whether the proceedings are in accordance with justice, he or she shall, without sentencing the accused, obtain from the regional magistrate who presided at the trial a statement setting forth his or her reasons for convicting the accused.
(c)
If a judge acts under the proviso to paragraph (b), he or she shall inform the accused accordingly and postpone the case for judgment, and, if the accused is in custody, the judge may make such order with regard to the detention or release of the accused as he or she may deem fit.
(d)
The Court in question may at any sitting thereof hear any evidence and for that purpose summon any person to appear to give evidence or to produce any document or other article.
(e)
Such Court, whether or not it has heard evidence and after it has obtained and considered a statement referred to in paragraph (b), may—
(i)
[confirm the conviction and thereupon impose a sentence as contemplated in section 51 (1) or (2), as the case may be;
(ii) alter the conviction to a conviction of another offence referred to in Schedule 2 and thereupon impose a sentence as contemplated in section 51 (1) or (2), as the case may be;
(iii) alter the conviction to a conviction of an offence other than an offence referred to in Schedule 2 and thereupon impose the sentence the Court may deem fit;]
confirm, alter or quash the conviction, and in the event of the conviction being quashed where the accused was convicted on one of two or more alternative charges, convict the accused on the other alternative charge or on one or other of the alternative charges and thereupon impose the sentence that the Court may deem fit;
(ii)
set aside the conviction;
(iii)
remit the case to the regional court with instruction to deal with any matter in such manner as the High Court may deem fit; or
(iv)
make any such order in regard to any matter or thing connected with such person or the proceedings in regard to such person as the High Court deems likely to promote the ends of justice.

Imposition of sentence by High Court for different offences
52B.
If a regional court has committed an accused under sections 52(1) and 52A(1) for sentence by a High Court, the High Court in question shall, when sentencing the accused as contemplated in section 51(1) or (2) in respect of the matter referred to it under section 52(1), simultaneously sentence the accused as contemplated in section 52A(2) or (3) in respect of the matter referred to it under section 52A(1).

Saving
53.
(1) Sections 51, [and] 52, 52A and 52B shall, subject to subsections (2) and (3), cease to have effect after the expiry of two years from the commencement of this Act .
(2) The period referred to in subsection (1) may be extended by the President, with the concurrence of Parliament, by proclamation in the Gazette for [one year] two years at a time.
(3) Any appeal against-
(a) a conviction of an offence—
(i) referred to in Schedule 2 of this Act and a resultant sentence imposed in terms of section 51; or
(ii) not referred to in the said Schedule 2 and a resultant sentence imposed in terms of section 52A; or
(b) a sentence imposed in terms of section 51 or 52A, as the case may be,
shall be continued and concluded as if [section] sections 51 and 52A had at all relevant times been in operation.
(4) Sections 51 and 52 shall not derogate from the provisions of section 89(2) of the Magistrates' Courts Act, 1944 (Act No. 32 of 1944).

Audio

No related

Documents

No related documents

Present

  • We don't have attendance info for this committee meeting
Share this page: