Scorpions legislation: Proposed amendment of National Prosecution Authority Act

Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE; SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE: JOINT MEETING
13 October 2000
SCORPIONS LEGISLATION: PROPOSED AMENDMENT OF THE NATIONAL PROSECUTION AUTHORITY ACT; JUDICIAL MATTERS AMENDMENT BILL

Relevant documents:
Draft D: Proposed Amendments to the National Prosecuting Authority Act, 1998
[this version is not available]
Draft 2- Working Document: Judicial Matters Amendment Bill
Proposed Amendments to the National Prosecuting Authority Act: Draft C

Chairpersons: Mr JH De Lange and Mr JL Mahlangu

SUMMARY
The Committee believes it is on the right track with its decision to include the Scorpions under the National Prosecuting Authority Act. The State Law Advisors had already certified the legislation and nothing drastically different was expected. The Hyundai judgement has concretised the position of the Scorpions as an Investigating Directorate. The Constitution permits the prosecuting authority to institute criminal proceedings and do other necessary functions incidental to this. Whilst the police are given investigating powers in the Constitution, no where does it say that these are limited to them alone. The Truth and Reconciliation Commission, the Heath Unit and customs and emigration officials have such investigating powers. The drafter will fine-tune the provisions so that the Bill can be finalised on19 October 2000.

On the Judicial Matters Amendment Bill, the Committee was satisfied with their proposed amendments as incorporated by the drafter. Issues that need more attention is the defintion of law centre and the provisions under section 52A, an amendment to the Criminal Law Amendment Act of 1997.

MINUTES
Scorpions legislation: Amendment of National Prosecution Authority Act
Clause 30 Preservations of secrecy and admissibility of evidence
Mr De Lange, the drafter, said subclauses (1) and (2) are to be moved to be inserted below clause 40.

The Chairperson asked what the formulation "and relating to the business or affairs of any other person" means.

Mr De Lange said the provision is meant to protect the privacy or secrecy of businesses of persons that the members of the Directorate might come into contact with through conducting their investigations. He said the word "relating" qualifies information such that it entails any information relating to the business of any person. He said his view is that saying "any information" is opening the scope of the provision too wide.

The Chairperson said Mr De Lange needs to circumscribe what the provision means. Mr Landers (ANC) suggested that it would be better if the clause was split into two to make the meaning come out more clearly.

Clause 31 Compensation regarding expenses
Mr De Lange said the provisions of the clause are moved to clause 36.

The Chairperson said it should rather be said "on the recommendation of the National Director" instead of someone lower in the ranks such as the Investigating Director.

Chapter 6
Clause 40 Regulations
The Chairperson reminded members that the clause needs more work. The provisions for regulations relating to the prosecutors and those for the special investigators still need to be separated. Also a provision should be made for retirement.

Clause 40B Disclosure of information
Mr De Lange said this clause is to be deleted.

Clause 41 Offences and penalties
Mr De Lange said what has changed in the clause are the maximum periods of imprisonment in subclauses (1) and (2).

The Chairperson said that in subclause (6) the maximum period of imprisonment should be 15 years instead of 25 years.

Mr De Lange said he has not had a chance to work further than this clause. The Chairperson said Mr De Lange would go and work on the outstanding clauses and finalise the ones discussed today. From 16 October 2000 onwards they would consider the provisions and effect amendments in the Committee, if any, so that by Wednesday, 18 October 2000, they would finalise the Bill. He noted that one outstanding matter is the Committee resolution on computer crimes.

In conclusion, the Chairperson said that he thinks the Committee is "on firm ground" with its decision to include the Scorpions under the National Prosecuting Authority Act as the State Law Advisors had certified the legislation and the advice awaited from them is just to put their opinion on paper. The Hyundai judgement is in favour of investigating powers for the Scorpions. The enabling section in the Constitution says the prosecuting authority has the power to institute criminal proceedings on behalf of the state, and to carry out any necessary functions incidental to instituting criminal proceedings. Neither in section 205(3) or anywhere else in the Constitution does it say that only the police have investigating powers. Conversely, customs and emigration officials, the Heath Special Investigating Unit, the Truth and Reconciliation Commission have investigating powers.

Mr Delport (DP) announced that he had talked to his party caucus and his party supports the Bill.

Judicial Matters Amendment Bill
Clause 8
Mr Labuschagne, the drafter, said subclause (c) was a proposal of the State Law Advisor.

Clause 20
Mr Labuschagne said section 79A is where they at last have decided to put the amendment of the Attorneys Act, 1979.

He said he is still awaiting response from Mr Botha and Mr Gauntlet on the amendment proposed by the Legal Resources Centre.

Regarding the definition of "law clinic", Mr Labuschagne said he had talked to the heads of the law clinics at the University of Cape Town and UNISA. The UNISA head said they do not have daily students but Candidate Attorneys performing services for clients and these are paid by UNISA. The UCT head said although they use students every letter or process is supervised by a qualified attorney and only attorneys appear in Court.

The Chairperson said he is reluctant to put other structures in the Bill as the amendment was at the request of the Legal Resources Centre alone.

Mr Labuschagne said the UCT Law Clinic already recovers costs because the rules of the Cape Law Society allow it to do so.

Mr Swart (ACDP) said the main issue is that the costs are deemed to have been ceded to the law clinic, and that is the issue that needs finalisation in his view.

Mr Labuschagne said subsection 79A(4) is deleted.

Clause 33
Mr Labuschagne said in subclause (b) "in terms of section 52(1)" is removed and replaced by "under section 52(1)". He said this is because when a provision says there must be a certificate it has to be done "in terms of" but where discretion is granted it is done "under" the provision. The Chairperson said when it is peremptory it is done "in terms of" and if only permissive it is done "under".

Clause 34
Mr Labuschagne said a new heading in subclause (a) has been inserted to read:
"Committal of accused convicted of offences referred to in Schedule 2 for sentences by High Court after plea of guilty or trial in regional court".

Mr Delport said the drafter last time said it was not possible to amend heading to sections.

The Chairperson said the heading cannot be amended if the content of the section does not change but if they also change the heading can be amended.

Mr Labuschagne proposed that the words "as contemplated in section 51(1) or (2)" in subclause (d) be deleted as reference is already made to these sections in the initial subclauses of the clause.

Clause 35 Insertion of Section 52A in Act 105 of 1997
The Chairperson said all the sentencing gets sent to the High Court to be dealt with by it. He instructed Mr Labuschagne to see if he could link the clause closer to clarify that where an accused is convicted of both offences referred to in Schedule 2 of the Criminal Law Amendment Act and other offences, committal for sentence by the High Court would take place in terms of this section.

Ms Chohan-Kota said the wording of the section was not very clear, for instance, it says "the court shall also stop the proceedings in respect of the other offences". She said this sounds as if the proceedings would be left unfinished in respect of the other offences, once there is a conviction in respect of offences referred in Schedule 2.

The Chairperson said that in order to make it clear, Mr Labuschagne could split the provision in subsection (1) into two.

Mr Labuschagne said he had initially formulated the clause like that but the State Law Advisor said it was drafted badly.

The Chairperson said Mr Labuschagne should find a way of making it clear that the regional court would simultaneously commit an accused for sentence by the High Court in terms of section 52(1) and in respect of other offences in terms of clause 52A. Mr Labuschagne said he would try to find a way to solve this but cautioned against too much reference to section 52.

The Chairperson said the wording needs to be looked at a bit more in the clause. He suggested that the principle be spelt out up-front so that clause 52A is known to kick in where there was a schedule 2 offence plus other offences not falling within the schedule 2 category. Then a new subclause should spell out the detail.

Clause 36
The clause provides for the extension of the period of application of sections 51, 52 and 52A to two years after the commencement of the Act. Mr Labuschagne said a proclamation would have to be published in respect of section 52A. The Chairperson said the Committee would pass a resolution to say the Department should issue a proclamation amending the one that provided for sections 51 and 52 to say it includes section 52A when the Act comes into effect.

Clause 38
The Chairperson said the date on which the Act cones into operation in subsection 1 should be kept because of the proclamation from the Department.

The Chairperson noted that the outstanding issues in the Bill were the issue of the law centre and the fine-tuning of section 52A. The meeting was adjourned.