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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE; SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE: JOINT MEETING
11 October 2000
SCORPIONS LEGISLATION: PROPOSED AMENDMENT OF THE NATIONAL PROSECUTION AUTHORITY ACT; INSTITUTION OF LEGAL PROCEEDINGS AGAINST ORGANS OF STATE BILL
Draft - Institution of Legal Proceedings Against Organs of State Bill [B65B-20]
Proposed Amendments to the National Prosecuting Authority Act: Draft C
Chairpersons: Mr JH De Lange and Mr JL Mahlangu
The Chairperson felt the Committee was generally happy with the approach of including the Scorpions under the National Prosecuting Authority Act and with the underlying concept and structure. What is left is to get the wording right and for the drafters to finetune the provisions. The Committee will review those in their next meeting. A resolution will be adopted to draw other departments' attention to the provisions on computer crimes and say that they should consider including such provisions in their future legislation.
On the Institution of Legal Proceedings against Organs of State Bill, the Chairperson said subsequent to the Committee's passing of the Bill some shortcomings had been noticed. Whereas the Bill sought to harmonise the various prescription periods in different statutes; the definition of "debt" excluded contractual claims. It was intended that "debt" should only apply to the giving of a notice prior to instituting legal action against an organ of state in delictual claims. Reference to "debt" is removed and replaced by "cause of action" to make it certain that the prescription period provided in the Bill applies to all claims and that the only difference is that notices have to be given on delictual claims. To assist in the interpretation of the provisions of the Bill a Preamble has been added to say what the intention of the legislature was in enacting the provisions.
Scorpions: Proposed Amendment Of The National Prosecution Authority Act
Clause 30 Preservation of secrecy
The Chairperson said the Committee cannot change the heading but Mr De Lange would consult Juta Publishers about the amendment proposed by Ms Jana.
The Chairperson asked if it is necessary to include subclause (2)(h).
Mr De Lange said (h) is the "catch all" provision in case some powers are needed by special investigators which are not covered by the specified scenarios.
The Chairperson said subclause (2)(b) should say that the special investigators have such other powers as contained in another Act and made applicable to them in a proclamation by the Minister so that new powers are not created but those already in existence are extended. The Chairperson said they would like to limit the powers of the special investigators to the types of things that are needed to do an investigation. He asked Mr De Lange to reword the subclause to bring this out more clearly.
Ms Chohan-Kota said the reference in subclause (3) to subclause 2(c) should in fact refer to subclause (2)(b).
Mr Labuschagne explained that the whole subclause (3) was not supposed to be part of the document before the Committee and that it was to be deleted and replaced by a reworded subclause in another document they are busy drafting.
The Chairperson said the new clause would say the notice should be submitted to (though not approved by) Parliament before publication.
Clause 31 Compensation regarding expenses
The Chairperson said the provisions of the clause have to be moved to clause 36.
Chapter 6 General provisions
Clause 36 Expenditure of prosecuting authority
The Chairperson said the only thing new in the section is the provision for the Chief Executive Officer as the accounting officer of the Directorate.
Clause 38 engagement of persons to perform services in specific cases
The Chairperson said subclause (3) was transferred from the Judicial Matters Amendment Bill.
Clause 40 Regulations
Ms Camerer (NNP) requested that regulations be submitted to Parliament before publication. It was proposed that in fact everywhere in the Act where it states a proclamation or regulations have to be made, that these should be submitted to Parliament before publication.
The Chairperson agreed saying this is especially pertinent in the regulations mentioned under the clause as the special investigators are excluded from the Public Service Act and the regulations would provide for conditions of service.
The Chairperson proposed that the clause should say the Minister has to make the regulations in consultation with the National Director of Public Prosecutions.
The Chairperson said subclause (1)(t) does not seem to be necessary as it duplicates what is contained in (1)(a).
Ms Chohan-Kota said the whole clause needs some "tidying up" to separate provisions for the Prosecuting Authority from those for the Scorpions. The Chairperson agreed the clause should be split into two with one part dealing with provisions for the Prosecuting Authority and the other those for the Scorpions.
A member noted that in (1)(c) retirement is not provided for. The drafters were asked to look into the issue.
Clause 40A unauthorised access to or modification of computer material
The Chairperson said all departments should in the future be able to have a clause like this one in their legislation. He proposed that the Committee should adopt a resolution to draw the Department's attention to this and have it make other departments aware of the clause and consider its inclusion in their legislation.
The Chairperson said he was not happy that subclause (2) seems to exclude negligence.
Mr Mahlangu wondered if a scenario where information sent through computers is intercepted has been considered under the clause, especially considering that communication technology is changing so fast with cellphone conversations now capable of being intercepted.
The Chairperson said this can be looked at but since it is only a future foreseeable event the Committee cannot legislate on it, it can only do so when it arises. He said the main thing to be looked at in this clause is the issue of negligence.
The Chairperson said that in subclause (2)(a) a formulation can be added to say "gains, allows, or causes an unauthorised person to gain unauthorised accessâ€¦"
Ms Jana agreed saying negligence could be provided for in the subclause (2). The Chairperson said that is why he would like to afford Mr De Lange time to study the clause to see where the proposals fit in. He added that Mr De Lange should look at what possibilities are of making clause 40A applicable more generally to the whole Prosecuting Authority.
The Chairperson requested Mr De Lange to look at subclause (3) with a view to making it clearer.
Clause 41 Offences and penalties
The Chairperson was not happy that Sections 41(1) and (2) of the National Prosecuting Authority Act carries maximum sentences of 2 and 5 years respectively. The Committee agreed that in subsection (1) the maximum period of imprisonment would be 10 years and in (2) it would be 15 years.
Mr De Lange mentioned that it would look strange that where a person commits contempt of court by for instance refusing to be sworn in, the maximum sentence the court can impose is two years, but with the Prosecuting Authority it is 10 years.
The Chairperson said the Committee would happily review those provisions if they come before it.
He requested that Mr De Lange should consider adding the words "is guilty of an offence" in subclause (3) to make certain that the punishable act is an offence.
Chapter 7 Transitional arrangements
Mr Jeffery said in subclause (3) instead of saying "shall remain in office and continue their functions under this Act." It should rather say "shall continue their functions in the Directorate of Special Operations in terms of this Act.
The Chairperson said that in subclause (4) "had at all times been in force" seems to bring in retrospective effect in the application of the Act.
Mr De Lange said nothing in the amended Act changes the way the pending matters were dealt with in terms of the principal Act. He added that he had talked to the office of the National Prosecuting Authority and they have no problem with the transitional arrangements.
New Clause Relating To Interception and Monitoring Prohibition Act (127:1992)
The Chairperson said the power of intercepting and monitoring is limited to the head of the Directorate and a person authorised by him in writing. This is extended only to the Scorpions not to other Directorates and allows the Scorpions to apply to a judge, and the application can only be made at a high level in the Directorate.
Mr De Lange said even a member of the Directorate may not, in terms of clause 24(a)(1), execute a direction that has been issued unless authorised by the officer who made the application.
The Chairperson said the Committee is happy with the approach of including the Scorpions under the National Prosecuting Authority Act and with its concept and the structure. The Committee only has to get the wording right. He said Mr De Lange is to finetune the provisions and in the next meeting they would look at those. He added that he would discuss the committee resolution on computer crimes with Mr Labuschagne.
Institution of Legal Proceedings against Organs of State Bill
The Chairperson said in his history of working with the Committee, this has been by far the most technical and complicated Bill. The 1969 Prescription Act provided for prescription but a whole host of legislation such as the Police Act, the Defence Act, etc. provided for different prescription periods. Chapter 3 of the Prescription Act, which provided for extinctive prescription said in all instances the prescription period is three years, the exception being disability where prescription would be one year after the disability. Another concept that was introduced is what was called limitation. This required that before one sued the State, one gives a notice. For example in the case of the Police Act, within a month of existence of the cause of action, and within six months of that, a summons should be issued. If the litigant failed on both counts, their claim failed which is the same as extinctive prescription.
What the Bill tries to do is harmonise the Acts and create uniformity in their application when one is suing organs of state. However, in the Bill that was passed by the Committee "debt" was defined to exclude contractual claims while prescription provides for both delict and contract. Thus "debt" should only apply to notices.
There is no problem with clause 3 onwards except clause 5 where there are technical changes. New amendments have been drafted to provide for prescription of matters and instead of "debt" to say "cause of action".
The Chairperson said a preamble has been included to be used in the interpretation of the Act to explain more clearly what the Committee's intention was. He proposed that in the fourth paragraph of the preamble to replace the words "debts arising from delictual, contractual or any other liability" with "causes of action". The meeting was adjourned.