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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE; SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE: JOINT MEETING
10 October 2000
JUDICIAL MATTERS AMENDMENT BILL; SCORPIONS LEGISLATION: PROPOSED AMENDMENTS TO THE NATIONAL PROSECUTING AUTHORITY ACT
Chairpersons: Mr JH De Lange and and Mr JL Mahlangu
Drafters: Adv J De Lange and Mr J Labuschagne of the Department of Justice
Documents handed out:
Draft 1- Working Document: Judicial Matters Amendment Bill
Draft 2- Working Document: Judicial Matters Amendment Bill
Proposed Amendments to the National Prosecuting Authority Act: Draft C
The Committees went through both the Judicial Matters Amendment Bill and the proposed amendments to the National Prosecuting Authority Act (which allow for the establishment of the Directorate of Special Operations ie the Scorpions). The Chairperson briefed members of the NCOP on the proposed amendments and what they have agreed on.
In the afternoon, the Committee went through the Proposed Amendments to the National Prosecuting Authority Act revising and clarifying changes made in previous meetings. Discussion focused on Chapter 5, the most important part of the legislation since it deals with the powers of the Directorate of Special Operations, but no substantial changes were made to the current document.
The Chairperson announced that the Minister's intended 17 October briefing on the colloquium taking place on 19/20 October had been cancelled as he had another meeting scheduled for that day; it is hoped another arrangement would be made.
He mentioned that although the Committee had already passed the Institution of Legal Proceedings against Organs of State Bill [B65B - 99], some problems had been picked up with it. The drafter, Mr Labuschagne, had proposed certain solutions and was in the process of formulating those.
He welcomed the NCOP to the joint sitting to consider the Scorpions Bill and the Judicial Matters Amendment Bill. There are six treaties to be dealt with by the Committee. The Rome Treaty, which establishes the International Criminal Court, is very important and the Committee needs to pass it before the end of this year. He said he thinks there is no problem with the treaty as no party in the country seemed to oppose it. On the issue of suspension of magistrates the Committee is awaiting legal opinion as the matter was supposed to have been referred to Parliament within 14 days but it reached Parliament two days after the expiry of the 14 day period.
Judicial Matters Amendment Bill
The Chairperson said there is general agreement that the Bill is not very problematic. The one issue that needs to be reconsidered is the original clause 3 which says law means "any rule of law" whereas the Interpretation Act provided that this refers only to statutory law. At this stage all legislation is drafted on the basis that common law is excluded. He said it has been decided to refer the matter to the Law Commission.
A few other matters were in the Bill: amendments to the minimum sentences, the proposal of the Legal Resources Centre regarding law clinics being allowed to claim cost orders. The Chairperson mentioned that this issue had been discussed at a Legal Forum held in Pretoria and he was informed that there was unanimity in the legal profession that law clinics should be able to have cost orders ceded to them. Mr Labuschagne said he was waiting for a confirmation from Mr Botha of the Law Society and Mr Gauntlet of the Bar Council.
The Chairperson then proposed that the Committee go through the amendments with the NCOP to introduce them to those issues agreed on.
The Chairperson said the clause brings the oath that magistrates are supposed to take before assuming office in line with the Constitution. Mr Labuschagne added that previously it was provided that only magistrates employed in a permanent capacity have to take the oath. Now the clause says even those employed in an acting capacity have to take the oath.
The Chairperson said this clause flows from the Manamela case. The case dealt with presumptions regarding stolen property in section 37(1) of the General Law Amendment Act, 1955 where reverse onus provisions applied. The Court in this case read an interpretation that is less onerous on the accused into the provision. He said the clause seeks to bring the provisions of the section in line with the Court's decision.
Old Clause 3
The Chairperson said the clause is removed from the Bill to will be put in a Committee resolution. This clause sought to amend section 2 of the Interpretation Act, 1957, and substitute a definition of "law" to include both the common law and statute law. The resolution would state that the Law Commission should properly investigate amending the definition of law in the Interpretation Act.
A New Clause 3
The Chairperson said the clause repeals section 13 of the Stock Theft Act, 1959.
The Chairperson said the clause grants increased jurisdiction in respect of sentence to magistrate's courts under the Stock Theft Act, 1959.
Clauses 5, 7, 10, 11, 12, 14
The Chairperson said the principal clause here is clause 10 which repeals section 148 of the Criminal Procedure Act which provided for a special superior court to hear specific cases. He said it has been the Department's view that such courts are not needed in the new democracy. The repeal of the section necessitates consequential amendments in clauses 5, 7, 11, 12 and 14 since the court is referred to in other legislation.
The clause amends a reference to "illegitimate children" in the Administration of Estates Act to be substituted by "a minor born out of wedlock".
The Chairperson said the clause proposes that bail in respect of schedule 6 offences be heard by a magistrate's court unless a prosecutor issues a certificate in writing that it shall be heard in the regional court.
The Chairperson said this clause emanates from the Dladla judgement. The Court here decided that a person's constitutional right to release on bail is dependent upon a finding that the interests of justice permit it. The clause seeks to bring the wording in bail laws in line with the final Constitution.
Mr Labuschagne said subclause (a) is deleted and replaced by a new clause.
The Chairperson said the clause basically provides for police bail. The Inspectorate of Prisons decided that there are a lot of people who committed lesser offences sitting in prisons not being granted bail. The clause allows a police officer over a certain rank to grant bail to accused persons in such cases and where possession of dagga does not exceed 115 grams.
Mr Jeffrey asked if it should not be left to the Minister to amend the amount of bail in regulations whenever a need arises.
The Chairperson said for now it would be done in the legislation but the suggestion should be looked at in the future.
The clause increases the amount for which a prosecutor may grant bail in theft and other offences mentioned in section 264(1)(a), (b) and (c) of the Criminal Procedure Act where the amount involved in the offence does not exceed R20 000. The Chairperson said he sees nothing wrong with this since the prosecutor bail has to be confirmed in court the next day.
The old clause 17 is deleted and replaced by a new one which provides for the definition of "attend" to cover participation in a distance education course as requested by the Law Society of South Africa.
A new addition to the clause is the provision for a definition that extends the meaning of "law clinic". The Chairperson said they are still awaiting the response of the organised profession.
The clause provides for ceding of cost orders to law clinics in the event of cost orders being payable to a litigant or other person in terms of a court judgement. The costs are deemed to have been ceded to the law clinic.
A member asked if there should be no time frame set for this to begin.
Mr Labuschagne said this is why he added subclause (4) but since he discussed the matter with the Chairperson he does one think they should say when it should start applying as long as there is agreement with the principle.
The Chairperson agreed that subclause (4) should be removed.
The Chairperson said the drafters should look at formulating a definition of "law centre" because "law clinic" could have unintended consequences in that students in law clinics might be allowed to claim costs for work they do for their education.
The clause provides for an additional three members to represent the provincial societies in the Fidelity Fund Board of Control.
The clause is a consequential amendment flowing from clause 19. It provides that the quorum of the Board of Control shall comprise of 10 members instead of 8 in line with the extended representation.
Clause 21, 22, 24, 25 and 26
Mr Labuschagne said clause 23 is the main amending clause and clauses 21 up to and including 26 are consequential amendments. The clause amends section 6 of the Rules Board for Courts of Law Act, 1985 by bringing it in line with the constitutional provisions relating to various courts.
The clause amends section 5(1) of the Game Theft Act, 1991 by providing that any person who under the pretext of the Act wrongfully and maliciously arrests any person or cause him or her to be arrested or effects any search shall be guilty of an offence and upon conviction liable to a fine or imprisonment for a period not exceeding three years.
The clause extends the jurisdiction of a magistrate's court in respect of sentence under the Game Theft Act, 1991 to a period of imprisonment not exceeding three years or a fine. Where the court is of a regional division the period of imprisonment is increased to a maximum of fifteen years or a fine.
The clause brings the Magistrates Act, 1996 in line with the Constitution by providing for delegates to the NCOP designated by the Council wit a supporting vote of a least six provinces (instead of two thirds of all members of the Senate).
The clause repeals section 6 of the Magistrates' Courts Amendment Act, 1993.
Clauses 31 and 32
The Chairperson said Special Investigating Units are entitled to use advocates and attorneys that work for them to perform court work on behalf of a Special Investigating Unit. The first clause seeks to make this certain.
Clause 32 provides that a Special Tribunal has jurisdiction over any civil dispute brought by a Special Investigating unit or any interested party as defined in the regulations emanating from an investigation and to issue any order as it deems fit including costs orders.
The amendment flows from the Mdatjiece judgement on the issue of whether regarding section 51 and 52 of the Criminal Law Amendment Act, 1977, the regional court has jurisdiction to try and convict persons of crimes committed in the circumstances listed in Part 1 of Schedule 2 to the Act.
The clause makes certain that the regional court has jurisdiction to try charges of rape and murder where the offence was committed in circumstances specified in Part 1 of Schedule 2 of the Act.
The clause makes certain that the High Court has competence to pass sentence in cases that were referred for sentence from the regional court to avoid further dissenting judgements on the matter.
Mr Labuschagne explained that the Law Advisors preferred not to repeat the whole section where a minor amendment was being effected. The Chairperson said Mr Labuschagne should draw their attention to the difficulty in reading the clauses drafted this way so that they make sure they are know what they are doing.
Old clause 24
This clause is deleted.
The clause provides for transitional arrangements.
The Chairperson said clause 37(2) should be deleted.
The Chairperson said this clause flows from the judgement in S v Makaul (also referred to in S v Zitha). The clause defines robbery with aggravating circumstances.
The Chairperson said Mr Coetzee in his judgement noted that the Criminal Law Amendment Act, 1997, does not define "aggravating circumstances".
[ PMG Ed. Note: Goldstein J in S v Zitha also said the term "aggravating circumstances" is not defined in the Criminal Law Amendment Act which is itself not part of the Criminal Procedure Act, 1977 that includes a definition of "aggravating circumstances" in section 1. He said he thinks this is an oversight on the part of the legislature. He felt it is intended the definition in section 1 of the Criminal Procedure Act to apply to the same term in the Criminal Law Amendment Act].
The Court also said where an accused is being convicted before a regional court of more than one offence in circumstances where only one of such offences falls under sections 51 and 52 of the Criminal Laws Amendment Act, it is desirable for the regional court to refrain from imposing any sentence at all and for one court to deal with the question of sentence comprehensively. The Court said there appears to be a lacuna in the Act in not providing for such an eventuality. The Chairperson said that in such an instance he thinks the regional court should refer all the offences to the High Court for sentencing.
The old clause 25
The Chairperson said the clause is to be removed and put in the future amendments to the National Prosecuting Authority Act.
The Chairperson said the Committee still needs to finalise the issue of Law Centre and look at the holes pointed out by the Makaul judgment in the provisions of the Criminal Law Amendment Act, 1997.
Proposed Amendment of the National Prosecuting Authority Act
The Chairperson briefed the NCOP on what the Committee has done regarding the Directorate of Special Operations Bill: They had heard input from the Department of Justice on what they wanted to achieve in the Bill. They had also called in the National Prosecuting Authority, the South African Police Service and the National Intelligence Agency to hear what their concerns were.
It was felt that because this is a prosecution-driven unit, it should be included in the National Prosecuting Authority Act. It was felt that the Directorate of Special Operations Bill [B65-20] was no longer needed since it has to be included under the National Prosecuting Authority. The extra necessary provisions had now being incorporated as amendments to the National Prosecuting Authority Act. The proposed amendments still need some fine tuning but the Committee felt the underlying principle is right since the Constitution specifies one prosecuting authority. The head of the National Prosecuting Authority and the Minister are happy with this decision.
The first amendment in the Preamble was always there but it has just been moved up. The second one has been taken from clause 174 of the Constitution. The Chairperson said they still need to fine-tune the provisions here especially with reference to words such as "combating" with which he was not happy.
Mr Mahlangu suggested that the use of words such as "efficient" be reconsidered especially because the Preamble is an interpretative clause, care should be exercised in formulating it. The Chairperson agreed saying they need to look at the debate they had had on "efficient and effective" service in deliberations on the Promotion of the Access to Information Act.
Chapter 1 Introductory provisions
Clause 1 Definitions
The clause defines the Directorate of Special Operations as the Directorate as established by section 7(1).
Subclause (b) defines "head of Investigating Directorate" as the Deputy National Director referred to in section 7(3)(a), to an Investigating Director referred to in section 7(3)(b).
The Chairperson asked Mr De Lange to look at whether the definition "Investigating Director" should not be included under section 26.
The words "under" in subclause (b) in the definition of "Investigating Directorate" are removed an replaced by "by or in terms of".
The subclause also defines "special investigator" as a special investigator appointed under section 19A.
Chapter 2 Structure and composition of single National Prosecuting Authority
The Chairperson said the structure of the Prosecuting Authority remains the same except in the Office of the National Director where provision is made for special investigators.
Clause 7 Investigating Directorates
The Chairperson said the clause is important in that it limits the activities of the Directorate to certain areas.
Ms Chohan-Kota (ANC) said she sees a bit of overlap between the way subclauses (1)(a) and (b) are dealt with and reads that as giving a broader meaning to criminal proceedings.
The Chairperson said this is widening the meaning of criminal proceedings as it is very narrowly defined in the Criminal Procedure Act to include only the preparatory examination and prosecution. He said criminal proceedings have to be interpreted in terms of the Constitution. The attempt is to cover all bases because it is not known how the courts will interpret the provisions. The interpretation should not just depend on what is reasonably necessary to institute legal proceedings.
The Chairperson pointed to subclause (1)(c) where it does not refer to crime intelligence but correctly to "gather, keep and analyse information".
The Chairperson said subclause (1)(c)(i) is fine. However, subclause (1)(c)(ii)(aa) needs to be fine tuned to emphasise that it is not just committed offences that the Directorate investigates. A formulation to say they can investigate "unlawful or other conduct or activities of a person that is, or may lead to, a criminal offence". He said Mr De Lange is still considering wording to effect this formulation.
The Committee had no problems with subclause (1)(c)(ii)(bb).
The Chairperson said members should read clauses 7(1), 26(3) and 26A together as they make the balancing provisions.
Ms Camerer proposed in 7 (1A)(a) that the proclamations in terms of the Act should be submitted to Parliament before publication, not for approval, but to enable members to know what is going on. She added that the reason for this is to encourage a flow of information to Parliament.
The committee agreed that this should be changed so that it will say that all proclamations have to be presented to Parliament for information purposes.
Chapter 5 Powers, duties and functions relating to Investigating Directorates
The Chairperson said this was the most important part of the document since it deals with the powers of the Directorate.
The Committee decided the definition of "Investigating Director" would be moved to the Definitions section at Clause 1 and that the definition of "inquiry" would be deleted. This would leave Clause 26 Definitions and applications, with only two definitions, "investigation" and "specified offence".
The Chairperson noted that "specified offence" is a generic term for "offence" in this chapter. It does not broaden the category but gives discretion to the Investigating Director.
Clause 26A Additional provisions relating to Investigating Directorate of Special Operations
Here, Chairperson De Lange noted that Clauses 26A(1)(a), (c) and (d) refer only to the "Scorpions" whereas Clause 26A(1)(b) is more detailed and mentions the co-ordination of the activities of the Special Directorate with other relevant government institutions. This, said Chairperson De Lange, recognises the policy that there is some concurrent jurisdiction here.
Ms Camerer (NNP) complained Clause 26A is problematic since the Director, she said, is "left out of the loop". The Committee that is established by this Clause takes on all the responsibility that should be the Director's.
The Chairperson pointed out that the changing of the word "must" to "may" at 26A(1) takes care of Ms Camerer's fears that the Director's duties are being overtaken by the Committee. It means that the Committee may, or may not, perform the functions described in the Clause.
The Chairperson went on to point out that the Directorate of Special Operations is not a South African equivalent of the American FBI. The FBI is not a prosecuting authority, he said. The Scorpions are unique and cannot be compared to any operation in the world. Its concurrent jurisdictions present the possibility of conflict so there has to be a mechanism to break a deadlock. The Committee "may" perform this function. In addition, this Committee is mentioned only at Clause 26A so its role is a very narrow one.
Clause 27 Laying of certain matters before Investigating Director
Adv Masutha (ANC) suggested the heading be changed to "Reporting of certain mattersâ€¦", in the spirit of simple language. The Committee agreed to this change.
Clause 30 Preservation of secrecy and admissibility of evidence
Ms Jana (ANC) objected to the word "preservation", saying it made her think of jam. She suggested "preservation of secrecy" be replaced with "confidentiality".
Adv De Lange informed the Committee that headings cannot be changed by the Department since they are not part of the law. To change them, Butterworths must be contacted. The Committee took note of this.
The meeting was adjourned.