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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
4 October 2000
JUDICIAL MATTERS AMENDMENT BILL; POSSIBLE AMENDMENT OF THE NATIONAL PROSECUTING AUTHORITY ACT
Documents handed out:
Draft 1: Working Document - Judicial Matters Amendment Bill [B 63 - 2000]
Section 6 of the Magistrates' Courts Amendment Act, No. 120 of 1993
Law Society of South Africa's proposal for amendments to the Attorneys Act, 1979
A letter from the Office of the Inspecting Judge
S v Budaza 1999 (2) SACR 491 (E)
S v Mofokeng and Another 1999 (1) SACR 502 (W)
S v Mangesi 1999 (2) SACR 570 (E)
S v Ibrahim 1999 (1) SACR 106 (C)
S v Mdatjiece (Case No. SH 375/98) TPD
Chairperson: Mr JH De Lange
The Department went through the amendments introduced in the previous meeting with the members. It also came up with further amendments to meet the proposals of the Committee.
On the proposed amendment of the National Prosecuting Authority Act, the Chairperson said he had talked to the National Director of Prosecutions, Mr Ngcuka, and the Minister of Justice and they had indicated that they want certain changes to the provisions. Mr Ngcuka wanted it to be specified that the Directorate's investigators are "special investigators" to distinguish them from ordinary police doing an investigation. The Minister felt that the inclusion of the Presidency in the Coordinating Committee is inappropriate which was as a result of the uncertainty of where the Scorpions would fit when the legislation was originally drafted. Now that it is placed within the National Prosecuting Authority the Minister should head the Coordinating Committee.
The Chairperson felt uncomfortable that they were only creating the Scorpions. He felt allowance should be made for the creation of another directorate, especially to deal with white-collar crime.
Judicial Matters Amendment Bill
Mr Labuschagne provided a first draft of the amendments they had agreed to in the previous meeting and further possible amendments.
Mr Labuschagne said the new clause has two options for hearing of bail applications: Option 1 provides for bail applications in respect of persons charged with offences mentioned in Schedule 6 to be heard by the regional court. Where it is not available or is unable to consider such an application, a Director of Public Prosecutions or a prosecutor authorised by him in writing may direct the bail application to be considered by any lower court available in the area of jurisdiction of such regional court.
Option 2 provides for bail applications in respect of persons charged with offences mentioned in Schedule 6 to be heard by the magistrate's court and allows the Director of Public Prosecutions concerned to decide in what court the bail application is to be heard.
Mr De Lange said he had discussed Option 2 with Mr Nel who had no problems with it.
Mr Swart (NNP) asked if stating specific grounds in Option 2 would not lay the decision of the Director of Public Prosecutions open to a defence attack. He asked if the list is desirable at all.
The Chairperson said if the criterion were not included in the option the test would be whether it is expedient for the administration of justice. He said the drafters should add "necessary" for the administration of justice.
He said the one thing he would want changed in the clause is the mechanism of how the Director of Public Prosecutions directs where the application must be considered. He said he thinks there should be some form of record or writing down.
The Chairperson said the clause as it stands (Option 2) entitles the accused to think that bail would be heard in the magistrate's court until the Director goes there and decides that it should go to some other court.
Mr Labuschagne said the prosecutor as dominus litus (principal litigator) decides where the bail application is heard.
An amendment is introduced to the existing clause 9 of the Bill.
The clause was rejected.
New Clause 18
This new clause is proposed to provide for the new definition of "attendance" as requested by the Law Society of South Africa.
Subclause (b) provides for a new definition of "law clinic" as requested by the Legal Resources Centre.
New Clause 19
A new subclause (XX) is inserted to provide for the recovery of costs by law clinics as requested by the Legal Resources Centre.
New Clauses 22 to 27
Mr De Lange said the clauses effect amendments to the Rules Board for Courts Law Act, 1985. The Chairperson commented that these amendments make sense.
New Clause 32
Mr Labuschagne said a tribunal can also make cost orders and this clause seeks to make it certain. The Chairperson said the amendment does not look problematic.
New Clauses 33 and 35
The Chairperson said these are amendments to the minimum sentence provisions emanating from numerous court cases handed out to the Committee. The decision of the courts has been unanimous that the regional courts retain their jurisdiction to hear cases of murder and rape. There has been conflicting decisions on whether after convicting an accused the regional court may refer the matter for sentencing to the High Court, and whether the latter court should impose a sentence of life imprisonment in such referred cases.
Mr Labuschagne said the reason for the uncertainty is because it is argued that when the regional court refers a matter to the High Court, the latter has to make a formal finding of fact in order to impose sentence for life imprisonment.
The Chairperson asked members how they feel about the period of review of the law being extended to two or three years. Members felt that two years was well suited and the Chairperson said an amendment should be drafted to effect this.
The Chairperson said Mr De Lange should make a note to include the clause about the National Director (old clause 25) in the amendments to the National Prosecuting Authority Act.
He said he has some nervousness about clause 3. He asked Mr Labuschagne whether the Committee had referred the Interpretation Act to the Law Commission for review. He said this should be looked into and a resolution be drafted stating that the Committee confirms its earlier resolution. If matter were not referred to the Law Commission for review, the resolution would indicate that the Committee in principle sees nothing wrong with Clause 3. However there is an impression that it might create confusion in interpretation of similar provisions in other legislation if left as it is.
Mr Labuschagne said he would talk to Mr Gauntlet and Mr Botha and convey their replies to the Committee. He also undertook to effect the proposed amendments and bring the draft for the Committee's consideration.
Documents before the Committee
The Chairperson told members that they had before them a letter from the Judicial Inspectorate which had proposed the amendments effected in clauses 15 and 16. Also, there was the letter from the Law Society of South Africa which proposed amendments effected in clauses 17 and 18. He mentioned that in addition there were court cases that members might find interesting to look at as they affected aspects of legislation they were dealing with.
Investigating Directorate of Special Operations
The Chairperson said he had talked to Mr Ngcuka, the National Director of Public Prosecutions, and the Minister of Justice the previous day about the proposed amendments around the areas of jurisdiction and they suggested some changes.
The Chairperson said the attempt is at creating an investigating capacity for crimes that are committed in an organised fashion. He asked Mr De Lange to find a formulation to effect this intention in the provisions.
Mr De Lange said "Investigating Directorate" would be left out except where it is being defined and would be replaced by "Directorate of Special Operations".
The Chairperson said Mr Ngcuka felt strongly that the word "special" investigator be used to refer to the Directorate's investigators to remove the notion that they are ordinary police doing an investigation.
Clause 7 Investigating Directorates
The Chairperson said clause 7 has to be read with clauses 26(3) and 26A to get the jurisdiction point. He said Mr Ngcuka pointed to a contrast between clause 7(1) and 26A(1)(c) where it says the Committee can identify crimes that must be investigated by the Directorate. This is in conflict with the Proclamation because the crimes are already mentioned there.
It was suggested that the provision in clause 26A(1)(c) be removed and a redraft would be effected in clause 7(1) to clarify the matter.
The Chairperson said in subclause (1)(a) the Committee is looking at the concept of crimes committed in an "organised fashion". He said Mr Ngcuka also raised this and wanted to ensure that jurisdiction is clarified. Words like "organised crime" are found to be problematic because they limit the Directorate's investigation.
The Chairperson said there should be a possibility of creating other Directorates although this would not be created yet.
Ms Camerer (DP) asked how many Directorates there are at the moment. She said if there are three already she sees no use of making a possibility for one more because whenever the State creates space for itself it always uses it.
The Chairperson said there are a number of overlaps between the Investigating Directorates for Organised Crime and Political Crime, for Organised and Violent Crime and for Organised Crime and Public Safety that are to be collapsed into the Scorpions.
He said he is nervous that they are only creating the Scorpions; he would want a Directorate to deal with "white collar crime". He said for instance taxi violence or political violence might flare up in an area and these might not fit squarely under organised crime. He said he would talk to Mr Ngcuka to say the Directorates should be limited to two.
The drafter was reminded to redraft subclause (4)(a)(v) to make its intention clearer.
Mr De Lange said members should look at clause 28(2) as it makes clause 7(4)(a)(v) more specific.
Ms Camerer said there should be a reference to clause 28(2) in clause 7(4)(a)(v) to make it clear.
Mr De Lange said subclause (1) would be changed to say "in consultation with the National Director" instead of "after" consultation. The change is made to ensure that the Minister of Finance, the Minister of Justice and the National Director of Public Prosecutions agree on the remuneration, spending and benefits of investigators.
He mentioned that the size of staff would be decided in the regulations.
Chapter 5 Powers, duties and functions relating to Investigating Directors
Mr De Lange said what is proposed in the Chapter is to change the concept of an 'inquiry" which is not what the Directorate does in practice as not everything they do is related to instituting proceedings. The change is to show that the Directorate would do "flat band" investigations to prevent it being open to challenge in court.
The Chairperson said he had discussed the part about the Presidential Coordinating Committee with Mr Ngcuka and he expressed a concern from the Minister's side. The concern pointed to a flaw with regard to the composition of the Committee because when drafted the Bill grappled with where the Scorpions should fit. As it is thought that it makes sense to put them in the National Prosecuting Authority Act, it may be inappropriate to involve the Presidency here but instead the Minister of Justice and Constitutional Affairs. The Committee can still be established by saying that "It is hereby established a committee to be chaired by the Minister of Justice" and not the President.
Subclause (1) Mr De Lange said there would be one change in the subclause to say "may" instead of "must"
Subclause (1)(c) The Committee agreed the subclause should be amended and the matter should be dealt with wholly under clause 7(1) to eliminate the conflict with the Proclamation.
A member said there should be a mechanism to ensure there is a procedure, which is followed if the SAPS have a case they want to forward to the Scorpions. Also, for a scenario where a case is assigned to the Scorpions.
Mr De Lange said he would look at the issue and come back to the Committee on the proposal. The Committee agreed to flag the issue.
Clause 28(13) and (14)
It was decided that the drafters need to reconsider the provisions of these subclauses to see if there is a need for preparatory investigation or all that is needed is an investigation. Mr De Lange said to hold a preparatory investigation, one does not need all the procedures prescribed but obviously powers.
Mr De Lange said an oversight occurred in drafting the provision to say the Directorate may approach a judge for permission to intercept telephonic conversations in doing an investigation. He said this might be done by way of a schedule.
Mr De Lange noted that the clause does not refer to powers of police officials anymore.
Mr De Lange said the suggestion is that the clause should say the Chief Executive Officer is the accounting officer of the Directorate - a term used in the Public Finance Management Act, instead of saying he is accountable for what is enumerated in subclause (3A)(b). He mentioned that the same thing should apply to the Director General and the legislation providing for his accountability might have to be changed in this regard.
Clause 40 regulations
Mr De Lange said there was a suggestion that in subclause (1) the Minister after consultation with the National Director may make regulations. The Committee decided to flag the issue.
Mr De Lange mentioned that the Chairperson had requested that the three year period of imprisonment in this clause be increased to 25 years.
Mr Schmidt (NNP) said this is not a bad idea since the court is not bound to pass the sentence of 25 years but it merely widens its discretion.
Mr Mgidi (ANC) suggested that the option of a fine be excluded.
Mr De Lange said this would be dangerous because in such circumstances the court merely suspends the sentence especially where the offence is minor. The Committee agreed to flag the issue. The meeting was adjourned.