Criminal Procedure Second Amendment Bill; Judges Remuneration & Conditions of Employment Draft Bill: deliberations

Meeting report

JUSTICE AND CONSTITUTIONAL AFFAIRS PORTFOLIO COMMITTEE
26 October 2001
CRIMINAL PROCEDURE SECOND AMENDMENT BILL; JUDGES REMUNERATION AND CONDITIONS OF EMPLOYMENT DRAFT BILL: DELIBERATIONS

Chairperson: Adv J H de Lange

Documents:
Working draft of Criminal Procedure Second Amendment Bill [see Appendix 2]
Extract from the Criminal Procedure Act 51 of 1977: Sections 104-119 and 297-301
Judges Remuneration and Conditions of Employment Draft Bill
Proposed definitions of "Constitutional Court judge" and "judge" [see Appendix 1]

SUMMARY
The definition section of the Judges Remuneration and Conditions of Employment Bill was discussed, and the proposed definitions of "Constitutional Court judge" and "judge" were amended. Sections 2 - 4, 6, 8 - 14, 16 were approved. Section 5(2)(a) has to be amended. Section 7(2)(b) has to be corrected. The issue regarding the "National Revenue Fund" in section 15 has to be incorporated. The third column in the Schedule has to be deleted.

As regards the Criminal Procedure Second Amendment Bill, subsections 1-5, 7, 9 – 10, 12 were agreed to by the Committee. The reference to "alleged" in subsection 6(b) was removed. Clarity as to the precise status of the section 300 compensation order in subsection 8 was requested from the State Law Advisor. The phrase "or prescribing a penalty" was deleted from subsection 11.

MINUTES
Judges Remuneration and Conditions of Employment Draft Bill
Section 1
"active service"
The Chair called for a semi-colon to be inserted after the word "Act" in the proposed part (b)(ii) of the definition.

"annual salary"
The Chair noted that this definition has been corrected.

"Constitutional Court judge"
The Chair informed the Committee that the reason for the inclusion of "7 June 1994" in the definition is that Judge President Chaskalson was appointed to his current position on that date. The proposed definition of this term (see Appendix) is preferred because it is better formulated, and should thus be included in the Bill as it removes any doubt as to the precise meaning of the term.

Mr L Basset, Department of Justice drafter, suggested that in both the definitions in the Bill and in Document A "has" should be deleted from the phrase "has held", so as to add clarity.

The Chair agreed with Mr Basset’s definition.

The Chair informed members that part (iii) of the Document A definition has been included to accommodate Judge Didcott (as he then was), who passed away before holding the offices of Deputy President or President of the Constitutional Court.

"judge"
The Chair suggested that the phrase "or since" be inserted before "the fixed date" in the definition proposed in Document A, because there have been judges who have held those offices since "the fixed date". Yet the problem with adopting this definition of "judge" is that it does not include the judges of the former Territories, and perhaps "a judge in any of the former Territories" should be inserted as part (iv) of the Document A definition to accommodate these judges. In this way all judicial officers would effectively be covered by the definition, and then the proposed subsection 2 of the Bill might not be needed.

The Chair noted that the Committee agreed to the adoption of the Document A definition, and that subsection 2 was now "pithy". The definition section was thus accepted by the members.

Sections 2 to 4
The Chair noted that the Committee approved the formulations of these sections.

Section 5
Subsection 1(a)
The Chair informed members that the proviso in this subsection formerly referred to "section 2(a) and section 5(a)", but "section 11(3)(a)" has been inserted because these subsection now refer expressly to subsection 5(1)(a).

Subsection 2(a)
The Chair noted that section "4(1), (2) or (3)" has been added. No objections were raised to this provision.

Subsection 2(d)
The Chair requested clarity on the status of the phrase "or 3[(3)](2)[(b) or]??? (c)" , and consequently suggested that the reference to "(c)" be deleted. The aim of this particular provision is to prevent the awarding of a full salary to the judicial officer concerned, when he has only served for a negligible period of time.

Mr M Mzizi (IFP) inquired as to the position should the disablement occur during the execution of the judge’s service.

The Chair replied that this clause would then apply and suggested that the judge would have to ensure he has a satisfactory insurance policy. There are no further objections to this phrase.

Subsection 4
Dr J Delport (DP) contended that the terms "Constitutional Court judge" and "judge" occur in "just about 1000 different places" in the Bill, yet only in subsections 2(a) and (4) are the two referred to separately. Consequently, the terms "Constitutional Court judge" , "judge of the Supreme Court of Appeal " and "judge" should be expressly referred to in the relevant sections, as the current references to them are "irritating". Would this option be possible and worthwhile?

Mr Basset replied that it would indeed be possible to refer to the precise title of the judicial officer concerned on a clause-by-clause basis.

The Chair suggested that this issue be discussed at a later stage of the proceedings.

Mr Basset reminded the Chair that Dr Delport’s proposal had in fact been suggested by the Department at the beginning of the deliberations.

The Chair acknowledged Mr Basset’s statement and noted that this distinction is entrenched in section 176 of the Constitution, with 176(1) dealing with Constitutional judges, 176(2) with "other judges" and 176(3) deals with the benefits accruing to judicial officials. Thus the proposal by Dr Delport fits in well with this framework. Would it be possible to amend section 176(3) to provide "Constitutional judges or judges"?

The Chair then drew Dr Delport’s attention to section 5(2) of the Bill, and contended that subsections 2(a) and (b) apply to both "Constitutional Court judges" and "judges", subsection 2(c) applies only to judges and subsection (d) could apply to either, depending on the decision reached. There would thus only be one provision in this Bill that would refer to "judge" only, and for this reason the current formulation in the Bill should be retained.

Section 6
The Chair noted that "permanent capacity" has been inserted in 6(1), and the reference to "annual" salary is now incorporated in 6(1)(a). There were no objections to this section.

Section 7
Subsection 1
The Chair noted that the phrase "for a period or periods which, in the aggregate, amount to three months a year" in the former section 7(1)(a)(i) has now been replaced by a proviso [the former section 7(1)(b)] that spells out the exact period of service referred to.

Subsection 2
The Chair noted that 7(2)(a) and (b) were inserted at the insistence of Ms S Camerer (NNP), who proposed that judges who serve the compulsory three months should then be paid the full amount due. Yet this provision is not completely correct because "at least three months obligatory service" has to replace "service" in the first line of 2(a), and 2(b) should incorporate a provision to the effect of "including parts (a) to (d) of the definition of service in section 1, but excluding section 7(2)(a)". The purpose of this phrase is to require those judicial officers who serve on a voluntary basis to accept the amount suggested in the provision, and if they do not agree with the stipulated amount, they can always simply refuse it.

The Chair called on Mr Basset to incorporate the reference to the "three months obligatory service", and noted that members agreed with the remainder of the provision.

Sections 8 to 10
The Chair noted that no concerns with these sections were raised by members.

Section 11
The Chair informed members that the term "contemplated" in 11(1) has replaced "authorised", and the section "could not be clearer".

Imam G Solomon (ANC) asked if the inclusion of the term "or judge" in the second line of section 11(2) creates any problems.

The Chair assured Imam Solomon that this provision remains unaffected by the term.

Mr Mzizi asked if these judges would be awarded a full pension.

The Chair replied that these judges would not receive the full amount because, in terms of section 5(2), they would receive a reduced pension and certain benefits would not attach to the pension awarded, and that the inflation metre would not apply in the calculation of the final amount.

Mr Basset contended that this service would be on a voluntary basis, and for this reason the judicial officer concerned could very well choose to refuse the pension.

Sections 12 to 14
The Chair noted that the former Chapter 3 of the Bill had been removed and replaced by a revised Chapter 3. No objections were raised to these sections.

Section 15
Mr Basset stated that the gratuities would be paid from the Revenue Fund.

The Chair replied that the references to sections 6 and 10 of the Bill in section 15 must then be expressly included in this provision. Is the term "revenue" used anywhere else in this Bill?

Mr Basset responded that the term is used in section 2(5) of this Bill.

The Chair suggested that the term "revenue" be removed from section 1 and that this section, together with section 2(5), should then simply refer to the "National Revenue Fund".

Ms Camerer questioned the need for the inclusion of the term "benefits" in this provision.

The Chair replied that there are three reasons for the formulation proposed by this section:
- "salary" is defined in section 5 of the Bill and "annual salary" is defined in section 2.
- the references to sections 2-5, 6, 7 and 9-10 in section 15 have been included precisely to define the "benefits" mentioned here.
- section 176 of the Constitution does differentiate between "benefits" and "salary allowance", and its example must be followed by this Bill.

The Chair called on Mr Basset to effect these proposed amendments, and to correct the headings of the sections in the new Chapter 3 of the Bill.

Section 16
The Chair noted that the former subsections 1-3 have now been removed, and have been replaced by new subsections 1-5.

Subsection 1
The Chair noted that the former parts (c) and (d) no longer apply, but that it would be retained "for the sake of peace and good PR". Mr Basset just has to ensure that all the salient concerns have been accommodated in the provision.

Subsection 2
Mr Basset informed the Committee that this section has been included to accommodate Judge Davies, who had been an acting judge in Transkei till July 1997 but who, according to the Transkei decree mentioned in this service, has not been discharged from active service but rather retired. Without the inclusion of this provision, Judge Davies would not be able to benefit from this Bill.

The Chair agreed with the inclusion of this provision.

Subsection 3
The Chair called for this provision to be deleted.

Subsections 4 and 5
The Chair recommended that the numbering of these two provision be switched, and noted that there were no objections to the substance of section 16.

Sections 17 and 18
The Chair noted that members raised no objections to these provisions.

The Chair summarised the amendments proposed in this session that have to be effected:
- a final decision on the precise definition of "Constitutional Court Judge" is needed.
- sections 5(2)(a) and 7(2)(b) have to be corrected.
- the technical issue regarding the "National Revenue Fund" has to be incorporated.
- the need for column 3 of the schedule has to be clarified.

The Chair pointed out that the Bill fails to address the issue of impeachability and its effects on the remuneration of these judicial officers. Clarity would be needed on this matter.

Criminal Procedure Second Amendment Bill
Clause 2 : Section 105A
Mr J Jeffery (ANC) referred to the extract from Criminal Procedure Act 51 of 1977 and asked what section 103 refers to.

The Chair replied that section 103 deals with the charge sheet to which the accused has to respond via a plea. The proposed section 105A is better suited where it is as it properly fits after section 105 of the principal Act. Furthermore, the proposed section 105 at least refers to section 105A.

Section 1
Subsection 1(a)
The Chair agreed with this subsection, and noted that the Committee concurred.

Subsection 1(b)
The Chair noted that the word "only" has been removed from the beginning of 1(b), and that the phrase "at least" has been inserted in 1(b)(ii). Furthermore, the "reasonable[ness]" test in 1(b)(iii) has now been placed in the latter part of the subsection.

Mr Labuschagne, Department of Justice drafter, suggested that the phrase "taking into account the nature of and circumstances relating to the offence and the interests of the complainant" should be removed from 1(b)(iii), because the sole test should properly be the "reasonable[ness]" test as stipulated in that subsection.

The Chair agreed. The Committee agreed to this revised formulation of the remainder of this subsection.

Subsection 1(c)
The Chair informed the Committee that the word "and" has now been inserted at the end of 1(c)(i), and that the phrases "or his or her legal representative" and "the State" have been removed from this subsection.

Section 2
Subsections 2(a) and (b)
The Chair noted that no objections were raised to these subsections.

Subsection 2(c)
The Chair noted that part (ii) of this subsection has been removed entirely from the Bill. Members did not object to its deletion.

Subsection 2(d)
Mr Mzizi questioned the need for the interpreter to provide a certificate as stipulated in this subsection, because surely it is implied that the interpreter must, at all times, perform to the best of his/her ability? Therefore a certificate here is not needed.

The Chair replied that the reason for the inclusion of the certificate requirement is that, should the accused challenge the interpretation of the proceedings, the interpreter would then be able to provide the certificate confirming what was said during the proceedings. Thus the accused would not be able to attack the interpretations on this ground.

The Chair noted that there were no further objections to this subsection.

Sections 3 to 5
The Chair noted that all agreed to the substance of these sections.

Section 6
Subsection 6(a)
The Chair noted that members had no problems with this subsection.

Subsection 6(b)
Mr Labuschagne informed the Committee that the phrase "is alleged or" has been removed from subsection 6(b)(ii) because only the accused is able to allege, and it would thus be redundant to include this phrase in this subsection.

The Chair cautioned against a hasty removal of this phrase, as a new legal representative might be appointed by the accused during the course of the proceedings whose signature is not on the plea bargain agreement. Furthermore, the court cannot enter a plea of not-guilty merely on the basis that it is "alleged", as it has to be satisfied that all the requirements have been proven.

Mr S Swart (ACDP) contended that the wording of sections 112(a) and (b) of the principal Act implies that the presiding judicial officer already has the facts of the case, and would then question the accused on the facts "alleged" on this basis. In other words, those are the "alleged" facts on which the accused would be questioned by the magistrate or judge.

The Chair accepted this point.

Dr Delport suggested that this provision does not deal with the charge per se, but rather with the allegations agreed to in the agreement, yet 7(a) refers to the "charge". Surely this needs to be corrected?

The Chair agreed with Dr Delport, as the specifics of the charge could be totally different to what the accused agreed to in the plea bargaining agreement.

Mr Labuschagne disagreed with these assertions and said that, in practice, the accused would plead guilty to a specific charge, which would be mirrored in the charge sheet.

Dr Delport proposed that the current dilemma could be solved by including a reference to 6(a)(ii) in this section.

The Chair stated that subsection 5 is properly formulated as it requires "the charge" to correspond to the agreement signed by the accused. It seemed that Dr Delport’s proposal is the most viable option to solve the inconsistency, and a reference to 6(a)(ii) has to be included in 6(b)(ii).

Dr Delport suggested that this reference be worded "the charge in the agreement".

The Chair proposed that 6(a)(ii) be amended to provide "hereinafter referred to as the agreed charge" so that any future uncertainty may be avoided.

Mr Labuschagne reiterated his earlier contention that there can only be one charge to which the accused may agree, and that is the charge contained in the plea bargaining agreement. It is thus to this alone that the word "charge" refers.

Dr Delport agreed, as this fixes the term firmly in context.

The Chair proposed that "alleged" then has to be removed from 6(b)(ii) as Mr Labuschagne suggested earlier. The remainder of the subsection is accepted by the Committee.

Subsection 6(c)
Mr Mzizi requested clarity regarding the waiving of the accused’s right to be tried before another presiding officer.

The Chair responded that this subsection merely allows the accused to request a different magistrate or judge to hear the matter, because the presiding judicial officer has already asked all the relevant questions based on the facts of the crime and has subsequently concluded that the accused is guilty. Therefore, in principle, the judicial officer who has heard the admission of guilt of the accused should not preside over the subsequent trial as well.

The Chair noted that members agreed to this subsection.

Subsection 7
Mr Labuschagne contended that the addition of 7(b)(ii) would make the provision too lengthy, and instead 7(b) should be inserted as it contains the same sentiments and objects of 7(b)(ii).

The Chair noted that the phrase "must… have due regard to" in 7(b)(ii) is the most onerous obligation this Bill can impose on the presiding judicial officer.

The Chair noted that members raised no objections to this subsection.

Subsection 8
The Chair inquired as to the conditions to be dealt with in this subsection.

Mr Labuschagne replied that when using the section 300 compensation order under the principal Act, the court prefers using section 297 as a condition for the postponement or suspension of sentence. It has been argued by academics that a section 300 compensation order does not form part of the sentence, and therefore the prosecution does not have the authority to plea bargain on this matter. This is also the view of the Department.

The Chair stated that this means effectively that the reference to an "order referred to in section 300" has to be deleted from 1(b)(iii)(bb).

Mr Labuschagne replied that the National Director of Public Prosecutions (NDPP), Mr B Ncguka, might have to specify in the directives whether plea bargaining on compensation orders are part of the suspended sentence.

The Chair then inquired whether this concern is covered by the directives prescribed by subsection 11 of this Bill.

Mr Labuschagne replied that members could consider this when subsection 11 is discussed.

Mr Swart questioned whether this meant that the section 297 procedure would then completely replace the section 300 compensation order in this provision.

The Chair reminded Mr Swart that it was agreed in a previous meeting that the section 300 compensation order is not part of the sentence, but then 1(b)(iii)(bb) has to be amended accordingly to provide that it would be awarded "in lieu of a suspended sentence".

Mr Labuschagne contended that if the subsection were left as it currently stands, the prosecution would be able to plea bargain on a section 300 compensation order and the court would then have to decide whether this order should be granted or not. If this option were adopted, the development of this procedure would then be followed in practice.

The Chair asked what measures will be set in place to ensure that the legal effect of this order binds the presiding judicial officer.

Dr Delport expressed a different view and preferred that a provision "including a section 300 compensation order" be inserted at the end of section 105A(1)(a).

Mr Swart asked why it was decided that the reference to section 300 should be removed from 1(b)(iii)(bb).

The Chair replied that it was suggested that its inclusion would be too restrictive, and that there are other options in the principal Act that could be employed to achieve the same result.

The Chair agreed with Dr Delport’s earlier suggestion that part (iii) be added to section 105A(1)(a) to provide that "whatever does not form part of the sentence may be subject to negotiation between the State and the accused". Subsection 1(b)(iii)(bb) would then have to be amended to comply with the new part (iii), and subsection 11 would also have to be amended to provide that "any order made in terms of 1(a)(iii) would have the same effect as an order given under this section". Subsection 7 would have to be amended similarly.

Mr Labuschagne agreed with the Chair’s proposal, but maintained that this would not be covered by the section 300 compensation order because it does not form part of the sentence. Consequently, if the court is satisfied both that the accused is guilty of the alleged crime and that the sentence imposed is agreed to but does not agree with the compensation order, does it then have the authority to grant the plea of guilty?

The Chair replied that the court would not be able to grant the compensation order, only the sentence and the plea. If the court is allowed to grant the compensation order as well, it implies that the compensation order is not binding on the court and would be disregarded. This is not the intention of the Bill.

The Chair requested Mr Labuschagne to clarify this matter and to report his findings at the next meeting.

Subsection 9(a)
The Chair noted that the phrase "imposition of sentence" in 9(a)(i) has now been replaced by "proceedings", to accommodate Ms Camerer’s issue with the former phrase "proceed with the proceedings". No further objections were raised to the remainder of this subsection.

Subsection 10
The Chair noted that the phrase "any negotiations" had been added to 10(a)(i), and that "thereof" in (a)(iii) had now been replaced with "of the agreement". Furthermore, the proviso after (a)(iii) had now been added. All agreed to this subsection.

Subsection 11
The Chair noted that the lengthy reference to the NDDP has been removed following Ms Camerer’s discomfort with it.

Mr Labuschagne contended that the phrase "in respect of which a compulsory sentence is prescribed" in (b)(i)(aa) has been deleted because the principal Act itself refers to "minimum penalty", and this phrase has been inserted here to maintain consistency and congruency between the two pieces of legislation.

The Chair suggested that the phrase "or prescribing a penalty therefore" be deleted from (b)(i)(aa), as its inclusion seems redundant.

Mr Labuschagne pointed out that this provision was included to prescribe a penalty for those sections of the principal Act that create offences but not the ensuing penalties.

The Chair acknowledged Mr Labuschagne’s reasoning, but stated that 11(b)(i)(aa) is dealing with minimum sentence provisions, and the inclusion of that phrase would only "water down" the provision.

The Chair noted further that (b)(iv) had been added. No further objections were raised to the remainder of this subsection.

Subsection 12
The Chair noted that all agreed to this subsection.

The Chair concluded the meeting by requesting Mr Labuschagne to draft a document containing the original Bill and the relevant amendments proposed by this Committee.

Appendix 1:
Document A
‘Constitutional Court judge' means any person holding the office of -
- Chief Justice of South Africa;
- Deputy Chief Justice; or
- judge of the Constitutional Court,
and includes any person who, since 7 June 1994, has held, the office of
- President of the Constitutional Court;
- Deputy President of the Constitutional Court; or
- judge of the Constitutional Count;

'judge' means any person holding the office of-,
- President or Deputy President of the Supreme Court of Appeal;
- judge of the Supreme Court of Appeal;
- Judge President or Deputy Judge President of any High Court; or
- judge of any High Court,
and includes any person who, at the fixed date, held the office of
- Chief Justice of South Africa or Deputy Chief Justice;
- Judge President or Deputy Judge President on any High Court or
- judge of any High Court;