Durban Westville Correctional Centre incident on 17 September: briefing by Department of Correctional Services, & Second Hand Goods Bill: Responses by Department to negotiating mandates

NCOP Security and Justice

23 September 2008
Chairperson: Kgoshi L Mokoena (ANC, Limpopo)
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Meeting Summary

The Department of Correctional Services briefed the Committee on the stabbing incident at Durban Westville Correctional Centre on 17 September, which had led to the death of one inmate and injuries to other inmates and officials. It was explained that this Correctional Centre housed about 4 300 offenders, with between 300 and 400 in one unit. Ten gangster offenders had been trying to push through a gate that was open, on the way to the exercise period, and the so-called “Forums” had tried to prevent this, which led to a fight. Weapons that were used in the fight included one knife, two padlocks swung inside socks, three home-made knives, glass window-pane, a broomstick, gym equipment, a cricket bat, chairs and a fire extinguisher. Officials were able to summon help and disarm the offenders. Seven offenders were injured with open wounds and head injuries. One official was bruised on the head. One of the offending perpetrators, who had the knife, died, possibly as a result of being struck on the head. The incident had been duly reported. The immediate precautionary measures included a lock-up, restricted movements in the next days, a staff briefing, a full search of the Centre and the matter being handed over to South African Police Services, and appointment of four investigators. Problems had been experienced in this and other Centres with gangs, but regrettably too little was known about the gangsterism, where and how they were to operate, and that such gangs were usually rife amongst awaiting trial detainees, who were not automatically screened on entry. This problem was exacerbated by overcrowding and inadequate technology to conduct full screenings.  The Department had however drafted a document on the anti-gang strategy, and was getting Case Management Committees involved after admission, attempting to keep medium offenders separated from maximum offenders, and using a reward system for information from offenders, including remission of sentences. There would be regular mass searching by utilising the Emergency Support teams. Offenders involved would often be re-graded and would be sent to Kokstad Correctional Centre. It was pointed out that the dynamics were peculiar to each separate Centre and this made it difficult to find a solution.

Members were concerned about the comments about the lack of knowledge about gangs, their continued existence, the overcrowding that had been cited as problematic for some time, and whether the Department was really managing to address the problems. Several members commented that while the gangs existed there could be no meaningful control nor rehabilitation in the Centres. Members were concerned that inmates had access to items that could be used as weapons, whether there was any rehabilitation, whether inmates were being adequately protected from each other, the skewed ratios of staff to offenders, and whether there was sufficient searching. Both the Committee and the Department agreed that there was a need for a further meeting to engage on what was happening in the Department, and the Department stressed that it needed more resources and also needed much stronger attention paid to it during the forthcoming Criminal Justice System Review. The discussion document on the gang problem could form a useful basis for discussion.

The Committee then resumed its deliberations on the Second Hand Goods Bill. The negotiating mandates of all provinces had been provided to the South African Police Service (SAPS) legal division, which gave a detailed comment on each point raised, and indicated those areas of the Bill in which further amendments were recommended. Several provinces had raised the same areas of concern. It was explained that the Bill would not negatively affect the roles of provincial government and provincial commissioners, who would implement the legislation at local and provincial level. The holding period for goods had received various suggestions but it was strongly recommended that this remain at seven days for various logistical reasons. The criteria for registration were already sufficiently set out in the Bill, and SAPS would be prepared to close any gaps by regulation, which would enable it to keep pace with developments. Further amendments that were suggested to clarify the position of charities, following a recommendation from the Eastern Cape, and a definition of “pawn transaction” would be inserted in line with a suggestion by Gauteng. A task team was established also to translate the Bill. KwaZulu Natal’s suggestions in relation to offences were accepted and clause 32 would now be amended to include the offence of failing to comply with the required certificate, whilst a new subclause (3) would be inserted to bring back in some penalties that were inadvertently excluded from previous drafts. Irrigation equipment would be included in the Schedule, but scrap steel could not be included as a controlled metal. Limpopo’s suggestions were tabled and the reasoning behind SAPS’s comments was explained. Mpumalanga’s concerns around monitoring were noted. Northern Cape’s comments were also noted, and the word “identity” would qualify the word “photograph” in Clause 4. Their proposal in relation to cross referencing were also supported. North West’s comments were tabled and explained. Western Cape’s suggestions on improvement of service delivery had been noted. Following the earlier deliberations of the Committee, it was also noted that the Long Title would be amended, that Clause 14 was to be amended to cater for foreign nationals wishing to participate in the business, and that second hand books and clothing would be excluded. Members asked some questions of clarity, and it was agreed that the comments would be conveyed to the Provincial Legislatures and that a final discussion would take place after the recess.

Meeting report

Opening Remarks
Briefing by Department of Correctional Services on Stabbing Incident taking place at Durban Westville Correctional Centre
Comm Alfred Tsetsane, Chief Deputy Commissioner and currently Acting National Commissioner, Department of Correctional Services, tendered the apologies of the National Commissioner who was in Zambia.

He said that he would like to give a broad picture of the incident at Durban Westville prison on 17 September. He noted that the Department of Correctional Services (DCS) was facing many challenges of gangsterism, and that this situation must be seen also in the broader context. Often gangs that operated on the outside would, once members were incarcerated, regroup for specific purposes within the Correctional Services system. The DCS had drafted a discussion document on how to deal with gangsterism, and it would help to know what the origin was of gangs and how they operated. DCS was not ruling out the possibility of corruption and collusion from officials.  He noted that at this particular Correctional Centre, matters had been fairly quiet since 2005. It was notable that most violence happened amongst awaiting trial detainees (ATDs).

Comm Zebilon Monama, Area Commissioner for Westville Prison, KwaZulu Natal, said that the incident had occurred on 17 September at Durban Medium B. This Centre housed about 4 300 offenders, with between 300 and 400 in one unit Offenders had been trying to push through a gate that was open, on the way to the exercise period. Ten “26 Gangster” offenders were involved. Gangs apparently planned matters so that certain of the members would start a fight at a particular time. There were other people in the vicinity and the crowding around the fight had prevented some officials getting through, although others were able to help. Officials were able to summon help and disarm the offenders. Those fighting back against the gang members called themselves the Forums / Peace Committees.

The Gangsters and Committee had used one knife was used, two padlocks in socks, three home made knives, glass window panes, a broomstick, gym equipment, a cricket bat, chairs and a fire extinguisher. Seven offenders were injured with open wounds and head injuries. One official was also bruised on the head. One of the offending perpetrators, who had the knife, died, possibly as a result of being struck on the head. The incident was reported on the same day to South African Police Services (SAPS) and the Regional and National Commissioners and the Minister were informed.

Immediate precautionary measures were taken to lock up all offenders, and on the next few days they were only taken to the kitchen and exercise areas in small numbers. Movement restrictions were put in place. The Area Commissioner addressed all staff at a staff meeting on 18 September. There was a full search of the Correctional Centre. After the matter was handed over to the police, four investigators were appointed, from outside Durban.

Mr Monama noted that there was a problem with gangs, but this had to date been mostly in the Medium A section. He tabled a list of unnatural deaths of offenders in this Correctional Centre, from 2005 to date. He reiterated that most of the challenges related to gangsterism, related to the ATD, who were mostly in Medium A, and who were not screened on entry. There was a problem of overcrowding and lack of knowledge about the gangs on the part of the officials. There was enormous secrecy on gang activities. The lack of technology such as X-ray scanners meant that not every visitor to the Centre was scanned.

He said that other forms of interventions had included the drafting of a document on the anti-gang strategy, getting Case Management Committees involved after admission, and attempting to keep medium offenders separated from maximum offenders, as the latter were the most involved in gangs. He cited a case in the past where one offender had been imprisoned for only 5 years but his involvement in gangs while in the Centre had raised his sentence to over 30 years. The DCS was also using a reward system for information from offenders, including remission of sentences. There would be regular mass searching by utilising the Emergency Support teams. Offenders involved could be re-graded and could be sent to Kokstad Correctional Centre.

Comm Tsetsane added that although gangs were prohibited, they did exist. Removal of the ringleaders to another centre created its own problems around family visits, which in turn affected the rehabilitation process. There were, additionally, problems of space.

Comm
Mnikelwa Nxele, Deputy Regional Commissioner, and currently Acting Regional Commissioner, Kwazulu Natal, noted that gangs in each region had their own peculiarities, which made it more difficult to control them. The dynamics of Durban Westville were particularly difficult, as this Centre contained a number of hardened criminals and gangs. Vigilance and searching would be intensified, to try to prevent recurrence. It was also necessary to ensure that officials did not respond with excessive force when trying to suppress the incidents, whilst still making it clear to inmates that these incidents could not be tolerated.

Discussion
Mr M Sithebe (ANC, Member of KwaZulu Natal Provincial Legislature) said that he thought that this report should have been prepared at least a week ago. He noted that prison numbers of some of the offenders were not given in the written report, and he would regard this as violating human rights with regard to access to information. He also commented that not all Members had received copies of the presentation and this violated Section 32 of the Constitution.

Comm Tsetsane said that this incident had happened last Wednesday, and he had received the message only the previous day to say that a report was needed before this Committee. He said that all documents would be forwarded on time in future.

Mr Z Ntuli (ANC, Kwazulu Natal) was concerned by the detailing of the problems at the outset, which to him indicated some complacency; it seemed that DCS knew of the problems yet had not really addressed them fully so as to prevent such incidents. He noted that the fact of gangsterism in the Centre was known.  He asked what work was actually being done, and asked whether the Jali Commission report was being followed up. 

Comm Tsetsane said that his response, given the time restrictions of this meeting, was limited to broad issues. The recommendations of the Jali Commission had been monitored and disciplinary action was being taken against some members.

Mr Ntuli asked also about repeat offenders. If the DCS was serious about ending gangsterism, he said that surely the involvement with gangs should be detected on entry, so that a gang member should not be permitted to associate with others in the gang. This was an old trend that did not appear to be reduced as time progressed.

Comm Tsetsane said that he was not attempting to make excuses or defend what had happened. He agreed that there was a need to take on the gangs. He said that the investigations would reveal the extent to which officials were involved.

Mr Ntuli also noted that nothing had been said about the final cause of death of the inmate.

Mr A Moseki (ANC, North West) noted that part of the problem might be corruption of some officials, and he asked how rife this was, and what effective mechanisms had been put in place to prevent it and to detect corruption before it could happen.

Mr Sithebe noted that the weapons used were indicative of the fact that inmates did have access to items that could be made into dangerous weapons. He noted that in the past all detainees had been searched several times a day, and asked why this was not happening now.

Mr Moseki also asked about the weapons used. He asked whether the weapons such as gym equipment were removed and being used far away from the gym or their storage area, and whether it had not been possible to detect in advance that such items were no longer in its proper place.

Comm Tsetsane noted that most of the items were furniture and were stored close by to where the incident occurred. The DCS would investigate the fastening of the fire extinguishers, to check whether they could not be more securely fastened to the walls, yet were still able to be accessed if fire broke out. This would be part of the investigation process.

Comm Nxele added that over the past few years, DCS had made a commitment to be very open with the Committees. There may well have been some negligence in that certain of the objects used as weapons should have been better secured.

Mr W Mcoyi (ANC, KZN Provincial Legislature) asked about the terminology now being used of
Correctional Services. He particularly asked whether those put in the cells were safe there, and whether indeed a person sentenced to a period of correctional services would be returned in a "corrected" state, and as better persons. He was concerned about the large numbers of deaths.

Mr Mcoyi noted that the problem of overcrowding was huge, and that this problem had been identified at Durban Westville Centre more than a year go. He pointed out that the few officials would not be able to perform their duties properly because of the numbers. He asked whether these problems would then continue, and whether in fact only lip service was being paid to the idea of rehabilitation, or whether the inmates were merely being held. He asked whether DCS was fighting a losing battle.

Comm Nxele said that the unnatural deaths that he had tabled had happened in Medium A, where the ATDs were being housed. This incident on 17 September was in fact the first incident at Medium B. There tended to be "cycles" of disturbances. Medium B had been very quiet for some time, and it could be that one person might have been transferred and started to recruit others for a gang. Some of the offenders in the "Peace Committee" were opposed to the gangs, and would take up arms to try to squash the gangs, but cause harm in doing so.

Comm Nxele acknowledged that there was overcrowding, and that this impeded the capacity to manage correctional supervision, because the ratio of offenders to officials was skewed. The Medium B was built to accommodate about 2 000 offenders, and the numbers of personnel were assigned on that 2 000 figure, despite the fact that it was currently holding about 4 000 people because of the high crime rates. The ratio of personnel to inmates did not keep pace with the inmate population. If sufficient personnel could be allocated,  DCS would be able to respond far better.

Dr F van Heerden (FF+, Free State) asked how effective the
rewards for information system was, and whether the person giving information did not fear repercussions from other inmates

Mr Monama noted that the reward system did work, particularly when an inmate who, as part of his
gang initiation, was told to commit a certain offence, as he could then be removed from the gang and could also have time commuted to bring his eligibility for parole forward. .

Dr van Heerden noted the indication that most of the ATDs belonged to gangs, which seemed to contradict the later comment that there was little known about the gangs. He was concerned that people not belonging to gangs were incarcerated with those who did belong to gangs, and he wondered if it was possible to keep them separate.

Mr Monama noted that screening of inmates took place for the purposes of classification once the inmates were actually sentenced. However, when they were still ATDs they were merely held in holding cells and were not automatically screened. DCS thus had no opportunity to find out who may be a gangster, and whether they were dangerous, at this stage. At one stage every ATD was automatically classified as a high security inmate, but that had caused its own complications, as this required different management. The debate on the Criminal Justice System would have to address the classification.

The Chairperson was worried that officials did not seem to have knowledge of how to deal with gangs, and he asked how and why they were employed if they could not deal with the challenges. He also agreed that failure to classify offenders was of concern.

Comm Nxele said that the operation of organised crime was improving all the time, and this too would have to be considered along with the screening process and training. Some gangs had all the time to plan and think and there might still be gaps. It was not true that officials were completely unschooled and ignorant of the ways of gangs. He added that even with sentenced offenders it was not always possible to screen with certainty. There was poor information exchange between South African Police Services (SAPS), Department of Justice and DCS. If an offender came from Eastern Cape, his profile would not necessarily be known in KwaZulu Natal. This was also an area that needed to be worked on.

Dr van Heerden asked about the anticipated disciplinary measures. He asked whether the matter was handed to SAPS to investigate, if any charges had been laid, and, if so, what these were. He noted that four officials were appointed as investigators and asked what cooperation there was between SAPS and the officials. He thought that the DCS should first complete their investigation, and wondered if the exercises were supposed to run concurrently, and how they would be done.

Comm Tsetsane said that the investigation by SAPS would focus on the criminal activity of the assault, and possibly also the smuggling of items into the Centre. Further charges could also be laid. The internal investigations would enable the leadership to take further decisions to decide on whether there was negligence of any officials.

Mr S Shiceka (ANC, Gauteng) believed that as long as there still were gangs, there would never be authority in DCS, as the gangs would take over, and prevent rehabilitation. He believed that the focus of the DCS should be on eliminating the gangs, and this was something in which the Parliamentary Committees should also become involved. He believed that there was not enough certainty that a person would be punished if he joined a gang. Gangsters were essentially cowards, wishing to inflict pain on others, and being persuaded to do certain things in order to raise themselves in the gang hierarchy.

Mr Shiceka also asked why DCS did not use agents or informers, and he felt that this should be a deliberate strategy. He thought that there should be infiltration of these gangs to gather information. However, in his opinion, there was neither the political nor the administrative will to really address the problems. He felt very strongly that matters like this ought to be raised during the Criminal Justice Review.

Mr J le Roux (DA, Eastern Cape) agreed fully with Mr Shiceka that unless the gang problem was tackled, nothing would be achieved. He noted that space was a continuing problem and that new Correctional Centres were not being built fast enough. There was a need for more high-quality staff. He had great sympathy for the officials, who were not always being given the necessary support.

Mr Shiceka noted that the State had the responsibility to protect its citizens and their property. It also had to protect the life of those in the Centres, including protecting all inmates from each other. He asked if families of the deceased would be able to sue the State, and what was done when a person died when in the care of DCS.

Ms F Nyanda (ANC, Mpumalanga) said that in her view not only visitors to the prisons needed to be searched thoroughly, but this should be extended to the officials themselves.

The Chairperson added that he would also like to know what vetting was being done of the officials. He believed that some were actually in the payroll of the criminal gangs.

Mr Mcoyi asked if the officials felt intimidated by inmates. He also wondered if officials would comment that not enough infrastructure had been given to them for the housing and searching and management of inmates.

Comm Tsetsane said that there was a vetting unit now established as the National Intelligence Agency (NIA) had not been able to cope with all vetting. It hoped that this would be able to isolate those incorrect elements in the system. An Anti-Corruption Unit was also functional within the Department. Areas of risk were identified and then specific investigations were done in those areas.

Comm Nxele added that in every organisation there could be officials who were themselves wrongdoers. In Kwazulu Natal there were around 12 000 inmates in all, and a large number of officials. DCS could be seen as the "dustbin of society". Prisons held dysfunctional people, and this led to the possibility of dysfunctionality in the systems. He accepted all the points about screening and vetting. He admitted that there was room for improvement, and said that this could happen with the proper resourcing of DCS.

Mr Shiceka also asked what precisely was preventing the DCS from regularising matters. He thought that there were fundamental queries as to who should be in charge of ATDs. He believed that a policy decision must be taken on this. He also thought that statistics should be obtained across the country.

Comm Tsetsane said that he would welcome some guidance on the charge of ATDs.

A Member spoke in Zulu, translated by Mr Shiceka. He noted that he had agreed with questions put by other members, and felt that there must be rehabilitation of offenders, and that there must be further discussions with a view to finding solutions to the problems.

The Chairperson noted that the report had stated that the movement of offenders had been restricted after the incident, and he said that this created the impression that prior to that there had been a
free for all. He thought also that the plans to search after the incident might be indicative of the fact that not enough was being done on a regular basis. This Committee had noted, when making previous inspections, that officials would enter cells wearing belts and other items that could easily be taken off them. He said that he would like to hear what was being done on a regular basis.

Comm Tsetsane clarified that there was also regular searching on a normal basis, according to certain routines. However, major search and shake down and
sweep and surprise searches would be approached in a different way, and would be planned in such a way that there was an element of surprise.

Mr Monama added that mass searching was done morning and evening. Other than that, three cells per day would also be searched. A mass search would lead to disruption of normal services, but it was done when necessary.

The Chairperson thought that anther meeting should be held with the Department to talk about strategies and measures to address gangsterism.

Comm Tsetsane agreed that there was a need to engage more about what was happening in DCS. He made some general remarks in relation to the points raised. He felt that the DCS was "winning the battle" in correcting offenders, and was on course. KwaZulu Natal
s Correctional Centres had achieved many distinctions, and had made great strides, following Government's input. There were certainly pockets of challenges but he strongly believed that overall DCS was on track, and was not failing in the mandate given by Government to forge ahead with real correction, rather than mere imprisonment. There was headway in managing this within the confines of the Constitution.

He acknowledged the call to meet on the gang problem. There was a discussion document on the table and that could form the basis for engagement to see how, together, the Department and Parliament could deal with the challenges.

Comm Tsetsane further said that the Deputy Minister of Justice had given a presentation on the Criminal Justice Review System, but it was somewhat disappointing to see that still not sufficient emphasis was being placed on DCS. He was concerned that it would be left behind and said there must be representation on the task team. The executive of DCS had met with the outgoing President yesterday, and it was acknowledged that perhaps in the past not enough focus had been placed on DCS, rather being directed to other law enforcement agencies. There was far more that needed to be done in moving forward and he was grateful for the opportunities.

The Chairperson reiterated that further discussions were still needed, but there was insufficient time today. He thanked the officials for the open and honest discussions and said that another date would be arranged.

Second Hand Goods Bill (the Bill): Response by Legal Services, South African Police Services (SAPS) to the negotiating mandates.
The Chairperson noted that the provincial mandates had been presented to the Committee previously. He asked Mr Moseki to address the Committee.

 
Mr Moseki noted that North West Provincial Legislature had held four public hearings. A resolution was then taken to support the essence of the Bill, but this province also raised some concerns and suggestions. These included that Clause 4 should deal with the requirements of registration and accreditation and screening processes of new applicants. Clause 5 should specify control measures to prevent minors stealing and selling second hand goods, by putting in an age restriction. The Bill should also clarify the role of municipalities in the application process and registration of trade. All licence dealers should be rezoned to industrial and business areas, away from residential areas. Trade should be regulated to promote integrated development and training.

Mr Bertus van der Walt, Director: Legal Services, South African Police Services, said that it might help the Committee if he presented SAPS
s response to the negotiating mandates. He noted that he had a slide presentation and that his written notes were more comprehensive.

Mr van der Walt noted that the role of provincial government and provincial commissioners was raised by more than one province. The Bill did not negatively affect these roles. The structuring was actually that Clause 38 allowed for delegation of powers, so that the National Commissioner would be responsible for policies and coordination but commissioners would implement the Bill at both local and provincial levels.

The second item raised by several provinces was the holding period for goods. The Eastern Cape had recommended a 30-day holding time, whilst Gauteng recommended two to three days. During the Portfolio Committee hearings the dealers had expressed concern on the seven-day requirement, explaining that this would require them to make provision for increased floor areas, which, particularly in the case of second-hand car dealers, would mean they must hire huge premises. The longer the goods were held, the more goods would amass, and this made it difficult for the police or public to identify the goods. Seven days was the current period under the existing legislation, and SAPS believed that this allowed enough time for searches. It was also possible that some Association members could be exempted - for instance second hand vehicle dealers, if they complied with all other aspects, and could provide a good paper trail.

The last aspect raised by several provinces was the recommendation that the criteria for registration be set out in the Bill. There was already provision in Clauses 3(2), Clause 4, Clause 5 and the disqualifications in Clause 14. SAPS believed that these criteria were in line with the Constitution, and that it was not too difficult to register as a dealer. Whatever gaps might appear could be closed by the regulations, and putting the detail in the regulations would allow SAPS to keep pace with developments. It would therefore prefer to provide the detailed criteria in the Regulations.

Mr van der Walt then went through the detailed recommendations of each negotiating mandate:

Eastern Cape

The Eastern Cape mandate had made a recommendation for extension of the registration period from five to eight years. The SAPS believed that period might be too long. It was out of line with other legislation, such as the National Road Traffic Act, the Firearms Control Act and the Precious Metals Act, all of which provided for five year periods. Five years would fall in well with present systems. SAPS therefore would like to retain the five year period.

Eastern Cape had said that membership of associations should be compulsory. This point was considered during the drafting and was discussed with the State Law Adviser, who had thought that it might be unconstitutional, as it infringed on freedom of association. It might also force associations to lower their standards, thus also affecting the application of the Act.

The Eastern Cape also recommended the formation of a specialised unit of the SAPS. This was already being put in place, but SAPS would not like this to be included in the Bill, as it would prefer to allow operational leeway for restructuring where crime was a problem. At the moment Clause 34 dealt with these aspects through provincial and station structures. The recommendation was further that newly formed associations should be assisted by government. SAPS already intended to help through regulations and manuals to be developed and shared with the associations.

The Eastern Cape had also recommended that the registration certificate should be transferable as a going concern. The SAPS response was that Clauses 2(2) and 5 dealt with juristic persons, and Clause 12 dealt with transfer of a business. A business could only be transferred to a registered dealer. The certificate would not be transferred, as part of the fraud-prevention strategies. However, if there was a time delay in getting the application for the transferee approved, then the National Commissioner could give temporary registration under Clause 13.

Eastern Cape had recommended amendment of clause 15(1)(a) to the effect that the disqualification should be linked to fraud-related offences. This was already in the Clause; it seemed that when making this comment the Eastern Cape had relied on an earlier version of the Bill.

Eastern Cape also asked that the turnaround time for dealing with applications be in the Bill. However, Mr van der Walt noted that the Promotion of Administrative Justice Act already provided a remedy to deal with this aspect. In addition, the national instructions would also specify this point.

Eastern Cape had suggested that charities be exempted from the operation of the Bill. Mr van der Walt noted that it was never the intention of the Bill to regulate charities. The definition of a
dealer referred to a person who "carries on the business" of dealing in second hand goods, and this would not apply to charities in the normal course. However, recognising that charities did run charity shops, SAPS proposed a further amendment, to define a charity organisation as an organisation who received second-hand goods as donations. Furthermore, to make the position quite clear, SAPS also proposed that a new subclause (c) be inserted into the exemptions set out in Clause 42, to include any charity organisation that was exempted by the Minister by notice in the Gazette. Known and existing charities, and those who made application to the Minister, could then be excluded.

Free State
Mr van der Walt noted that Free State had recommended that the contract be explained to the buyer. He pointed out that there were provisions for consumer protection in the Consumer Protection Bill, Part D, which dealt with this matter more specifically. The National Credit Act also provided that pawnbrokers must explain contracts to people dealing with them.

The Free State also made recommendations in respect of imitation goods. Mr van der Walt said that these were dealt with under the Bill, but where there were defects with “grey products”, the Consumer Protection Bill would apply. The International Trade Administration Act applied to imports and exports.

Free State also recommended that the law be more stringent on sale of scrap metal. Mr van der Walt explained that this Bill included scrap metal dealers in its definitions, and the penalties had been increased from 12 months to 10 years imprisonment.

Free State also suggested that private security must assist with crime prevention. Mr van der Walt noted that SAPS did strive to achieve closer cooperation with such firms, and all policing would be coordinated by SAPS from a station or provincial level.

Gauteng
Gauteng had recommended that regular routine visits be done. Mr van der Walt referred to the extension of powers of the SAPS to other agencies also, which would assist because the municipal police could also help with routine visits, and he noted that there would also be inspections by inspectors from International Trade Administration Commission or other government organs. Further assistance could be obtained from associations. The focus of the regular routine visits would be determine by crime trends and pattern analysis, so that SAPS could determine whether daily or annual visits might be appropriate.

Gauteng also recommended that the Bill should cater for clearance of goods, similar to police clearance of vehicles. Mr van der Walt noted that SAPS could not cope with this administrative burden. The Bill did require each dealer to keep full records, which would assist with this problem. The National Commissioner had discretion also to impose conditions.

Gauteng recommended that “second hand” goods should rather be termed as “used goods”. Mr van der Walt noted that the rules of interpretation would mean that the ordinary meaning of “second hand” would be applied and that this terminology was accepted nationally and internationally. The use of “used goods” could in fact create confusion as in other countries this term was applied to specific circumstances relating to protection of broken goods that had been provided to a consumer. SAPS therefore recommended that the term “second hand” be retained.

Gauteng requested a definition of “pawn transaction”. SAPS agreed that this would be useful and suggested that the definition of “pawnbroker” could be amended to insert a new subclause that dealt with a pawn transaction.

Gauteng recommended that a proper education plan be done. SAPS would ensure that a proper communications plan would accompany the implementation plan, and that associations would assist in getting the message to the dealers.

In relation to suggestions by Gauteng that the Bill be translated, Mr van der Walt said that a task team was established also to translate the Bill into isiZulu, Tshivenda and Sesotho.

and he suggested that Clause 32(3) now bring this wording back in. That would address the problem when a KwaZulu Natal
KwaZulu Natal had made several valuable recommendations. The first dealt with the effect of registration, and it was pointed out that a dealer who contravened the conditions on the certificate was not stated in the Bill to be committing an offence. SAPS thus intended to recommend the amendment of Clause 32, to insert a new offence, relating to the failure to comply with the required certificate or provide the certificate. The full wording was in the document on suggested amendments (see attached document). 

KwaZulu Natal also proposed that penalties for ongoing offences be provided for. Mr van der Walt noted that the first draft of the Bill had included this, but it somehow had been excluded when the Bill was reworded, person might pay the fine, but continue to contravene the legislation. The new subclause would allow for suspension or cancellation of registration and forfeiture of the goods to the State.

KwaZulu Natal had also recommended that the Insurance industry fall under the Act. SAPS noted that the insurance industry would not normally be deemed as carrying out the business of dealing in spare car parts, and therefore would not have to register.

KwaZulu Natal proposed that photographs of vehicles must be taken. Mr van der Walt said that this would be dealt with in the recommendations. Vehicle dealers might also set this as a minimum for their members. However, as it was an operational issue, it was not appropriate to put it in the Bill itself.

Comments had also been made about the scrap dealers' certification and written-off vehicles. Mr van der Walt said that Clauses 22 to 24 already provided for identification of vehicles and did therefore deal with this issue.  Scrap dealers would have to give a certificate.

There was another recommendation to broaden the definition of valuable. However, SAPS submitted that the definition was already as broad as it could be, and this specific wording had been inserted during the National Assembly process, to make the Bill as wide as possible without being unconstitutional.

There was a recommendation that irrigation equipment be included. The Department had agreed to this, and it would be included in the Schedule.

There was a further recommendation that scrap steel should be included as a controlled metal. Mr van der Walt said that all the metals listed in Schedule 2 were non-ferrous. If scrap steel were included, this would mean that steel merchants would have to register also as recyclers and this was not the intention of the Bill. Including scrap metal in those clauses would dilute the policing of copper and aluminium metals.

KwaZulu Natal recommended that trading hours be contained in the Bill. SAPS submitted that this should be dealt with in regulations, not in the Bill. At the moment the trading hours were very fluid. Some vehicles were being driven for delivery during the night, and it would be a problem to prohibit trading during night hours. However, the Regulations could require associations to make hours for their industries.

The final KwaZulu Natal recommendation was that scrap metal dealers in copper must produce a certificate. Mr van der Walt said that they would already have to do so and the regulations would provide for the manner of transport.

Limpopo
Limpopo had recommended that the application process should be dealt with by a Department separate from that doing the policing. Mr van der Walt noted that this could create a problem if SAPS were then not able to control these matters. He added that it was not unusual to have the two functions dealt with by one Department and similar procedures already applied to SAPS in managing the Firearms and Explosives legislation. It was both possible and desirable that all processes be handled by SAPS.

Limpopo had recommended, under Clause 25(1) that controlled metals be strengthened. SAPS said that the restrictions of Chapter 6 should go far to restrict trade in copper and other non-ferrous metals, especially as the penalties were quite high.

There was a recommendation on the Memorandum of the Objects, but the State Law Adviser had recommended that this Bill did not have to be referred to the House of Traditional Leaders. SAPS took note but could not comment.

Mpumalanga

There were no specific recommendations regarding amendments but the concerns around monitoring were noted.

Northern Cape

This province had recommended that the "built-up" vehicles be dealt with. Mr van der Walt pointed out that the Bill did this already.

In regard to the structure of the Bill, Northern Cape had asked that Clause 42 be moved to the beginning of the Bill. Mr van der Walt said that the ordering of the Bill was discussed during the Portfolio Committee process, and this clause was moved from the beginning of the Bill to its current position, since it seemed to make better sense to explain the process of application and implementation first, and put the administrative clauses later.

Northern Cape made a recommendation that the word "identity" be inserted before "photograph" in Clause 4. That was supported by SAPS.

A proposal in relation to the cross referencing to Schedules 1 and 2 was also supported.

North West

North West made a suggestion in relation to the specifying of ages. SAPS believed that this was already dealt with adequately under Clause 14.

With regard to the local government involvement, Mr van der Walt said that Clause 7(4), read with Clause 41(1)(d) covered the position. It was loath to put anything further in the Bill lest this be interpreted that a person could not apply to Local Government for a permit without being registered, yet could not be registered without having a permit. A logical sequence would be addressed in the Regulations.

Western Cape
The recommendations for improvement of service delivery had been noted by SAPS.

Comments made during the deliberations
Mr van der Walt noted that certain issues had been raised during the deliberations on the Bill. Firstly, the comment was made that the Bill
s long title should reflect the aim of combating, rather than limiting, trade in stolen goods, and this would be amended.

Clause 14 would not exclude foreign nationals from participating, but it was suggested that the manager of a dealing firm should at least be a permanent resident, to allow for greater controls, and there was also to be a cross reference to Clause 39.

In regard to Clause 39, it was proposed that the National Commissioner be given the discretion to condone any requirement. This also flowed from the amendments being made in respect of foreign nationals.

In respect of second hand books and clothing, SAPS had now proposed an amendment to the Schedule, removing these items. The definition of
goods would also be amended. He noted that additional words would be added to provide any of the goods specific in Schedule 1, but does not include books, clothing, firearms or ammunition as defined in the Firearms Act"

Discussion

The Chairperson commented that this was a very clear and comprehensive comment.

Mr van Heerden asked for further clarity on the previous disqualification of foreigners, and asked whether the shareholders in a business could be foreigners. 

Mr van der Walt clarified that Clause 2(2) provided that a non-natural person could only be registered as a dealer, if a natural person was appointed to manage and be responsible for the business of the dealer. The proposed amendments to Clause 14 now stated that the manager of the business must be at least a permanent resident. Clause 14(2) stated that no company could be registered if a person who was disqualified from holding the certificate had an interest. However, this disqualification did not relate any longer to residency, so there was no residency requirement for shareholders. Clause 14(2) would now read that a company, corporation, partnership or trust may not be registered if a person
who is disqualified to hold a certificate in terms of subsections (1)(a), (b), (c), (d) or (f) was disqualified from holding a certificate. References to subclause (e) had effectively been removed.

The Chairperson asked the Eastern Cape representative to comment on the proposals of the Eastern Cape.

Mr le Roux noted that the Eastern Cape had taken the matter seriously, and had made several suggestions, but regrettably he disagreed with most of them, including their comments on the holding period. 

The Chairperson indicated that Mr le Roux had been given a certain mandate, and although he accepted that Mr le Roux had his own views, he could not depart from the mandate.

Mr Shiceka said that Mr le Roux should have made his own views clear at the time of speaking to his Province. He did not think that the fact that the Province had dealt in detail with so many items necessarily bound the Committee to agree with them. Their points about the charities and the need for amendments had been well made. He proposed that the Chairperson should advise the Eastern Cape of this Committee
s views, so that the Eastern Cape legislature could understand the comments of SAPS and understand why this Committee disagreed with some of the Eastern Cape proposals.

Mr Ntuli seconded this view, and suggested that the legislature should be asked if, given the comments of SAPS, it was still persisting in its views. 

Mr Mcoyi asked whether charities should not be asked to apply for a special permit to sell goods.

The Chairperson felt that they should not be required to have any further permits, as their work for the poor should be facilitated wherever possible.

Mr Ntuli agreed; these charities were not involved in the business of selling but would be selling for the specific purpose of being able to continue their charity work.

Mr van der Walt noted that Clause 42 provided that the Act would not apply to certain instances. SAPS had proposed that a new (c) be inserted to exclude charities who were listed in the Government Gazette from the provisions of the Act. A definition of charity would be included, to define it as a voluntary organisation, established for charitable purposes (which could include education and religious organisations) that carried on a business in dealing in second hand goods (for instance the charity shops), where the goods were acquired by way of donation. They would not be exempted if they bought goods for resale.

Mr Mcoyi asked for some further explanation on the comments about the pawn transaction

Mr van der Walt said that no definition was included for a pawn transaction It was proposed that the definition of a pawnbroker be amended to specify that a pawnbroker would conduct a pawn transaction.

The Chairperson asked for further comment on the transfer of the registration certificate. The argument put forward was that a family member who ran the business might die, and it was necessary for family members to continue with the business.

Mr van der Walt said that Clause 12 stated that a certificate could not be transferred, and a registered dealer could transfer the business only to another registered dealer. If a dealer died or was incapable of managing the business, as set out in subclause (4), then his executor could manage the business until its transfer to another registered dealer. This would allow for continuity of the business until the new owner could be registered as a dealer.

Mr D Worth (DA, Free State) noted that his legislature had made five points. He agreed with SAPS
s responses, but suggested that his legislature should be specifically advised of these responses.

Dr van Heerden said he had nothing more to add. He agreed also with SAPS. He noted that Clause 39 also provided for the possibility of extension of an expired certificate, which would also cater for the needs of family members.

The Chairperson noted that he was happy with the response on the strict law enforcement measures and the increased sentencing.

The Chairperson asked for comments on the Gauteng concerns.

Mr Shiceka reiterated that the alteration of terminology with "used goods" rather than "second hand goods" should be examined again. There was no reason why words used in the past should necessarily continue to be used; language used now should be relevant to current users.

Mr M Mzizi (IFP, Gauteng) said that the term "used" rather than "second hand" was applied to cars. He agreed however with the definition under the National Credit Act.

The Chairperson noted that the term "pre-owned" could also be used.

Mr Ntuli suggested that SAPS's suggestions to retain
second hand be accepted. The term "used" could also imply that something was discarded.

Mr Mcoyi emphasised that "second hand" was a commercially-accepted term. "Used" would need to be clarified with further comment about the previous owners, if any.

Mr Moseki suggested that for the moment
second hand be retained but in the long term the wording could be looked at again.

Mr Shiceka said that Gauteng would be prepared to accede to using the phrase "second hand".

Mr Sithebe noted that the only outstanding matter for KwaZulu Natal was the recommendation to consider the role and responsibility of the insurance industry, which allowed for sale of car parts to second hand dealers.

Mr van der Walt responded that page 10 of the detailed notes dealt with the role of the insurance industry. The insurance industry would not need to be registered because it did not primarily deal with second hand goods. When selling second hand parts or built-up vehicles to dealers, those dealers would have to account for the goods, so there would be an audit trail.

Ms Nyanda said that Mpumalanga would accept the information given by SAPS.

Mr van der Walt said that the monitoring proposals were accepted. These would find their way into the Regulations, where the implementation and monitoring would be set out.

Mr F van der Merwe, (DA, Northern Cape) said that he would accept the recommendations of the SAPS, and supported the Bill.

Mr Moseki indicated, on behalf of North West, that he was now happy with the SAPS report. He would report back to his Province, but agreed with the essence of the Bill.

In respect of the Western Cape, the Chairperson noted that Mr Mack was busy with another engagement. The only proposal had been in respect of information to go in the Regulations. He thought that their concerns had been covered.

Mr Mcoyi was concerned that the wording in relation to foreigners might give rise to fronting.

Mr van der Walt said that the problem of fronting existed across the board, and not only with foreigners. There were presentations to the Portfolio Committee from people who had interests in companies in South Africa. SAPS accepted their concerns but was prepared to compromise that at least the manager of the business must be a permanent resident, so that information was available. If the requirements were not met, the National Commissioner could refuse the registration, or impose certain conditions. Where there were suspicions of fronting, the person managing and owning the business would be made responsible.

Mr Mcoyi felt that the Bill should lessen the fronting rather than assisting it, and perhaps the conditions should be made more clear.

The Chairperson said that this proposal should be reconsidered when the final mandates were given. There had been some substantial debate on the issue of foreigners and the fact that they should not be forced to join an association.

Dr van Heerden said that other legislation catered for fronting, both directly and indirectly, and he did not think it was the place of this Bill to deal with that.

The Chairperson asked the Committee Secretary to send SAPS
s comments to the provinces. The Committee would consider the Bill again after the recess. Its next meeting would be held on 7 October.

The meeting was adjourned.

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