Criminal Procedure Amendment Bill [B42-2008]: Department response to public submissions; Audiovisual Remand Project, Presidential Pardons, Expungement of Records

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Justice and Correctional Services

22 September 2008
Chairperson: Mr J Jeffreys (ANC)
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Meeting Summary

The Committee was briefed on the Audio Visual Remands Pilot Project and its envisaged national rollout. The rise in case backlogs and the recent spate of escapes from court holding cells had prompted the Department to look at other avenues in addressing these blockages. After much debate and consultation with various stakeholders, it was decided that the Department would pilot the Audio Visual Remands Project in Kwazulu Natal in October 2005. This entailed an accused person appearing via audiovisual link before a magistrate or judge at a Correctional Facility. The pilot project had paid dividends in terms of reduction in time management, security concerns, caseloads as well as transportation costs.

The presentation covered the project’s background, a study of its impact and benefits and the way forward. The AVRPP aimed to deal with routine remands without the awaiting trial detainee having to leave the correctional center. This utilized technology in the form of an audio-visual link between the prison and the court. Also discussed were presidential pardons and expungement of records.

The Department and the South African Police Service provided a response to the public submissions on the Criminal Procedure Amendment Bill. Sections 159A, B, C and D of the South African Law Commission’s Draft Bill would be inserted into the Criminal Procedure Act. Clause 159A dealt with the remands in criminal proceedings via audiovisual link and the type of cases for which it would be utilized. Clause 159B was the provision that permitted access to the general public at the remote point of entry. Clause 159C dealt with the technical requirements for the use of the audio link whereas Clause 159D protected the communication between the awaiting trial detainee and the legal representative. In addition, Section 271A would be amended as the wording was considered to be weak.

Members were generally satisfied with the amendments, but raised questions about the privacy of communication between attorney and client during the AVR process as well as the public’s access to the court proceedings. On the matter of expungement of criminal records of those sentenced to six months or less with the option of a fine, it was decided that Members should consult with their political parties, as it should not appear that Parliament had gone soft on criminals and everything possible had to be done to ensure that the public was protected.

Meeting report

Audiovisual Remand Pilot Project (AVRPP): Department of Justice (DoJ) briefing
Mr Lawrence Basset, Chief Director: Legal Services, DoJ, introduced the team from the DoJ and the SAPS that would address the Committee on the Criminal Procedures Amendment Bill.

Mr Mahomed Dawood, Director: Court Services, DoJ, briefed the Committee on the Audi Visual Remands Pilot Project (AVRPP) that had been implemented in Kwazulu Natal in October 2005 and on the way forward for its envisaged national roll-out.

The presentation covered three areas: the project’s background, the impact study and benefits and the way forward. The AVRPP aimed deal with routine remands without the awaiting trial detainee having to leave the correctional center. This utilized technology in the form of an audio-visual link between the prison and the court.

This pilot project was administered through a high quality audiovisual link between two cubicles/remote points at the Medium A Correctional Center at Durban Westville and courtrooms at Durban and Pinetown magistrates’ courts. The facilities were used to deal with routine remands. This was a progressive step, as the awaiting trial detainee (ATD) did not have to leave the Correctional Center.

For information on the Audiovisual Remand Infrastructure, see document.

The impact study that had been conducted on the AVRPP system concluded that the benefits generated from this system included reductions in transportation and costs, security risks in the court environment, administration at holding cells and a shortened overall time frame to conduct remands. To date 6 415 ATDs had appeared before the Courts through this manner.

The success of the AVRPP pilot project had culminated in a decision by the DoJ to expand it nationally. A workload analysis had been conducted that determined the most appropriate courts and Correctional Centers that had the capacity and infrastructure to support the implementation of the concept. A total of 47 courts with 36 aligned Correctional Centers had been identified for deployment after intensive consultation with key stakeholders. The DoJ indicated that the approval of the Criminal Procedure Amendment Bill was needed as well as the refurbishment of the facilities especially at Correctional Centers to bring these in line with specifications to utilise optimally the concept.

Discussion
Adv L Joubert (DA) asked whether the prisons had the capacity and infrastructure to adequately support AVRPP and whether the set-up as illustrated in the document would be mirrored.

Mr Dawood replied that the illustration contained in the presentation would be mirrored and the identified Correctional Centers would be capacitated, where necessary.

Mr J Sibanyoni (ANC) said that the Commission on Gender Equality (CGE) submission had indicated that the AVRPP could possibly violate attorney-client privilege. In light of this, an assurance had to be given that this would not happen.

Mr J Jeffreys (ANC) asked whether the DoJ had reviewed the submission by the CGE on the matter.

Mr Dawood replied that the Bill addressed the concerns raised by the CGE.

Mr Jeffreys asked whether this had worked in practice during the pilot phase.

Mr Dawood replied that as soon as the remand was valid, the clerk would fax the document through where it would be received simultaneously by the correctional officer. The remand warrant would then be handed over to the SAPS officer escorting the ADT.

Mr Jeffreys noted that Mr Dawood misunderstood the question posed by Mr Sibanyoni as it dealt with the privacy of communications, and not remand warrants.

Mr Dawood said there was an enclosed telephone booth installed in courts that would not compromise attorney-client privilege in any way.

Mr T Delport (DA) said that Members had to make sure that a new clause was inserted that provided for an objection by legal representatives if they felt that attorney-client privilege had been violated. The case would then be remanded to the court

Ms Kalayvani Pillay, Principal State Law Advisor, DoJ, said that the provision was to deal with postponements and that if a legal representative wanted to consult with the client, then it had to be in person as normal consultation processes were not applicable.

Ms Memme Sejosengwe, Chief Director: Court Services, DoJ, said that when the project was piloted it was limited to postponements after extensive consultation with stakeholders on what the procedures would entail. 

Mr Basset replied that Clause 159C contained specific regulations that dealt with communications.

Mr Jeffreys noted that the Committee wanted a full and factual assessment of the project and that no real indication had been given of its success.

Mr Dawood replied that the pilot project had been a major success as indicated by the impact study and that the only real challenge was due to lower grade equipment. During the national rollout, the DoJ‘s communication lines would be used.

Ms Sejosengwe replied that the low scale equipment used had impacted on the communication line. It was envisaged that equipment would be upgraded as well as the refurbishment of prisons.

Mr Jeffreys asked what would happen if there was any electrical down time or load shedding.

Ms Sejosengwe said that if the down time took too long then the case would be remanded in the actual court itself and that load shedding had not yet had any effect.

Mr Jeffreys said that the South African Law Reform Commission had raised some concerns with the public’s access to remote points in prisons and the constitutionality of the provision.

Ms Sesosengwe replied that the intention was never to convert prisons into courts. Access by the public was still granted through the audio-visual link at court.

Ms Gillian Nesbitt (Committee researcher) said that the family of the ADT should be allowed to see the physical appearance of the ADT, as the ADT was not in a conventional court set-up.

Ms Pillay noted that upon agreement with internal stakeholders, it was thought wise not to make the correctional centre facility open for public attendance due to security concerns. The presiding officer would be able to focus the camera on any area in the room as well as on the full image of the person.

She added that the intention behind remote point access had been to address issues of jurisdiction as the DoJ envisaged that the correctional facility may fall outside the jurisdiction of the court as seen in Durban where cases from Pinetown had been remanded in magistrates courts.

DoJ Response to Submissions on Criminal Procedure Amendment Bill
Ms Pillay read out the Department’s response to comments made by the Civil Society Prison Reform Initiative (CSPRI) and the Parliamentary Research Unit.

CSPRI welcomed the provisions in general, but raised concerns around whether the accused person’s face and whole body would be visible.

The DoJ replied that the technology provided for the remote zooming function that was controlled from the court and that the magistrate was in a position to focus the camera on the whole person to ascertain the physical condition of the accused.

The Parliamentary Research Unit (PRU) asked whether the proceedings would be open to the public as “appropriate persons” had be been defined as persons that were entitled to be present.

Ms Pillay said that the DoJ had indicated that members of the public who were entitled to be present should not be interpreted in a restrictive manner as there were limitations, based on security concerns and that any member of the public would ordinarily be entitled to be present in court was an “appropriate person”.

The PRU asked whether the accused persons would be given a choice between an audiovisual link court appearance and the ordinary remand system.

The DoJ indicated that an accused would not be given a choice as the purpose of the legislation had been to alleviate the burden on the court rolls and to effect savings in the budgets of the Department of Correctional Services, the SAPS and the DoJ.

The PRU requested details of the project implementation plans and time frames as well as a cost-benefit analysis of the project.

Ms Pillay said that the Integrated Justice System (IJS) budget had set aside R40 million for this project which would cover the supply, deployment, installation and maintenance of the Audio Visual Remand (AVR) systems, network/communication infrastructure, as well as renovations to identified sites in preparation for the installation of the system. It was noted that the analysis conducted through the impact study in 2006 had concluded that after the initial six-month pilot phase, an amount of R59 159 was saved on a monthly basis. (For further information on comments and responses, see response document).       

Presidential Pardons and Expunged Records (Clause 2): briefing
Mr Neville Gawula, Director: Policy Research, Coordination and Monitoring, DoJ, briefed the Committee on presidential pardons and expunged records. He noted that the power to grant pardons was vested in the Presidency. The first step in obtaining a presidential pardon was to submit an application that detailed a disclosure of personal circumstances, reason why the pardon should be granted and whether it would be in the public interest to grant the pardon. There was a prescribed form that was easily accessible. This form had to be accompanied by a set of fingerprints that would be analysed to ascertain whether the applicant had any previous convictions as well as the date of the offence.

A period of ten years in prison should have elapsed before submission of an application. Thereafter, the DoJ would prepare a letter to the President to inform the President of the request for a pardon. Various factors would be taken into account, including: the age of the inmate at the time of the offence, the nature and seriousness of the offence, the sentence imposed, personal circumstances and whether it would be in the public interest to pardon the person.

He added that as of late, the DoJ had received numerous applications for pardons in part due to the harsher sentences that judges and magistrates had started to impose as a result of the crime wave that was sweeping the country. This had impacted on whether a pardon would be granted as the President had granted 931 pardons before 2004, with a considerable drop afterwards.

Discussion
Mr Jeffreys noted that pardons would only be granted to those individuals that had been convicted of an offence with the option of the fine. He asked whether a pardon would be granted to a person that had received a six-month conviction without the option of a fine.

Mr Gawula replied that in the past pardons would mostly be granted to people who had been convicted of theft, possession of illegal narcotics or offences that related to assault.

Mr Jeffreys asked whether pardons would ordinarily be granted to those individuals that been convicted of serious crimes such as rape and murder.

Mr Gawula noted that the DoJ did not have a prescribed criteria of which crimes was eligible for a pardon as every case was based on its own merits. The DoJ would only motivate a pardon once it established that all requirements had been met and that there had been instances where rapists and murderers had applied for a pardon.

Mr Jeffreys noted that he had a problem with automatic expungement as there were a lot of issues that had still not been addressed in this regard.

Mr Delport noted that there was a difference between a pardon and expungement as pardons could only be granted to someone that was in prison whereas the latter could not be granted to prisoners.

Mr Basset said that when legislation was developed, the DoJ had decided that the benchmark for an expunged record would be a conviction of 6 months or less with an option of a fine. An assessment had indicated that the average sentence was 6 months with the option of a fine for less serious crimes.

Mr Delport said that he supported the provision, as those people that had been convicted of a lesser charge should not have to carry the burden for the rest of their lives. If a person was convicted for not paying traffic fines, then it should not be a hurdle for that person obtaining employment as a financial advisor as there was no connection between the offence and the career path.

Mr Jeffreys noted that an imposed sentence as well as a criminal record should serve as a deterrent measure as the public had to be protected, especially during the current crime wave in South Africa and that it might be time a establish a record that could detail the crimes of people. This could especially be helpful during the application processes for either an expungement or a pardon. It was also necessary for the DoJ to ensure that no sexual predators that had been registered on the Sexual Offences Register as well as murders was granted the right to have their records expunged.

Mr Gawula noted that he agreed with Mr Delport on the adverse affects a criminal record might have in obtaining employment and that a relationship had to be drawn in terms of the offence and its impact. If a person was convicted for drunken driving, then surely the person could not apply for a driver position.

Mr Jeffreys asked what type of offences had routinely been expunged.

Mr Gawula replied that there were about ten categories of sentencing that carried a six-months sentence with the option of a fine. During the pre-1994 era an assault crime would get correctional supervision whereas the possession of an illegal substance would have an imposed sentence of two years.

Mr Jeffreys noted that the ANC had not yet discussed Clause 2 in its study group as it contained major socio-political ramifications for the country and that it should not appear as if the ANC was not being tough on crime.

He asked why the DoJ was being so nice to criminals and urged Members to consult with their respective political party caucuses as the possibility of child rapists having their records expunged should not be taken lightly. It was important for the Minister of Justice to engage more widely and to look at international best practice before a final decision was made.

Mr Basset noted that if a sexual offender received a sentence of 6 months or less with the option of a fine then that person's record could technically be expunged as provided for in the provision. However, if it were longer than six months, then it would not be expunged.

Mr Jeffreys stated that more debate was necessary on the issue, as he felt uncomfortable with sexual predators having their records expunged through this provision.

Mr Jeffreys asked whether the DoJ had engaged civil society and the general public at large on Clause 2.

Mr Gawula replied that the DoJ had not consulted civil society nor had it consulted the general public.

Mr Jeffreys noted that had the DoJ had consulted civil society then they would have identified the pitfalls at an earlier stage. He said that the DoJ had to engage with civil society on this matter.

Criminal Record Centre (CRC) on Automatic Expungement
Superintendent L A Mangale briefed the Committee on the Center’s function and capacity to deal with pardons and automatic expungement of criminal records. He said that the CRC facilitated the storage of records as well as the deletion of records upon the receipt of an application by the DoJ to do so. The CRC would provide a P69 and compile a report that would then be forwarded to the DoJ. As soon as a pardon or an expungement had been granted, then the record would be removed from the main library. Currently, all electronic records had been deleted, but copies were still kept in the National Archives due to the Moratorium on the destruction of records.

The CRC did face a challenge with automatic expungement as not all old records had yet been captured onto the system. It would also be difficult for the CRC to have records expunged automatically as the current criminal record database provided for the manual deletion of records only

Mr Gawula noted that it was not impossible to develop a programme that could deal with automatic expungement.

Superintendent Almarie Wepenaar, CRC: SAPS, explained that currently the manual deletion of records was quite a lengthy and complex process as the system was not that advanced.

Mr Gawula said that it might be necessary to establish a register for minor offences, as the register would pick up on the record of an applicant, almost immediately.

Superintendent Wepenaar said that the CRC would be able to generate the requested profile, but that it would result in a complex and lengthy process as in most cases the record would be in the form of a profile of an individual and that might lead to other convictions being deleted. 

Mr Gawula asked whether the CRC could not utilise the database used by National Credit Regulator (NCR) as contained in the National Credit Act.

Mr Jeffreys asked whether the SAPS had read through the Bill as it allowed for both manual and automatic expungement, but that it had to consult with stakeholders on the automatic expungement of apartheid convictions as these individuals did not have to apply for an expunged record.

Superintendent Mangale said that the SAPS would be able to deal with manual expungement of records but that it would face a challenge where automatic expungement was concerned, as it had to get a notification that called for an expungement.

Mr Basset said that the SAPS had indicated that it would be practically impossible to expunge apartheid crimes automatically.

Superintendent Mangale added that the CRC would be able to do it automatically, provided that it was offence-based and not sentenced-based.

Mr S Makabeni, State Law Advisor, said that SAPS had to ensure that the copies of criminal records that were kept by the National Archives should also be destroyed.

Mr Basset replied that this query would receive attention.

Proposed Amendments to the Criminal Procedure Amendment Bill
Ms Theresa Ross, Senior Law Advisor: DOJ, and Mr Bassett rend through the DoJ proposed amendments (no document is available at this stage) and the following comments were made:

Clause 1 amending Section 159A
Ms Pillay commented that she hoped the envisaged amendment would be passed as soon as possible. She noted that all the references to “audio link” would be substituted with “audiovisual”

Ms Nesbitt noted that all references to “he/she” should be substituted with “the person”.

Mr Jeffreys asked whether the DoJ had reviewed the issue of appeals that had been raised by civil society.

Mr Basset noted that a new submission that spoke to the issue had been received by the DoJ and reviewed.

Ms Nesbitt stated that the South African Law Reform Commission indicated that it would be introduced incrementally, but that this view had been objected to.

Ms Pillay replied that the provision that allowed for appeals to be heard in chambers had been found to be unconstitutional.

Mr Basset added that the DoJ would clarify the uncertainty around this soon.

Clause 1 amending Section 159B
Ms Pillay noted that there had been a suggestion that if there were technical glitches then a person must be brought to a normal court.

Mr Jeffreys stated that the DoJ had to be careful with this provision as there were a lot of other factors such as time that had to be taken into consideration as well as the concerns raised that relatives might not be able to see the full image of the accused.

Mr Basset said that the DoJ had taken note of the concerns raised, but that it was unfounded as the presiding officer had to focus on the whole image of the accused in any case.

Clause 1 amending Section 159C
Ms Pillay explained that this section dealt with the technical requirements for usage of an audiovisual link.

Clause 1 amending Section 159D
Mr Jeffreys asked whether Section 159D should not include a reference that covered all mediums of communication, instead of the mediums listed in the clause.

Ms Pillay noted that the mediums of communication referred to in the clause related to the issue of remand, hence the omission of the other mediums.

Mr Delport said that communication between attorney and client would be covered by attorney-client privilege in any event.

Mr Basset replied that the DoJ would liaise with the Department of Communications on this matter and proposed that any communications under normal circumstances should be protected.

Mr Jeffreys asked whether the audiovisual link would also be used for other cases that did not include remand.

Ms Basset replied that the DoJ had decided to start off with the AVRPP and that it might be extended to other cases.

Clause 2 amending Section 271(a)
Mr Basset said that Section 271A(1)(a) would be rewritten, as the wording was too plain.

Mr Basset noted that Section 271A (2)(j) should be deleted and made subject to the Child Justice Bill as it already covered the issue of expunged records of minors. This Bill would aim to cover those provisions that pertained to adults only. It was proposed that Section 271A (2)(g) also be omitted from the Bill, as it did not take the possibility of an early release on parole or correctional supervision into account. This would be addressed through the insertion of a paragraph that outlined the possibility of an earlier release and not on the sentence that initially had been imposed by the courts. The word “contemplated” would be omitted from the whole clause and be substituted with “refer to”.

Mr Jeffreys noted that if Section 271A(2)(j) was deleted then it would be subject to an Act that had not yet been passed and that this might adversely affect juveniles. He added that Section 271A(2)(d) was also a problem as corporal punishment had been imposed for quite serious crimes such as rapes and murders and that the DoJ had to ensure that rapists and murderers did not qualify for expungement under this provision.

Mr Basset said that the DoJ would look at the wording.

Mr Gawula added that the DoJ had received a number of applications where corporal punishment had been imposed and that the rule was that no distinction would be made between whether it had been imposed for a lesser or a more serious offence. The DoJ considered the fact that the sentence of corporal punishment had been imposed as the primary indication of punishment and not the crime itself, that led to the sentence.

The words “and sentence” in Section 271A(2), (3) and (4) had been omitted from the bill.

The word “a” would be inserted at the end of Section 271A(4) as to read ‘such a person”.

Mr Jeffreys asked what the routine was for existing pardons and what would happen if a person had been convicted of a subsequent offence that was not the same as the one that an application had been received for.

Mr Gawula said that the provision entailed a blanket option for expungement and that a lot of applications had been received where corporal punishment had been imposed for serious and minor offences. The DoJ had decided that despite the severity of the crime, the sentence imposed would serve as the benchmark.

Mr Jeffreys asked whether a person's record would be expunged if that person had committed a second serious crime.

Mr Gawula replied that the practice for an expunged record had been for the decision to come into effect after the date of the last conviction and thus it did not matter how many convictions the person had, provided that the request was granted.

Mr Jeffreys proposed that a new clause be inserted that dealt specifically with expungements as it might lead to a difference in interpretation.

Ms Ross proposed that the provision should specify that those who had been convicted of a second serious crime should not be granted an expungement.

Mr Basset added that it was important to take the issue raised by Mr Jeffreys as a scenario might arise where a person had applied for expungement, but had a serious case pending.

Mr Gawula said that this would negate the principle of innocent until proven guilty, as the charge might not manifest in a conviction.

Mr Jeffreys proposed that the DoJ should drop the five years provision, provided that it was aligned with the Constitution. He added that it would also be prudent to leave sub-clause 1 and 2 as is until the political parties had consulted their caucuses

Mr Gawula said that he had a problem with individual requests that had to be furnished to the Office of the Director-General as it might lead to congestion and confusion.

Mr Jeffreys noted that it would be more appropriate if the CRC dealt with these issues as they had all the details and could verify the authenticity of the applications.

Clause 3 amending Section 271B
Ms Ross noted that the names of the listed offences in Section 271B(1) would be changed, as they were different from the short titles that appeared in the statutes books that had emanated from the Apartheid regime.

Section 271B(1)(a), (d), (e), (g), (h), (j) and (k) would stay the same, whereas “Bantu” would be substituted with “Black” in Section 271B(1)(b) and (c). The “Suppression of Communism Act” would be substituted with the “Internal Security Act” in 271B(1)(f), the “Immorality Act” with the “Sexual Offences Act in 271B(1)(i) as well as the omission of the “Political Interference Act” in 271B(1)(l).

The first “contemplated” in
271B(2)(b) would be substituted with “refer to” and the second “contemplated” would be substituted with “provided for”.

Mr Gawula noted that there had also been other common law crimes that had been defined as political crimes and that the difficulty had been that there was no singular international definition of what constituted a political crime.

Mr Jeffreys asked why the DoJ had changed the names of the Acts.

Ms Ross replied that the names contained in the briefing document had been instituted after amendments to the names of the Acts in the mid Eighties and that it appeared in the statutes books under those names.

Mr Basset added that the names of the acts and short titles had been those when they were introduced in Parliament. It was thus suggested that it would be correct to refer to the repealed legislation.

Mr Delport noted that between 1991 and 1992, a committee chaired by Mr Hernus Kriel worked on a piece of legislation that repealed a whole host of Apartheid legislation. He suggested that the Committee review the report to find some assistance.

Mr Jeffreys asked Ms Ross how comprehensive the list was and whether the ‘Pass Laws’ had been included.  

Ms Ross said that she had conducted a search through the library books and that the offences that were also listed had been compared with a computer search.

In relation to the Pass Laws, Ms Ross noted that the Influx Control Act covered the Pass Laws, but that she would check again just to be sure.

Mr Jeffreys asked why the Bill referred to the DoJ&CD as “Justice” in the Bill.

Ms Ross replied that for the sake of uniformity and consistency, the “Department of Justice and Constitutional Development” would substitute “Justice”.

Section 271C
Ms Ross noted that all the references made to “contemplated” would be substituted with “provided for”.

The word “Centre” would also be omitted from the Bill and that the official name of the Criminal Record Centre would be used.

The word “any” would be substituted with “the” and “such” would be omitted from the Bill.

Committee members said that the DoJ had to ensure that Section 271C(3) should provide proper clarity on who would be considered liable when a record had been expunged maliciously or by accident. It was proposed that “or” be substituted with “and” so that a distinction could be made between when a record had been deleted by mistake or when it was deleted deliberately or unlawfully.

Meeting adjourned.

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