Criminal Procedure Amendment Bill & Judicial Matters Amendment Bill: Departmental briefings & deliberations

Meeting report

Criminal Procedure Amendment Bill B42-2008: Department of Justice (DOJ) briefing
Mr Lawrence Bassett, Chief Director, Legislative Drafting, Department of Justice, tabled proposed new wording in respect of the Criminal Procedure Amendment Bill, and explained that the words or paragraphs that had been double-underlined were new insertions to the Bill, and those that contained a strike-through were to be deleted.

As a general comment, he said that all references to ‘contemplated” and “such’ had been omitted from the Bill.

Long title
Mr Bassett noted that the words “to further regulate the falling away of certain convictions as previous convictions after the expiry of a fixed period” had been inserted.

New Section 159A

Mr Bassett noted that the Committee had indicated that “audio link” and audiovisual link” required separate definitions as they dealt with separate issues. This had necessitated changes to the proposed new Section 159A(1)(b) and (c), and a renumbering of the following definitions.

Grammatical changes had also been made to sub-section (3).

New Section 159B

Mr Bassett stated that “the person” in the proposed new Section 159(B)(2) had been substituted with “that person” and reiterated that all references to “contemplated” had been deleted from the Bill and substituted with either “referred to or provided for” in the entire Bill.

A new sub-section (4) had also been added, which made it mandatory for the audiovisual camera to capture the whole image of the accused, as some civic organizations had indicated that there was a need to show whether the accused could be injured or not being properly attended to.

Mr Bassett indicated that the Department of Justice (DoJ) had not been sure whether to use the word  “used” or “focussed” in this new sub-section and asked for direction from the Committee.

Mr J Jeffery (ANC) noted that one and not both of these terms must be used. He suggested that “used” was more appropriate and more broad than “focusing”. He also proposed that the word “may” be inserted instead of “must” in the first sentence.

The Committee accepted these suggestions.

New Section 159 C
Mr Bassett noted that a new sub-clause 2 (a) had been inserted, dealing with the interruption or poor quality of a video link. He noted that idea had been to get the person to court on the day of the remand, as the Court Order for the accused to appear in court expired on that day, and if it was not possible then the matter had to be postponed.

New Section  271A
Mr Bassett noted that a new Section 271B would be inserted in the principal Act, after Clause 271A. The existing 271B would then be renumbered as 271C, and the 271C would become 271D. A new Section 271E had also been inserted.

Mr Bassett indicated that the DoJ had drafted an alternative draft clause to the original Clause 271A as that clause had been difficult to understand. He asked for guidance on the proposal.

Mr Jeffery noted that the proposed new alternative clause did not change the concept of what the clause entailed, and that it seemed to encapsulate a more minimalist approach. He added that the concerns of the Committee had been around the sentence of six months without the option of a fine, and asked whether it would not be important to look at minor offences as the determining factor for an expunged record.

Mr Bassett noted that the provision of six months without the option of a fine provided administrative guidance, and that it looked at a much broader context.

Mr S Swart (ACDP) said that the ACDP would support that view, as it was important to prevent individuals who might have committed serious crimes yet a received a sentence of six months without the option of a fine from having their records expunged. The ACDP believed that only individuals who had been convicted of petty crimes should have their records expunged.

Mr Jeffery noted that the new Section 271A did allow individuals to have their records expunged even if they did have a subsequent conviction, and that it would be best to retain the existing wording as it seemed that some people’s rights might be infringed upon in the new draft.

Mr Neville Gawula, Director: Policy Research, Coordination and Monitoring, DoJ, noted that there had been cases where applicants had brought applications for expungement of records where the required ten years had not yet elapsed. He cautioned against interference from the Executive and proposed that the line should be drawn at six months without the option of a fine.

New Section 271B
Mr Bassett noted that some of the terminology in the original draft of Clause 271 B had been changed after Ms Theresa Ross, Senior State Law Advisor, DoJ, had engaged with the Criminal Record Centre on the wording. The word “such” before “the person” in line 7 of sub-section 271B(1)(a) should be deleted.

Mr Swart noted that Clause 271B(1) (a)(v) was very vague as it could be interpreted as meaning that even rapists and other serious offenders could qualify for expungement of their record.

Ms Johnson asked which type of offences generally received a six months sentence with the option of a fine.

Mr Gawula replied that offences such as marijuana possession and stock theft generally received a sentence of six months with the option of a fine.

Ms Johnson asked whether there had been any specific reason why the Bill was sentence-based and not offence-based, as it seemed that the latter would have been much easier to implement.

Mr Jeffery replied that a change to offence-based wording would influence the whole Bill.

Dr T Delport (DA) noted that he was happy with the provisions as they stood.

Mr Jeffery noted that Clause 271B(1) (a)(v) had been an attempt to tighten up the Bill and that it meant that the offences listed from (i) to (iv) qualified for expungement of the record.

Mr Swart proposed that Clause 271B(1) (a) (v) and (vi) should be retained, as these was in the principal Act.

Mr Bassett noted that the former sub-paragraph (f) could have referred to a sentence suspended for six months and that the intention at the time of sentencing was that the court wanted the person to be incarcerated for the full twelve months.

Mr Jeffery proposed that (v) and (vi) be retained without the deletions proposed in the new document tabled that morning, and that the deletions that pertained to the old (e), (f) and (g) should be retained.

Mr Bassett stated that the provisions enshrined in Clause 271 B could be problematic as the Child Justice Bill would only come into effect in 2010. The new sub-section 271B (1)(b) addressed the issue of the National Register for Sexual Offenders.

Mr Jeffery proposed that Clause 271B(1)(viii) that dealt with minor children in conflict with the law be deleted, as the Child Justice Bill already dealt with the issue of expungement in respect of the offences committed by minors.

The Committee supported this proposal.

Mr Jeffery asked whether the proposed Section 271B (3) that pertained to the Ministerial discretion was really necessary.

Ms Johnson suggested that the proposed 271B(3) be scrapped as it might lead to Executive influence over the judiciary.

Mr Swart stated that Clause 271B (3) might also lead to a situation where the Ministry of Justice and Constitutional Development could be flooded by applications for an expungement of records.

Mr Jeffery noted that the rationale behind Clause 271B (3) had been to prevent the Office of the Presidency from having to deal with requests for expungement of records in respect of mundane crimes such as shoplifting. He added that it would be best if the Director-General of Justice and Constitutional Development be tasked with reviewing applications.

Mr Gawula stated that when the Minister reviewed applications for expungement, factors such as age, the seriousness of the crime, the age of the applicant at the time of the offence, the period lapsed and the interest of the society at large were taken into account.

Mr Jeffery asked which types of crimes generally received a fine of R50 000.

Mr Gawula replied that economic crimes such as fraud and corruption generally received a fine of R50 000.

Mr Bassett added that fines also included admission of guilt fines.

Mr Jeffery noted that the Committee could look at the possibility of reducing the R50 000 limit.

New Section 271C
Mr Bassett noted that the titles of the Acts in the new Section 271C(b), (g) and (h) had been substituted with the correct names of these Acts before their amendment or renaming.

Mr Jeffery  instructed Ms Ross to make sure that Clause 271B (h), which dealt with the pass laws, was accurate as many people had been convicted for pass laws violations prior to 1952 as well as after that date.

Ms Ross indicated that she would consult with other relevant stakeholders and report back to the Committee at the next meeting.

Mr Bassett noted that a new sub-section 2(a) had been inserted in the Bill, which adequately addressed other crimes that had been committed under other Apartheid statutes and in the former Bantustans.

Mr Swart said that he was surprised that Parliament only dealt with this issue fourteen years after the advent of democracy.

Mr Jeffery noted that the only other avenue for an “expunged record” was through the Truth and Reconciliation Commission in the form of amnesty.

New Section 271 D
Mr Bassett proposed that the original draft for the new Section 271D(2) be substituted with a new sub section (2)(a) and (b).

The word “or” in the proposed subsection (3)(a) had been substituted with “and”.
 
New Section 271 E
Mr Bassett noted that a new Section 271 E had been inserted in the Bill to dealt with the regulations, and that more work had still be done on general expungement and research on international best practice.

Mr Bassett suggested that the South African Law Reform Commission be asked to review the regulations

Judicial Matters Amendment Bill (the Bill): Department of Justice briefing on proposed changes
Mr Bassett tabled a new version of the Judicial Matters Amendment Bill.

Clause 1: Substitution of Section 113 of the General Law Amendment Act 1935

Ms Johnson noted that the long title of the Bill referred to “new born babies” whereas Clause 1 referred to the “unlawful disposal of body of a child”.

Mr Swart said that any disposal of a dead body had been considered a crime and that Clause 1 should be all encompassing.

Clause 2: Amendment of Section 88 of Administration of Estates Act 66 of 1965
Mr Bassett noted that the word “lunatic” in sub clause 2 (1) had now been omitted from the Bill and substituted with a more appropriate description of “mentally ill person or person with severe of profound intellectual disability”. He also said that “annually” in the same sub clause had been substituted with “monthly”.

Clause 3: Amendments to Medicines and Related Substances Act, as amended
Mr Bassett noted a correction to the Afrikaans text had been made.

Clause 4: Amendment of Section 51 of Criminal Procedure Act of 1977
Mr Bassett noted that a consequential amendment had been made.

Clauses 5 to 8 and Clause 17
Mr Bassett noted that Clauses 5,6,7,8 and 17 dealt with admission of guilt provisions as well as the transitional arrangements.

Clause 6: Amendment of section 56 of Criminal Procedure Act of 1977, as amended
Mr Bassett stated that the Commission on Gender Equality had indicated that the Bill had to specify that accused people could seek legal representation on whether an admission of guilt fine was the best option, as people thought that they would not have a criminal record if they opt for an admission of guilt fine.

The amendments now addressed this issue by having a paragraph on the implications of admitting guilt and the right to legal representation printed on the written notice or summons.

Clause 7: Substitution of Section 57 of Criminal Procedure Act of 1977
Mr Bassett stated that the crux of the amendments made was contained in Clause 7.

He added that the DoJ proposed that the function and power vested in magistrates to determine fines be taken away and instead allocated to the Minister of Justice and Constitutional Development. This was because magistrates had imposed different fines for the same type of crimes in their respective magisterial districts. This would ensure uniformity as well as equality.
 
Mr Swart asked whether the Magistrates supported the proposed amendments by the DoJ.

Mr Bassett replied that the some of the magistrates had expressed their opposition to the amendments and argued that they knew what the problems and circumstances were in the communities over which they had jurisdiction. The DoJ did inform them that although the Minister would determine the fines, the regulations that governed the process still had to come through the Parliamentary legislative process.

Ms Johnson noted that the Committee had to be careful about infringing on the separation of powers.

Dr Delport suggested that maybe the Minister could determine the maximum amount that could be imposed.

Mr Bassett replied that there would be no deviation from this as the State’s Prosecutors had the power to reduce a fine in any event, and that the intention had been to utilise this mechanism in practice.

Ms Johnson asked whether an expert legal opinion was necessary.

Mr Bassett replied that an expert opinion was not necessary, as all legislation went through the Office of the Chief State Law Adviser.

Mr Bassett stated that section 57 also empowered the South African Police Service (SAPS) to impose spot fines and admission of guilt fines without having to place people in custody unnecessarily.

Ms Johnson noted that this would be an administrative arrangement as certain matters could be disposed of before they even to court. She added it was unnecessary to place people in custody over the weekends in cases where a fine could have been imposed

Mr Bassett replied that the Chief Magistrate of Mitchell’s Plain had supported this, and urged the DoJ to communicate this to the SAPS. The SAPS had indicated that the National Commissioner of Police had already issued regulations, but the Bill would be silent on this, as all references to national instructions had been deliberately omitted from the Bill, due to certain difficulties encountered.

Mr Bassett then noted that a new sub clause 11 (b) had now been inserted and the word “contemplated” had been deleted from sub clause 11(c).

Clause 9: Amendment of Section 60 of Criminal Procedure Act
Mr Bassett noted that Clause 9 dealt with a new subsection 60(2B), which mandated the Court to institute an inquiry into whether a person was able to pay a certain amount for bail. He indicated that the proposed subsection 60(13), contained under sub-clause (b) and shaded in the document, dealt with the provision that allowed for bail to be paid at any court in the country

Mr Delport asked what the difference between the proposed subsection (b)(a)(i) and (ii) was, and proposed a revision of the wording

Clause 10: Amendment of section 79 of Criminal Procedure Act
Mr Bassett noted that the existing Section 79 (1) of the Criminal Procedure Act was now to be substituted with a new subsection (1). This dealt with the number of psychiatrists who had to evaluate the mental capacity of accused people. The wording of the new subsection proposed that the panel of three psychiatrists be reduced to two, and that if a prosecutor wanted a third psychiatrist or for the panel to be reduced, then he or she had to apply for an addition or omission. Mr Bassett added that this provision arose out of a murder case had been struck off the roll, due to serious deficiencies with this provision.

Clause 11: Insertion of new Section 110A into Criminal Procedure Act
Mr Bassett indicated that a new section 110A was to be inserted.

Ms Johnson asked whether the DoJ had engaged with the Department of Foreign Affairs (DFA) on the provisions contained in section 110A.

Mr Bassett replied that the DFA had noted that an embassy was not recognised as being part of the host country’s jurisdiction and that South Africa would not in normal circumstances waive a person’s diplomatic immunity, especially if the offence had been committed in a country that did not have progressive constitutional human rights laws.

Clauses 13,14, 15 and 16: Amendments to various parts of Section 309, 315 and 316 of Criminal Procedure Act
Mr Bassett noted that these clauses went together and that applications for appeals would now be heard during a normal open court procedure and not in a judge’s Chambers, after this was found to be unconstitutional.

Clause 17: Amendment of section 341 of Criminal Procedure Act
A consequential amendment had been made that aligned to previous provisions in the Bill.

Clause 18: Amendment of Section 3 of the Attorneys Act
Consequential amendments were to be made in respect of law clinics.

Clause 19: Amendment of Section 72 of the Attorneys Act 
The amendments proposed that fines be increased for both legal practitioners and candidate attorneys where they had been found guilty under disciplinary enquiry proceedings. Other consequential amendments had been made.

Clause 20: Amendment of section 3 of Admiralty Jurisdiction Regulation Act
Mr Bassett noted that the DoJ proposed amending Section 3 as the previous National Party government had implemented arbitrary legislation that protected South African maritime interest.

Sub section 3(9) of the Act would also be deleted.

Clause 22: Substitution of Sections of Intestate Succession Act
Mr Bassett noted that the Bill had originally made provisions for changes relating to same sex unions, but that it had been silent on domestic partnerships and related issues.

Ms Johnson stated that more work was needed on this.

Clause 23: Amendments of Schedule 2 of Criminal Law Amendment Act
Mr Bassett noted that new offences had been added to Part 1 of Schedule 2 to the Criminal Law Amendment Act of 1997.

New Clause: Amendment of Section 3 of the Debt Collectors Act
Mr Bassett noted that the Department was proposing a new subsection 3(4) to the Debt Collectors Act, which would allow members of the Debt Collectors Council to continue their investigations and inquiries into unresolved cases after their term of office had expired.

Clauses 24 and 25: Amendments to Debt Collectors Act
Mr Bassett noted that some consequential amendments had been made.

In addition, a new Subsection 20(9) was being inserted to deal with the powers of the Master of the High Court.

Clause 26: Amendment of Section 23 of Debt Collectors Act
Mr Bassett noted that the matters referred to would be dealt with in the regulations to be made by the Minister.

Clauses 27 and 29: amendments to Promotion of Access to Information Act
Mr Bassett noted that the matters listed originally in Clause 27 had now been removed from this Bill and would receive special attention as they dealt with very important issues.

Clause 33: Amendment of Section 33 of Promotion of Equality and Prevention of Unfair Discrimination Act
Mr Bassett noted that the amendments made related to the remuneration of members of the Equality Review Committee who were not in the employ of the State. The Treasury would henceforth remunerate these members, whereas members that were employed by the State would receive no extra benefits or remuneration.

Clause 34: Amendment of Section 7 of Judges’ Remuneration and Conditions of Employment Act
Mr Bassett noted that a new section 7(1)(b) was to be inserted, and certain technical changes had been made.

Clause 35: Amendment of Section 26 of Prevention and Combating of Corrupt Activities Act
Mr Bassett noted that the amendments made clarified the position and powers of magistrates in setting penalties as detailed in the prevention and Combating of Corrupt Activities Act of 2004. Magistrates could now impose penalties for corrupt activities.

New Clauses: Amendment of Section 42, 50 and 62  of Criminal Law (Sexual Offences and Related Matters Amendment Act
Mr Bassett noted that the DoJ, the SAPS, Department of Correctional Services and the Department of Health had applied for an extension of six months for the “roll out” of the National Register for Sex Offenders and had motivated this request due to the cost and time needed for such a project.

Clause 36: Transitional provisions
Mr Bassett noted that this clause dealt with the position in respect of admission of guilt fines that had been imposed prior to the amendments coming into effect.

The meeting was adjourned.