Criminal Procedure Amendment Bill: deliberations & adoption; Reform of Customary Law of Succession & Related Matters Bill: Deferral; Judicial Matters Amendment Bill: briefing & deliberations; Approval of Rules; Promotion of Access to Information Act: adop

NCOP Security and Justice

17 November 2008
Chairperson: Mr K L Mokoena (ANC)
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Meeting Summary

The Committee considered the Criminal Procedure Amendment Bill, starting with the draft Report and Memorandum on the Objects of the Bill that had been amended following deliberations on the previous day, and proceeding to a clause by clause deliberation. The amendments were mostly technical in nature, and related to the Preamble, and Clause 3, where one paragraph was to be deleted and another split into two, with consequential changes to the numbering. The Committee adopted the Motion of Desirability, the Report and the Bill.

It was noted that the Committee had decided to defer the voting on the Reform of the Customary Law of Succession and Related Matters Bill, pending further discussions with stakeholders and agreement that the Bill was correctly answering their concerns.

The Committee then considered the Judicial Matters Amendment Bill, which sought to amend fifteen Acts administered by the Department of Justice. The Departmental officials took the Committee through the Bill, explaining what each clause entailed and the rationale behind it. Members commented that they found the Bill very complex in its wording, and asked questions of clarity, most of which related to the new provisions for bail payment at any court, the new regime for admission of guilt fines and the reasons why the maximum fines in respect of disciplinary offences under the Attorneys Act were being raised so substantially. The Department undertook to return to the Committee with explanations in relation to the wording of the Administration of Estates Act, and also suggested that it should look further into the concerns around the concealment of birth in Clause 1, and the general application of debt collection administrative charges. The Chairperson agreed, and asked for a report back in one year. Members then adopted the Bill.

The Committee then asked for a report on the Traditional Courts Bill, and was assured by the Department that this was still on track and could be passed before the next election.

The Committee convened for a second meeting later in the day to debate the request for approval of the Rules of Procedure for applications to Court in terms of the Promotion of Access to Information Act, No 2 of 2000. It further considered the amendment of the Rules relating to the conduct of proceedings of Provincial and Local Divisions of the High Court; these proposed amendments to Rules 49, 49A, 51, 52, and Form 25 of the First Schedule. Members raised points of clarity in relation to the application of Act 2 of 2000, and approved those Rules. Members also discussed and adopted the High Court Rules.


Meeting report

The Chairperson noted his thanks to Mr A Moseki for taking part in an interview that morning on the forthcoming Review of the Criminal Justice System.

The Chairperson further noted that he had received a call from the National Assembly Committee to note that they were happy with the amendments proposed in respect of the South African Police Service and National Prosecuting Authority Amendment Bills. He thanked the Members for their work on the Bills, and their constructive engagement. These Bills would be debated in the House on 27 November.

Reform of the Customary Law of Succession and Related Matters Bill: deferral of voting
The Chairperson reminded Members that in respect of the Reform of the Customary Law of Succession and Related Matters Bill, there had been some concerns expressed by the traditional leaders, who had felt that their cultures were being sidelined. The Committee, noting that the Bill was intended to improve the lives of all South Africans, considered that the Bill should not be pursued until stakeholders were happy that their concerns had been addressed. The voting on the Bill would therefore be deferred, although there was an indication that it could still be passed before the end of this Parliament. 

Members briefly debated how matters would be dealt with, in view of the last sitting of the NCOP scheduled for 19 November, and it was pointed out that the Committees would be working later than originally anticipated. The Chairperson undertook to produce a fixed programme as soon as possible. Multi-party Whips would be informed of progress.

Criminal Procedure Amendment Bill (the Bill): Deliberations
Draft Report
Mr Lawrence Basset, Chief Director: Legislation, Department of Justice, tabled the Draft Committee Report containing the formal amendments and the Memorandum on the Objects of the Bill, following the discussions the previous day.

In the Preamble the necessary change was made to the spelling of "expungement".

Clause 3 inserted new Sections 271B, 271C and 271D into the Criminal Procedure Amendment Act. The new wording was set out on Page 4 of the Draft Report, which Mr Bassett read out (see attached document).

The remaining amendments were consequential. On page 5, Clause 3, in line 17, the reference to paragraphs (b) and (c) would be altered to refer to paragraph (b) only.  This was because paragraph (c) had been removed. It was pointed out on the previous day that this dealt with disqualification for expungement if a person was convicted of firearm expenses. The Department would launch a comprehensive investigation on expungement.

After subsection (2), a new subclause (a) would be inserted.

On page 7, in line 41, the reference to "271B(2)" would be corrected by the insertion of a reference to “271B(2)(a)"

In line 42, after the word "section" the phrase "271B(2)(b) or section" would be inserted. Mr Bassett noted that this was because Section 271B was now to be divided into two separate paragraphs. One would refer to the certificate issued by the Director and one by the Minister.

The Chairperson commented that this Draft Report correctly reflected what the Department had been requested to do.

Memorandum on the Objects of the Bill
Mr Bassett noted that the changes were reflected on page 4. He stressed that the underlined wording was in line with the new sub-clause (2), where the Minister now played a role and was given a discretion. The provisions relating to the Firearms Control Act had been deleted.

Members had no questions nor did they wish to discuss the provisions further.

The Motion of Desirability, as read out by the Chairperson, was moved and seconded.

Clause by clause deliberations
The Chairperson proceeded to go through the Bill, clause by clause.

The Preamble, Clause 1, Clause 2, Clause 3 (as amended by the insertion of a new paragraph, as discussed earlier) and Clause 4 were all accepted. The new Memorandum on the Objects was also noted again.

Members unanimously adopted the Bill.

Members also unanimously adopted the draft Report of the Committee.

Members agreed that it would not be necessary to debate this Bill in the House; a statement would therefore be made by Mr B Mkhalipi (ANC, Mpumalanga)

Dr F van Heerden (FF+, Free State) commended the Department on the arrangements in respect of audio visual postponement, commenting that it would save considerable costs and court time. 

Mr Bassett agreed that this had been a good development, and noted that the roll out would increase, and once the successes were proven it could also be used for matters other than postponements and remands. Money had already been budgeted to facilitate the roll out. 

Judicial Matters Amendment Bill (the Bill): Department of Justice (DOJ) briefing
Mr Bassett noted that the Memorandum on the Objects of the Bill gave a comprehensive background to the Bill. He explained that this was a reprinted Bill as during the finalisation of the Bill at the Portfolio Committee on Justice and Constitutional Affairs (PC) not all the mistakes had been picked up by the printers, with the result that five minor corrections were moved from the floor during the Second Reading debate, and the Bill was then reprinted.

Ms Theresa Ross, State law Adviser, Department of Justice, noted that this Bill amended fifteen separate Acts administered by the Department of Justice (DOJ). These types of amendment Bills would usually contain amendments that were fairly straightforward and would not necessitate individual Bills. She then proceeded to take Members through the Bill.

Clause 1 dealt with an amendment to the General Law Amendment Act, which criminalised the act of disposing of the body of a child, with the intention of concealing its birth, regardless of whether the child had been born alive or not. The reason was that Section 113 had been criticised as overly broad and lacking in definition, and there were fears that it might not pass Constitutional scrutiny. It was further felt that this clause violated the dignity of women being charged under this provision. The amendment addressed the evidentiary burden and, as additional protection, required any prosecution to be authorised by the National Director of Public Prosecutions (NDPP).

Clause 2 related to Section 88 of the Administration of Estates Act, dealing with money held in the Guardians Fund (the Fund). Interest on money held there was currently only paid once a year, on 31 March. This had been prejudicial to the beneficiaries for whom the money was held in the Fund. These amendments proposed that the interest be paid monthly, bringing the calculation of interest into line with the methods used by commercial institutions. The Department had developed an electronic system that would facilitate these calculations. The amendments were supported by the Master of the High Court, both from a public interest point of view and because it would assist in earlier detection of any fraud in the Fund. In addition, the responsibility to determine the interest on moneys held in the Fund would henceforth be that of the Minister of Justice (who administered the Act) and not the Minister of Finance. A further amendment involved the deletion of the word “lunatic” which was no longer considered appropriate, to bring this Act into line with the Mental Health Act. 

Clause 3 contained a technical amendment, correcting a term in the Afrikaans version of the Medicines and Related Substances Act.

Clause 4 was also technical, and corrected the reference, in the Criminal Procedure Act, to the "Prisons Act”, inserting instead the correct "Correctional Services Act, 1998"

Clauses 4 and 5 dealt with amendments to the Criminal Procedure Act (CPA) in relation to admission of guilt fines. Sections 55, 56, 57 and 57A of that latter Act were to be amended. Ms Ross explained that currently Section 57 allowed prosecutors and Clerks of the Court, as well as peace officers, to set admission of guilt fines in certain circumstances.  She explained that the Minister would determine a maximum amount for admission of guilt fines, but within that parameter magistrates could use their discretion to set what they considered to be appropriate amounts to be paid. If the Magistrate did not determine an amount, the prosecutor could do so. Peace Officers had no discretion, and could only set admission of guilt fines to the extent of the determination made by the Minister.

These provisions had proved problematic, since the situation arose where different admission of guilt fines had been set in different Magistrate’s Court jurisdictions. The provision, which was intended to keep minor cases out of court, was not always being used properly. There had been a problem with this provision. Different admission of guilt fines existed in different parts of the country, which gave rise to uncertainty and was possibly in conflict with Section 79 of the Constitution, guaranteeing equal protection. This concept was also intended to keep minor cases out of court but it was not being used to its full potential. Furthermore the fact that magistrates were essentially determining the fines meant that there was a blurring of the separation of powers as these judicial officers were essentially making law.

The amendments set out in the Clauses 6, 7, 8 and 17, as also 9 and 39 of the Bill therefore related now to the fact that the CPA was to be amended so that admissions of guilt may only be set by the Minister in respect of less serious offences, that the offences be described, as well as the amounts. This would be done in consultation with the Chief Justice, the National Director of Public Prosecutions and the Minister for Safety and Security. The discretion of the magistrates to set the fines was to be removed.

Ms Ross pointed out that the amendments made by Clauses 6, 8, 17 and 39 were consequential.

Clause 9 of the Bill amended Section 60 of the CPA by empowering a Court, if it had come to a conclusion that the accused should be released on bail, to hold a further enquiry to determine the ability of the accused to pay the sum that the Court intended to set as bail. This was aimed at alleviating the problem of overcrowding in the correctional facilities. The rationale was further that if the Court had come to a conclusion that the accused should be released on bail, it should facilitate that release.

Ms Ross noted also that at the moment bail could only be paid at the Court where the case against the accused was registered. Recognising that bail was often paid by third parties who may not reside in that area, the Department of Justice had proposed that Section 60(13) be amended, so that bail could be paid at any Magistrate's or High Court. The Department now had the necessary electronic links between Courts to track these payments.

Clause 10 sought to amend Section 79 of the CPA, which regulated the assessment of the mental health of persons charged with serious offences, to determine whether they were fit to stand trial. Currently a panel of three psychiatrists, of whom one must be in private practice was required to assess the accused. There had been problems in implementation because of a shortage of private psychiatrists willing to perform the assessment. The amendment now would allow a prosecutor to request that the Court depart from this requirement and allow a panel of only two psychiatrists, in accordance with directives to be issued by the NDPP, which must be developed in consultation with the Minister, and submitted to Parliament.

Clause 11 would amend the Criminal Procedure Act, by conferring jurisdiction on South African courts to try offences committed by South African officials while they were on diplomatic duty abroad, in certain circumstances. Currently these officials could not be prosecuted abroad, because of their diplomatic immunity status, and they were not being prosecuted on their return to South Africa. 

Clause 12 intended to amend Section 285 of the CPA. Currently the Court was permitted to reconsider a sentence of periodic imprisonment if the person sentenced failed to appear for the first periodic imprisonment, but could not act where the sentenced person might initially appear but subsequently be in default. This amendment was intended to correct the anomaly and give the power to reconsider to the Court at any stage of the person’s failure to report.

Clauses 13, 14, 15 and 16 were amending Section 309C, 315 and 316 of the Criminal Procedure Act. This would correct the current position, in line with a decision of the Constitutional Court in the matter of Shinga v State and Others, so that in future all criminal appeals must be heard in open court and the full record must be presented to the Court.

Clauses 18 and 19 contained amendments relating to the Attorneys Act. Clause 18 was to amend Section 3 of the Attorneys Act in order to correct the anomaly that a principal who may engage a candidate attorney included "an attorney who is employed full time at a law clinic or an office of the Legal Aid Board" but not the attorneys at the Board itself. Clause 19 was amending Section 72, which set out the maximum amount of the fines that may be imposed by the Council of the Law Society on attorneys found guilty, after Law Society disciplinary proceedings, of unprofessional conduct. The maximum fine for attorneys was to be raised from R10 000 to R100 000 and for candidate attorneys from R2 000 to R20 000. These fines had last been adjusted in 1993 and were considered out of date.

Clause 20 deleted Section 3 of the Admiralty Jurisdiction Regulation Act of 1993, which gave the Minister powers to exclude certain ship owners from the application of the Act, and which allowed a claimant in a maritime claim to arrest a ship in order to found jurisdiction, but said that the ship arrested would not necessarily have to be the ship giving rise to the maritime claim, but could be an associated ship belonging to the same shipowner. This provision had originally been enacted to try to circumvent the sanctions imposed on South Africa under the previous regime. The deletion of this section would bring the provisions of the Act into line with the Constitutional requirement that everyone was equal before the law and was entitled to same Constitutional benefit and protections.

Clause 21 proposed to amend Section 18(b) of the Matrimonial Property Act. This amendment arose from the decision of the Constitutional Court in the matter of Van der Merwe v Road Accident Fund. Section 18(b) currently permitted a person married in community of property to recover from his or her spouse damages only in respect of bodily injury, but not in respect of patrimonial loss. This was considered to be an unjustifiable infringement on the equity provisions. The amendment would ensure that patrimonial damages could also be recovered, and must become the separate property of the injured person, and not fall into the joint estate.

Clause 22 amended Part I of Schedule 2 of the Criminal Law Amendment Act of 1997.

Clauses 23 to 26 contained amendments to the Debt Collectors Act. Clause 23, inserted at the request of the Council of Debt Collectors to assist them in discharging their mandate, would increase the number of Executive committee members on that Council from three to five. Clause 25 gave the Council for Debt Collectors the power to take control of, administer and finalise a debt collector's trust fund in certain circumstances, and where the debt collector was likely to have his registration withdrawn. The Master was also empowered to require security from a curator before that curator would be appointed to administer the trust fund.

Clauses 27 and 28 contained amendments relating to the Promotion of Access to Information Act (PAIA). Section 79 of that Act required the Rules Board for the Courts of Law (the Rules Board) to make rules under the PAIA. The amendment would extend the time period for the making of these rules, and also insert wording similar to that used in the Rules Board for the Courts of Law Act, setting out the requirements relating to the approval of the Minister, to eliminate the current uncertainty as to the procedures.

Section 79 further provided that a person, such as a clerk of the court, who assisted a member of the public in filing the forms, would be indemnified from civil or criminal action if he or she was acting in good faith. The amendments contained in Clause 28 would extend that indemnity to an official assisting a member of the public in complying with the new Rules.

Clauses 29, 30, 31 and 32 related to amendments to the Promotion of Administration Justice Act (PAJA). Clause 29 extended the statutory deadline setting out the time period within which the rules must be made. It inserted wording similar to the Rules Board for the Courts of Law Act, requiring the approval of the Minister. Clause 30 extended the statutory deadline for the Code of Good Administrative Conduct to be made and published, until February 2009. Clause 32 contained technical amendments relating to Section 11 of the PAJA, correcting a citation to the short title of the Act.

Clause 33 of the Bill amended Section 33 of the Promotion of Equality and Prevention of Unfair Discrimination Act, to ensure that members of the Equity Review Committee who held public office would be remunerated only by way of allowances, and would not be paid a separate remuneration over and above the public office remuneration.

Clause 34 amended the Judges Remuneration and Conditions of Employment Act of 2001. A judge discharged from active service, but who was under 75, must, when required, perform service for three months a year. A judge, including one over 75, could also volunteer to do more than this. Currently, such voluntary service could only be done with the request of the Head of the Court, approval by the Minister, and after consultation with the Judicial Service Commission (JSC). This had been problematic, as the JSC only sat twice a year, and it had not managed to deal with the backlogs. These amendments therefore would no longer require the consultation with the JSC. There was a safeguard in that this could only be applied in respect of temporary judicial posts, so that up and coming judges would not be blocked.

Clause 35 of the Bill contained amendments to the Prevention and Combating of Corrupt Activities Act, 2004. Currently, the Magistrate’s Court Act limited the penal jurisdiction of district courts to imposition of three years imprisonment or a R60 000 fine. However, this 2004 Act made provision for penalties up to a maximum of five years imprisonment or a fine of R250 000. This amendment would confirm the Magistrate’s Courts powers to impose these penalties under this Act.
Clauses 36 to 38 concerned amendments to the Sexual Offences Act, allowing for the extension of the deadline for establishing the National Register of Sex Offenders and the policy to be submitted to Parliament. These had taken more time than anticipated. 

Mr D Worth (DA, Free State) asked whether the phrase “arrest of a ship” was correct, in respect of Clause 20, or whether it should rather refer to seize, impound or attach. 

Mr Bassett sad that the term “arrest of a ship” was correct in law, and was international recognised as well as appearing in the Admiralty Jurisdiction Act.

Mr M Mzizi (IFP, Gauteng) said that he had found the language of the Bill very complex. He questioned what usufructuary, fiduciary and fideicommissary meant in relation to the Administration of Estates Act.

Mr Bassett said that these were all terms used in the law of trusts, and he undertook to revert to the Committee with a more precise distinction between them. Broadly these dealt with rights that fell short of the right of ownership.

Mr Mzizi also asked for more clarity on Clause 18, relating to the damages paid by one spouse to another.

Mr Bassett explained that Clause 18 would relate only to marriages in community of property, where there was a joint estate. At the moment one of the spouses would be able to claim damages for bodily injuries, but not for loss of earning, from the other. The Constitutional Court felt that there was no justification for this, and that it infringed on the right to equality, since the same limitation did not apply to spouses married out of community of property.

Mr Mzizi commented that if people were married in community of property there would be a joint estate, and if one spouse claimed from the other it might be that the house would be attached and sold to pay the debt, which would then affect the children. He asked why damages paid from the joint estate would then accrue to one party. He noted that allowing the wife to have separate property would offend against the laws relating to a customary union. 

Ms Ross explained it was possible even now to have separate estates, depending on the marital regime. This was nothing new. This specific amendment was to ensure that a wrongdoer did not benefit from his or her own wrongdoing.

Mr Mkhalipi asked whether the clauses relating to admission of guilt fines would include traffic offences, and he also asked what the administrative checks and balances were. Although he realised that this was not directly relevant to this Bill, he commented that rarely were receipts received in respect of fines paid through the post, or checks established in respect of warrants of arrest at roadblocks.
Mr Bassett agreed that this was not covered specifically in these Bills. Warrants of arrest were not being dealt with. The amendment here attempted to deal with the discretion of the magistrates that had given rise to the situation where different fines applied to different magisterial districts. This related again to the need to treat everyone equally before the law. There were some safeguards in Section 57 of the CPA. All admission of guilt fines must be sent back to the Court, and the Magistrate must go through each and every fine that was entered on to a register. The Minister would also be able to determine those offences that qualified for admission of guilt. In theory, at the moment, admission of guilt fines could be given for anything, but this was to be brought in line. Because of the current disparities, there was uncertainty around admissions of guilt and many people ended up being brought to court when it would have been appropriate to follow the admission of guilt route.

Mr Mkhalipi also asked how bail being paid in any Magistrate's Court in the country could be arranged.

Mr Bassett explained that the amendments under this Bill would enable anyone to pay bail money into any Court, not only the court where the bail application had been heard, to enable the person being held to be released. This was quite a positive development.

Mr J Skosana, Chief Director: Policy Development, Department of Justice, expanded that the processes would be dealt with between the officials at each Court, who would be able to communicate and arrange for the release of the person being held. It was intended to assist the person being held as well as ease the overcrowding in correctional facilities. He noted that any possible corruption would be dealt with. He confirmed that this would apply only when bail had been granted. In Singapore there was even the possibility to pay bail electronically. 

Mr Mkhalipi asked whether list of fines (the “boetelys”) kept by peace officers and provincial officers would fall away, or whether they would be retained in terms of the ordinances and by-laws.

Mr Mzizi noted that he had recently sat at a Select Committee for Public Services Committee when the Department of Transport had suggested that magistrates should be imposing certain set amounts in relation to certain speeding offences. He asked how this could be properly scaled and if there was an intention to revert to provincial fines.

Mr Bassett noted that there was a need to look at provincial and local levels. There was an intention to achieve uniformity. There would have to be an extensive consultation process and the Minister would determine both offences and amounts. He noted again that admission of guilt fines would apply only to the less serious offences. Although the traffic offences might play a role, these fines could be extended to common law offences, for example petty theft or possession of small amounts of dagga.

Mr Mkhalipi asked how periodic imprisonment differed from community service.

Mr Bassett noted that periodic imprisonment would apply, for instance, over weekends. He would check whether community service was mentioned as a sentencing option in the Criminal Procedure Act.

Ms Ross added that community service would not involve any detention, whereas periodic imprisonment would involve a person being detained.

Mr Skosana noted that the concept of community service was still quite new, and was being used by traditional leaders who might not have authority to pass other sentences. The Criminal Procedure Act did not have community service as an option, but proposals would soon be brought for some amendments to that Act, to bring new provisions to promote restorative justice

Mr Mkhalipi noted that the increase of the fines allowed under the Attorneys Act was a huge percentage increase and asked why this was necessary.

Mr Bassett agreed that it was a substantial rise, but noted that this request emanated from the Law Society of South Africa. The fines had last been adjusted in 1993, and it was felt that the present levels of fines were not a substantial deterrent, whereas raising them might be an effective deterrent.

Mr Mkhalipi asked for further clarity on the amendment allowing for prosecution of diplomatic officials committing offences, particularly what “deported back for prosecution” meant.

Mr Bassett noted that this amendment was requested by the Department of Foreign Affairs, to cater for offences committed by diplomatic offences abroad. They would not necessarily be recalled immediately, but the amendment sought to ensure that they would henceforth be charged in South Africa for the offence committed abroad, provided that the act was considered an offence in both countries, and that the NDPP must authorise the prosecution. 

Mr Mkhalipi noted the clauses relating to amendments to the debt collectors. He expressed concern that some of the students in his constituency had been sued for money owed to their former universities, and had 10% deducted from every payment they made for debt collection fees. He thought there was a need to look again at the law, as this seemed very high.

The Chairperson wondered how many people might have been blacklisted from purchasing on credit because of the massive costs they were effectively paying to debt collectors.

Mr Bassett noted the concerns that the debt collectors often did charge amounts outside the law, which was why the Debt Collectors Act was so important. Many of these collectors did in fact work within the parameters of the law. Clause 23 was now making provision that notwithstanding the expiry of the term of office of members of the Council serving on disciplinary committees, they could still continue to hear the part-heard cases. The Department would look at the other aspects raised.

Mr Mkhalipi asked, in relation to Clause 36 amendments to the Sexual Offences Act, why the elderly and infirm were not included as classes requiring special protection from sexual offenders.

Mr Bassett noted that the amendments were intended to give a little more time to establish the Sexual Offences Register. The Department was working closely with the NGO sector, and it was felt preferable to have the extension that would allow things to be properly set up rather than rush this through. He noted that the Sexual Offences Act devoted two separate chapters to sexual offences against minors and those who were mentally disabled, since they were considered to be especially at risk. The elderly and infirm would receive more general protection under the other provisions of the Act. 

Mr Mkhalipi asked what Clause 39 meant.

Mr Bassett noted that the regime for admission of guilt fines was to be changed. This was essentially a transitional provision. An admission of guilt fine that may have been imposed, but not taken further under section 57 would continue to be dealt with as if the amendment to that section had not taken place. All matters “already in the process” would be finalised as if the old laws still applied, but any new matters commencing after passing of the Bill would be dealt with in terms of the new amendments.

Mr Mkhalipi commented that the long title of this Bill was very long. He asked if the last phrase "and to provide for matters connected therewith” was supposed to apply to every Act being amended.

Mr Bassett noted that this last phrase did relate to all of the Acts.

Mr A Moseki (ANC, North West) noted the comment of Mr Mzizi about the legislation concerning the Department of Transport and asked if there was alignment between the departments.

Mr Bassett asked which Bill was being referred to.

Mr Mzizi said that he would pass this Bill to the DOJ. He noted that he had asked the Department of Transport whether it had consulted with the Department of Justice and had been told that this had taken place.

Mr Skosana noted that this legislation related to the introduction of the e-NATIS system and recovery of payments, but it related to regulation of drivers’ licences and not to admission of guilt fines that were covered under this Bill.

Mr Moseki noted that some fines might be imposed by municipalities. He therefore asked whether the South African Local Government Association (SALGA) had been consulted.

Mr Bassett said that they had not been consulted on the admission of guilt fines.

Mr Skosana said that in fact the fines imposed by the municipalities in relation to admission of guilt fines were not fixed by the municipalities, but by the magistrates in that area. For this reason they were not directly involved.

The Chairperson asked whether the Minister could delegate his or her powers in relation to the fixing of admission of guilt fines, and how it was likely to be done.

Mr Bassett noted that this was going to be a major task. There would have to be some sort of categorisation, to see how similar offences could be brought together in one "bundle". This would have to be preceded by a massive consultation process.
The Chairperson remarked that this would be some time before implementation.

The Chairperson asked, in relation to Clause 1, what was meant by a "lawful burial order". He noted that a still born child, in some cultures, would be buried immediately by the elders in the community, and asked if that would be regarded as concealing a death. He was worried that there might be unintended consequences if other cultures and customs were not taken into account.

Mr Bassett noted that the concept of a "lawful burial order" had been in the legislation since 1935. This was, however, something that the Department would look at and revert to the Committee. He mentioned that although the Portfolio Committee had passed this Bill it had raised some concerns and had asked the Department to consult with role players and then return to Parliament with a report. He suggested that perhaps this issue should also form part of that report.

The Chairperson questioned Clause 10, relating to assessment of a person’s mental capacity to stand trial by two instead of three psychiatrists. He asked how this assessment would take place, in particular whether the two psychiatrists must sit simultaneously, and why the assessment of only one would not be sufficient. 

Ms Ross noted that this assessment would relate often to serious offences, such as murder cases. The wording of a "panel" would imply that there must a sitting of psychiatrists together.

Mr Bassett gave some history to the matter. The panel was to be constituted by Order of Court. If the assessment related to fitness to stand trial for serious offences (listed as murder, culpable homicide, rape or another charge involving serious violence) then currently three psychiatrists were required. For less serious offences only one psychologist’s assessment was required. Prior to 1998 two psychiatrists, one of whom was a medical superintendant, and the other a person not in full time State service, were needed, although there was provision that a third psychiatrist could also be called in. In 1998, after an investigation by the Law Reform Commission, this number was raised to three. However, the practical difficulty was that a number of serious cases had had to be withdrawn because it had become increasingly difficult to appoint a panel of three, particularly in Gauteng. This amendment was not doing away with the panel of three, but was saying that the prosecutor, if there were difficulties in constituting a panel of three, could request the Court to rule that two psychiatrists’ assessments would suffice.  The NDPP must issue directives as to the cases and circumstances where a prosecutor may apply, so there were checks and balances. 

Mr Mzizi asked whether the Department of Justice accepted credit cards or other forms of payment other than cash for bail.

Mr Skosana replied that only cash was accepted.

Mr Mzizi then noted that it might be considered desirable to think about other methods. He pointed out that criminal syndicates could target large bail payments for high profile cases. 

Mr Mkhaliphi queried whether it was possible for South African diplomats to be prosecuted overseas.

Mr Skosana said that this was not possible, seeing that they were given diplomatic protection whilst overseas. However, if the diplomat committed an act that was considered to be a crime both in his host State and South Africa, then that diplomat should be held accountable. Such diplomats could not be extradited after they were returned to South Africa as they did not hold dual citizenship.

Ms Hartley pointed out some typographical errors: on page 26 of the Bill, the reference to Clause 62 should read Clause 38, and the reference to Clause 50 should read Clause 62

The Chairperson read out the Motion of Desirability, which was accepted by Members.

Members then formally approved each Clause of the Bill, and adopted it, with the necessary technical amendments as proposed.

The Chairperson asked the Department of Justice and Constitutional Development, within one year,  to report back to the Select  Committee in respect of the matters that had been raised earlier, both by the Portfolio Committee on Justice, and in relation to Clause 1 of this Bill.
Traditional Courts Bill
The Chairperson noted that over the weekend he had attended a meeting of all traditional leaders. They had complained that despite making input and holding consultations on the Traditional Courts Bill, they had not had a report back. Mr Jacob Zuma had said that this Bill must be passed before the elections. The Chairperson therefore called for a report from Mr JB Skosana, Chief Director: Policy, Department of Justice.

Mr Skosana responded that this Bill was not “parked” but it had been moving, albeit at a slower place than desired. The Portfolio Committee had agreed to fast track the process. The NCOP would shortly be consulted with a view to establishing a small committee to address some of the concerns raised in the public hearings in May.  He reminded the Committee that one of the concerns of Congress of South African Trade Unions was that the Bill, when dealing with community sentencing, appeared to be bringing in elements of forced labour – and the distinction between forced labour or making good what had been broken and thereby had affected the community would be discussed. He confirmed that the Bill was on track.

Approval of Rules
Mr Deon Rudman, Deputy Director, Department of Justice, said that there were four matters that still needed to be dealt with by the Committee. The first related to the salaries of judges. This matter was still with the National Assembly and could be dealt with on the following day. There were one or two errors of calculation still being rectified.

The second to fourth matters related to approval of three sets of Rules that had been submitted to the NCOP earlier in the year. These had been approved by the Portfolio Committee that morning and he had been asked to request this Committee to fast track them so that they could be finalised. He indicated that these were the rules under the Promotion of the Access to Information Act, the rules relating to appeals in the Magistrate’s Court and rules relating to the Supreme Court of Appeal. All the Rules had been made by the Rules Board but required approval by Parliament.

The Chairperson asked when these were first referred to the Committee

Mr Rudman could not give an exact date, but noted that it would have been around February. They were submitted to the Chairperson of the NCOP.

The Chairperson commented that his office was very diligent but he could not recall seeing these. He would try to find a slot to deal with them. However, he expressed his concern that this request had not come before this Committee before today.

The morning session was adjourned. 

Promotion of Access to Information Act: Approval of Rules
Ms Clair Hartley, Rules Board Secretary, noted that the Committee was being asked to consider approval of the Rules that had been made by the Rules Board for Courts of Law under the Promotion of Access to Information Act. She tabled the Rules, and briefly explained them. 

Dr van Heerden asked if any person could make application at any Court in South Africa under the Promotion of Access to Information Act, under the current rules.

Mr JB Skosana, Chief Director: Policy, Department of Justice, explained that the Promotion of Access to Information Act would apply to all courts in South Africa besides the Small Claims Court. 

Mr M Mzizi questioned whether these changes would affect the relevant fee structures.

Adv Skosana then explained that the Small Claims Court only dealt with matters involving less than R7000.

Ms Hartley said that the fees would be lowered and that fees were payable at all courts except the Small Claims Court.

She then went on to explain the 8 kilometre radius rule and explained how these Rules would change and broaden the radius. Furthermore she stated that documents could now be faxed or mailed.

Members moved and seconded the adoption of the Rules relating to the Promotion of Access to Information Act.

Request for approval of amendments to Magistrate’s Court Rules
Ms Hartley then noted that the Committee was being called upon to consider the amendment of Rule 67 of the Magistrate’s Court Rules, as well as consequential amendments relating to the numerical list of forms, the Alphabetical List of Forms and the substitution of Form 60 of Annexure 1 to those Rules. She tabled the amendments.

Dr van Heerden questioned what Section 309 in the Criminal Procedure Act was about.

Mr Mzizi mentioned that there was a certain time frame for appeals and that the Portfolio Committee on Justice and Constitutional Development should consider issues around delayed trials or cases where the defendant did not seek legal representation.

Ms Hartley explained that the Clerk of the Court should assist all those who were not represented.

Members agreed to adopt the amendments.

Amendments of the Rules Regulating the Conduct of the Proceedings of the Several Provincial and Local Divisions of the High Court of South Africa.
Ms Hartley noted that the Committee was being called upon to consider the amendment of the Rules relating to the conduct of proceedings of Provincial and Local Divisions of the High Court. She noted that proposed  amendments were being made to Rules 49, 49A, 51, 52, and Form 25 of the First Schedule. She tabled the document containing the amendments.

Dr Van der Merwe asked who, according to Rule 52(1)(c)(i), was to pay for the six copies of the court reports or transcripts. He pointed out that many clients would be unlikely to be able to afford these costs.

Members adopted the Rules

The meeting was adjourned.

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