Criminal Law (Sentencing) Amendment Bill: Department Response to Public Submissions; Treaties With Argentine Republic: Approval

Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
07 AUGUST 2007
CRIMINAL LAW (SENTENCING) AMENDMENT BILL: DEPARTMENT RESPONSE TO PUBLIC SUBMISSIONS; TREATIES WITH ARGENTINE REPUBLIC: APPROVAL

Chairperson: Ms F Chohan (ANC)

Documents handed out:
Extract of Schedule 2 (Section 51) of the Criminal Law Amendment Act

Relevant documents:
Department's response to public submissions
Criminal Law (Sentencing) Amendment Bill [B15-2007]

Audio recording of meeting

SUMMARY
The Department of Justice legal drafters continued to summarise and respond to public submissions on the Criminal Law (Sentencing) Amendment Bill. Under Clause 1, commentators repeated points on the hierarchy of the courts, the likelihood of raised sentences, the perceived blockages in the system and the perception that the number of appeals would increase, which had already been discussed by the Committee. The Chairperson summarised that sexual offences would continue to be prosecuted, where appropriate, in the special Sexual Offences courts. The automatic right of appeal was a safety net. Objections to increased penal jurisdiction for regional court magistrates failed to take into account that they already could impose thirty-year sentences for some crimes, and that this was not a general increase in jurisdiction. The drafters had been asked to reconsider the wording of the exclusions under Section 51 (3)(aA) to make it clear that certain factors should not be considered as substantial and compelling circumstances justifying imposition of a lesser sentence in isolation.  It was impossible to legislate for all situations. The Chairperson summarised the decisions in the Brandt and Makwetsja matters. The drafters were further asked to clarify that the minimum sentence should not apply to those under 16, and that a minimum sentence should apply only to those between 16 and 18. A court preferring this sentence for that category must record exactly why it had come to the conclusion that no substantial and compelling circumstances existed. Amendments were needed in respect of offences involving firearms listed in the Schedule.

Under Clause 2, some submissions suggested that magistrates finding substantial and compelling circumstances not to impose a life sentence, would then be able to impose only a fifteen-year sentence. The Department did not agree with this interpretation. Other submissions suggested that there should be further provisions for referrals from Regional to High Courts. The Department noted that these already existed.

Clause 3 submissions related to whether subsections 53(3) and (5) should also be repealed, and whether the transitional process should be reflected in the principal Act or the Bill. It was agreed that it would be useful to insert a new Section 53A. Many were opposed to the principle that the minimum sentencing legislation should now be made a permanent feature of the criminal law, rather than being reviewed for extension every two years. Proposals called for a serious debate around a sentencing framework. The Committee noted that these submissions presupposed that a sentencing framework would provide absolute certainty, whereas discretion would still apply. The South African Law Reform Commission had already been requested to re-examine the issues and provide a number of options. Members noted that a sentencing framework could exist alongside mandatory sentences. 

Clause 4 submissions included a call for amendments to achieve consistency in the case of youth offenders referred to reform schools. The drafters believed it was not appropriate to address this issue in the current Bill. Other submissions called for automatic review, rather than automatic appeal. Members reiterated that the automatic right of appeal was a good safeguard. They felt that reviews would not address the substance of the matters, and reiterated that the fears that there would be a huge backlog of appeals were premised on incorrect assumptions.

Clause 5 submissions again proposed that there should be provision for referrals (which already existed). The National Prosecuting Authority (NPA) asked what the prosecuting policy should set out. It pointed out that to state that specified cases must be prosecuted in the High Court would offend against the principles of impartiality and common penal jurisdiction. Members suggested that the legislature could not be involved in policy, and that NPA policies could only properly be framed around logistical issues. Members suggested that the Committee should convey its sentiments in a report that would convey a strong message to the Executive.

Clause 6 submissions were made around the practicalities of referrals between courts, and amended wording was suggested. The drafters would check whether the High Court was able to set a date before receiving a record. The NPA suggested that the transitional provisions be deleted and that a practical arrangement instead be found. Further suggestions, calling for prosecutors to provide summaries and lists of State witnesses, and for amendment of Part II, could not be dealt with in this Bill.

The oral submissions by the Tshwaranang Legal Advocacy Centre on use of the words "co-perpetrators" were discussed, together with the points raised on discrepancy in sentences between those involved in multiple or single incidents of rape.

The drafters would present a new draft of the Bill to the Committee in the following week.

The Committee resolved to recommend the ratification of the Mutual Cooperation in Legal Matters Treaty and the Extradition Treaty between South Africa and the Argentine Republic, which had been discussed on 1 August.

MINUTES
Criminal Law (Sentencing) Amendment Bill: Department Response to public submissions
Dr Lirette Louw, Legal Drafter, Department of Justice, continued to take the Committee through the summary of the Department's responses to the submissions made during the public hearings.

Practice Committee of the Cape High Court: Clause 1
The Practice Committee was opposed to the proposed extension of jurisdiction of the Regional Court, claiming that there were material differences between the courts and that there was a risk of errors leading to injustice. They also expressed similar comments to previous commentators that the highest sentences should only be imposed by the highest court.

Mr S Swart (ACDP) said that only in exceptional cases would these cases be prosecuted in the Regional Court. Many of the arguments were premised on the assumption that the Regional Courts would always be the court of first instance.

The Chairperson pointed out that there would be exceptions, and that the type of sexual offences, presently prosecuted in the special Sexual Offences courts would probably continue there. The automatic right of appeal was the safety net. Currently the magistrates had the ability to sentence in some cases up to thirty years so the arguments that increased penal jurisdiction was unwarranted were spurious. They also did not take into account the principle of precedent, nor the fact that this was not a general increase in jurisdiction

The Practice Committee was opposed to the suggested amendment of the criteria for a finding of substantial and compelling circumstances. They believe that the identification and exclusion of factors interfered with judicial discretion. They warned that there might be a knee-jerk reaction with some parties wanting to add to or subtract from the grounds.

Dr T Delport (DA) had a nagging doubt on the fine line between legislating and interfering with the role of the judiciary. He felt that the Court should be able to take into account all factors relating to an accused, which would include prior relationships between accused and complainant and the personal circumstances of each.  Apart from the practical issues raised on the unwillingness of complainants to assist the prosecution, he was worried that the Committee might be crossing the line and not placing enough confidence in the Court to decide on the appropriate considerations.

The Chairperson asked if it would make a difference to his view if the wording of subsection (3)(aA) were changed, so that the Court, when considering whether substantial and compelling circumstances existed, was directed not to take these factors into account in isolation. There should be a broader consideration. Dr Delport's view was similar to that raised by Professor Terblanche. She said that the Committee would need to have a careful look at this issue. There were many strong factors, particularly when it came to children.

Dr Louw noted that the Practice Committee welcomed the repeal of Section 51(4) and amendment of Section 51(5) (which the Committee had already asked should be amended in the next draft by the Department.)

Judge Bertelsmann: Clause 1
Dr Louw noted that Judge Bertelsmann welcomed the abolition of the referral process. He was however worried about the proposed increase in the Regional Court jurisdiction, since he believed that every increase in the penal jurisdiction of the lower judiciary had resulted in all courts increasing sentences.

The Chairperson pointed out that this was not a general increase in the penal jurisdiction.

Judge Bertelsmann was also of the view that there would be a bottleneck of appeals.

The Chairperson indicated that the current referral process was just as problematic administratively as an appeal. Only 7% of cases referred in fact resulted in a life sentence. This submission did not take into account the new prosecuting policy.

Judge Bertelsmann was opposed to any restrictions on the (3)(aA) grounds.

Judge Bertelsmann agreed with he reintroduction of the ability to take time spent in custody while awaiting trial as part of sentence time.

Civil Society Prison Reform Initiative (CSPRI): Clause 1
Dr Louw noted that the CSPRI felt that the Bill would have a significant impact on the size of the prison population by increasing sentencing jurisdiction. This was a comment that had been considered by the Committee previously.

Child Justice Alliance (CJA): Clause 1
Dr Louw reported that the Child Justice Alliance believed that Section 51(6)(a) was unconstitutional, on the basis of the judicial interpretation of sections 28(1)(g) and 28(2) of the Bill of Rights. They asked that the minimum sentence should not be applicable to those under 18.

The Chairperson suggested that this be considered in the context of last resort. She said that she had re-read the Brandt judgment and the Makwetsja decision, which seemed to balance children's and the public's rights. The Court in the latter case said that when considering whether there were substantial and compelling circumstances, the age of the accused was always a factor to be considered by the Court of its own accord, rather than either party having the onus to argue and prove the matter. On the other hand the Brandt judgment seemed to suggest that it was too burdensome to require the Court always to consider age, and the decision of the full Bench in the Makwetsja decision was rejected. There was furthermore an analysis of this section in the Blaauw case. The words in Section 51(3)(b) suggested that where the Court decided to impose a minimum sentence on a child between 16 and 18, the Court must give reasons. There was a curious interpretation that the Court had a discretion because of the word "decides", and therefore the minimum sentence did not apply. This was a very technical argument, which was not intended at the time that the legislation was promulgated, nor did it make sense. The legislation was intended to ensure that the Court must apply its mind thoroughly to the issue and state why it found no circumstances to justify deviation from the minimum sentence. The Bill would need to make it clear that the minimum sentence should apply to those under 18 where the crime was serious and where there was no other route that the Court, having applied its mind and given reasons, could follow. She suggested that the word "decides" should not be used.

The Chairperson also requested that the drafters look at Section 51(6). She asked what was the rationale for subsections (6)(a) and (6)(b).

Dr Louw noted that the Bill's drafters had tried to be more lenient in respect of the lesser offences. The minimum sentence would never apply to a person under 16 years old, but could apply to a person between 16 and 18 convicted of the most serious offences, which were those listed under subsection (1), or (2)(a) or (b). It would not apply to a person - the most serious offences. It did not apply to an accused between 16 and 18 who had committed one of the offences under (2)(c).

Dr Louw read out Part IV of Schedule I offences.

The Chairperson noted that public violence would have to include use of a gun, and could possibly include gangsters shooting at each other in a residential area.  She asked why there were exclusions.

Dr Louw explained that the drafters felt that offenders committing certain types of crimes were more likely to be able to be rehabilitated, and therefore that these offences should be left to the Court's discretion.

The Chairperson noted that there needed to be amendments in respect of the firearms, and she suggested that this could be done by creating a new Schedule 3 and extracting from Schedule 1 the offences that were committed with a firearm, and then simply change the references to reflect the new Schedule 3. This would include treason, sedition, public violence, robbery or assault, (other than in Part 2), breaking and entering premises, escaping lawful custody and kidnapping.

The Chairperson noted that consideration might need to be given to excluding some people from the categories, and asked that this be flagged for further consideration.

Southern African Catholic Bishops Conference (SACBC): Clause 1
Dr Louw reported that the Conference had welcomed the amendment to Section 51(4). However, they submitted that the amendments made it more likely that minimum sentence would be imposed on youthful offenders and had suggested that Section 51(3)(b) should not be deleted.

Mr Johan de Lange, Principal State Law Advisor, DOJ, said that when the original draft of this Bill was done, it was considered that because the Brandt judgment seemed to have changed the categories, the legislation should be brought in line with the decision. Subsequently it was considered that perhaps this was a wrong interpretation, which explained why subsection (b) was being repealed. It was proposed that the blanket exclusion of the imposition of the life sentence be retained for those under 16. However, it should be made clear that the life sentence could apply to those between 16 and 18, but only in respect of certain crimes.

The Chairperson said that there was a danger of losing the vital principle that if the minimum sentence was being preferred, then the judicial officer must make a written note of exactly why no substantial and compelling circumstances were found. If the wording was changed, then it fell closer to suggesting that the onus must lie with the accused to show why his youth should be a substantial and compelling circumstance. Another possible way to do this would be to deal with it in a further amendment to the 51 (3)(aA) provisions.

Mr de Lange noted that at the moment the law required the judicial officer to impose the minimum sentence, unless substantial and compelling circumstances were found, which should then be noted in the record. It was possible to redraft the provision to specify that if a court imposed a minimum sentence on an accused under 18, it must record exactly why it had come to the conclusion that no substantial and compelling circumstances existed.

The Chairperson agreed that this would make the matter clearer.

Mr de Lange noted also that the fact of age, in itself should not be a substantial and compelling circumstance.

Mr de Lange reverted to the exclusion of the grounds under 51(3)(aA). He noted that in 2006, during the budget hearings, Ms Johnson had specifically raised with the Chief Justice and President of the Supreme Court of Appeal certain instances relating to the age of accused and the judiciary had conceded that perhaps there had been a misdirection. He thought that if the judiciary were unable to deal with the matter, then the legislature must make it clear.

The Chairperson noted that the legislature could not legislate for every circumstances, but could send messages out by wording the legislation so as to give clearer guidance to the Courts. This was why she was in favour of stressing that certain categories could not "solely" be taken as a substantial and compelling circumstance, as it would send out a stronger message.

Adv C Johnson (ANC) noted that there were still some judges who suggested that if an accused had a relationship, or was married to a complainant, then the rape was not so serious. She agreed that the Committee had a duty to send a strong message that this was not so, and that these cases should be treated the same as cases where the parties were not known to each other.

The Chairperson agreed that this matter would need further discussion. She also reminded Members that there might be other instances to be studied, such as the submission from the Tshwaranang Legal Advocacy Centre that factors such as employment were sometimes regarded as substantial and compelling circumstances.

Submissions on Clause 2
Association of Regional Magistrates (ARMSA): Clause 2
Dr Louw noted that ARMSA supported the repeal of the sections.

Basil King: Clause 2
Dr Louw said that Basil King had suggested that without the referral procedure, magistrates might be obliged to impose lesser sentences than the crimes warranted. His interpretation was similar to that raised by other parties, who had interpreted the legislation as meaning that either the minimum sentence was imposed, or a sentence limited to the general penal jurisdiction. The Department did not think that this was a correct interpretation and it would be clarified.

Basil King had submitted that there should be further provisions for referrals from Regional to High Courts. He suggested that there should be amendment of Section 114 or 116, or insertion of a new provisions in Chapters 17 and 18 to cater for referrals from regional to High Court.  Alternatively the regional court should be allowed by some other provision to commit the accused for sentence by a High Court.

Dr Louw said that these matters had been dealt with, and that the procedures already existed.

Mr de Lange noted that pre-1998 there was no referral procedure, but that this was not ever raised as a problem at the time. He believed it was wrong to suggest that injustices had arisen as a result of the principal Act. There was provision for other procedures, in particular that a case which subsequently was discovered to be more serious than it seemed could be converted at Regional Court into an enquiry, and the proceedings would be stayed and the prosecution referred to the High Court.

Clause 3 submissions: Repeal of procedures for renewal of minimum sentencing legislation
ARMSA submission: Clause 3
Dr Louw reported that ARMSA supported the repeal of sections 53(1), (2) and (2A)

Basil King submission: Clause 3
Basil King had submitted that Sections 53(3) and (5) should also be repealed as they would not play any meaningful role if the other subsections were repealed.

Dr Louw said that the Department was of the view that there might still be cases being dealt with under these provisions, and that there was no harm in keeping them in the legislation.

The Chairperson agreed.

Mr King had further suggested that Clause 6 should rather effect an amendment to the principal Act, so that Section 53 should reflect the transitional process. Dr Louw said that this was the way the initial draft had been, but on advice of the State Law Advisors, the drafters then moved this provision into the Bill, so it would appear in the Amendment Act rather than in the principal Act.

The Chairperson noted that the savings clause was Section 53. She suggested that there should perhaps be some separation, rather than having this appear as a subsection of Section 53.

Mr de Lange suggested that a new Section 53A could be inserted.

The Chairperson agreed.

Basil King had further suggested that the words "and 52" should be deleted from section 53(4)

Clause 3 submissions
South African Human Rights Commission (SAHRC), Open Society Foundation (OSF), Centre for the Study of Violence and Reconciliation (CSVR), CSPRI, Professor Terblanche and SACBC:
Dr Louw reported that a number of institutions had not supported the principle that the minimum sentencing legislation should be made a permanent feature of the criminal law, rather than being extended every two years.

SAHRC did not support the removal of the provisions. They preferred that the concept of minimum sentences should be done away with and instead that there be a serious debate on an appropriate sentencing framework. OSF proposed a comprehensive sentencing framework. CSVR suggested that there should be a fixed period for retention of the legislation. Professor Terblanche had submitted that if minimum sentencing were made permanent, there could well be a reassessment of the situation, and a constitutional challenge to it could be successful. The CSPRI submitted that deletion of the sections was premature and that further dialogue was needed on sentencing reform.

The Southern African Catholic Bishops Conference submitted that this was a retrograde step and amounted to an admission of defeat in the fight against crime.

The Chairperson noted that when the renewal applied, it was the President who asked for renewal and Parliament that concurred
These submissions raised several issues. They presupposed that minimum sentencing would no longer be reviewed. She reported that the sentencing framework had been formally referred back to the South African Law Reform Commission (SALRC) since the first option provided by it had not dealt with the legislature and the executive's role in sentencing. It was not true that if the minimum sentence were included as a permanent feature of the legislation, the whole debate would be abandoned. A sentencing framework could exist alongside mandatory sentences. She did not understand how Professor Terblanche had reached a conclusion that the mere fact of permanence would render the minimum sentencing unconstitutional. These submissions did not take into account the fact that Parliament could at any stage repeal any legislation.

Imam G Solomons (ANC) wondered what the arguments were really suggesting. He asked what the sentencing framework would encompass.

The Chairperson thought that what was being proposed was a sentencing Council to determine broad parameters. The whole idea was to try to reach consistency. This had its advantages in avoiding matters such as differentiation of sentences between different race or economic groups, particularly in view of the history of South Africa, and such a sentencing regime, with the necessary discretions, could be useful in the execution of justice. There might be an upper and lower limit attached to each crime. This would be part of a very important debate. The SALRC had been asked to give a variety of options, so that the most important criteria would determine the model to be preferred.

Mr Swart noted that while he understood Dr Delport's concerns about the fine line between legislating and interfering with judicial discretion, he supported the Chairperson's comments, particularly for the most serious crimes.

Clause 4 submissions- automatic rights of appeal
ARMSA submission
Dr Louw noted that ARMSA supported Clause 4.

Basil King submissions: Clause 4
Basil King had suggested that further textual amendments were needed to address the situation that an accused person under 21 years who was sent to a reform school would still have to apply for leave to appeal, since there  was no reference to reform school in the amendments proposed.

Dr Louw said that the Department would need to consider whether it was appropriate to deal with this discrepancy in this legislation, or whether it should be included in the Judicial Matters Amendments Bill.

Basil King submitted that a sentence of life imprisonment should not be automatically appeal able, but should be automatically reviewed.

The Chairperson noted that the problem with the review procedure was firstly that it was procedural in nature, and therefore did not enquire into the substance of the matters. While it was an easier administrative process, this did not address the concerns around preferring a life sentence, as a review would not enquire properly into whether substantial and compelling circumstances did exist that would justify a lesser sentence. The National Prosecuting Authority (NPA) had also raised a similar suggestion. She believed that it was necessary to retain the automatic right to appeal, as it was an important safety net.

CSVR, SACBC submissions: Clause 4
Dr Louw summarised that CSVR believed that doing away with the split procedure would reduce the backlogs, but suggested that the proposed automatic right of appeal would introduce further problems. Legal assistance was not always available and there would be a backlog of appeals

The Chairperson said that the fears about the backlog had already been discussed. She reiterated that the appeal was an adequate safety net.

Mr Swart asked if there was any provision in the Act dealing with provision of Legal Aid in these circumstances. He suggested that perhaps the Department should enquire to what extent the Legal Aid Board would give assistance.

The Chairperson believed that there would be an obligation to provide Legal Aid to those under 18 or unemployed because of youth.

Dr Louw said that the means test would be applied. She was not sure whether there was any specific provision for automatic Legal Aid. 

Dr Louw summarised that the Southern African Catholic Bishops Conference had made the same points.

Criminal Justice Alliance (CJA) submission: Clause 4
Dr Louw stated that the CJA had a different approach, and suggested that all those under 18 should be provided with a general and automatic right of appeal.

Clause 5 submissions
ARMSA submission
Dr Louw said that ARMSA supported Clause 5.

Basil King submission: Clause 5
Basil King submitted that whilst the directives on the prosecuting procedures may be clear, the possibility of a serious case slipping through because the investigation was not completed properly could result in an offender escaping justice. There should be provision for referral in appropriate cases from Regional to High Courts.

The Chairperson noted that this point had been discussed and that there was already such provision.

National Prosecuting Authority (NPA) submission: Clause 5
Dr Louw reported that the NPA had raised a number of points. Firstly they questioned what criteria could be used to determine which cases should be tried in the High Court in the first instance. They suggested that to direct that "high profile" cases must be heard in the High Court would be inconsistent with the principle that everyone be equal before the Law. In addition, directing that serious or complex cases should proceed in the High Court was inconsistent with the principle that the regional and high courts should have the same penal jurisdiction.

The Chairperson indicated that the same penal jurisdiction argument would of course apply to Part I offences, and that there was already the proviso that the Sexual Offences Courts should continue to be used where appropriate. The same provision could apply to the offences in the other Parts, as rape was also included under Part III

Dr Louw believed that the NPA might have addressed their own point in the oral hearings, by saying that if a matter was instituted in the Regional Court, but later it became clear that it should have been a High Court matter, there was the possibility of transfer.

The Chairperson noted that there was not an objects clause in the Bill. She asked if the drafters had given thought to perhaps stating more specifically that the prosecuting policy directives should deal with the question of serious offences being charged at a Regional Court under certain circumstances.

Dr Delport indicated that he was not in favour of that approach, which seemed to him to be tantamount to an admission that there was not full confidence in the Regional Courts' ability to handle such matters. Nowhere in the Bill was the legislature suggesting what should be contained in the policy. This was left to the NPA to decide. The NPA might decide that its policy should be based on the length of the cases, or the number of witnesses. Years ago there was already a practice that serious matters would be referred as a matter of course to the (then-named) Supreme Court, since the judges, who had been appointed from the ranks of advocates, would have a more serious approach to sentencing than the magistrates, who were largely appointed from the ranks of prosecutors. Dr Delport did not think that it was for the legislature to dictate NPA policy.

The Chairperson understood his point. However, the NPA seemed to be asking the Committee to give some sense of what should be the determining factors, and if, for instance, one murder case could be tried at Regional Court while another would be prosecuted in the High Court. NPA was anticipating that the Judges President might raise objections, and wanted some sense of certainty as to how the legislature would like the NPA to approach the matters. .

Dr Delport noted that appeals were not necessarily based on sentencing, but could also encompass admissibility of evidence. The seriousness of the crime would in all likelihood only finally appear at the time of trial. He thought that any policy would have to be based on practical criteria such as court loads, availability of court staff, and location of the nearest court.

The Chairperson agreed that his argument had merit. The Committee had wanted the most serious crimes to be prosecuted at the high Court. When the NPA had first broached the issue of secondary trauma, the response of the Committee was that the NPA, in order to avoid the split procedure should, where this was likely to occur, prosecute in the High Court to begin with. The NPA had argued that the Judges President were opposed to this. The Committee felt that Part I matters should be instituted in the High Court. The extension of the Regional Court jurisdiction should cater for those matters where it was not apparent, up front, that the matters could attract a life sentence. The Sexual Offences Courts would continue to be used because of its specialised facilities, where appropriate. She suggested that perhaps the Committee should convey its sentiments in a report that would convey a strong message to the Executive, which could then pass it on to the prosecuting authority.

Dr Louw noted that the NPA was of the view that the amendment should not be included in the Act. However, if it was inserted then NPA recommended wording that would clarify the difference between “policy directives” and “prosecution policy”.

The Chairperson thought that this was not necessary. If the policy was set out, the High Court would need to accommodate it. She agreed that the guidelines should not be in the legislation. In respect of the distinction between policy directives and policy, she thought that there could not be directives without a policy. She asked the drafters to revert to the Committee with a suggestion.

Clause 6 submissions
ARMSA submission: Clause 6
Dr Louw summarised that ARMSA had submitted that referrals between courts could take months to finalise since the cases would have to be placed on the rolls of the High Court. They suggested that the regional court should, pending the allocation of a High Court date, maintain jurisdiction over those cases that had been referred, but not yet heard. ARMSA's proposed substitute wording for Clause 6 was tabled.

Dr Louw noted that ARMSA had also sent an e-mail explaining the current procedure, which she summarised. The matter essentially hinged on the allocation of a court date by the High Court.

The Chairperson asked if a court date would be allocated if the records had not been transferred from Regional to High Court. If it was correct that the de facto transfer occurred only when a court date was allocated, then it was correct that until that time the matter should remain on the Regional Court roll. If a date had been allocated then the High Court should proceed. She asked Dr Louw to check the practicalities of whether a date would be set before the record was received. 

NPA submission: Clause 6
Dr Louw noted that the NPA had suggested that the transitional provision should be deleted. They had suggested a practical arrangement whereby cases already in the High Court should be finalised there, and cases in the Regional Court could be adjourned.

The Chairperson noted that the adjournment procedure was already available. It seemed more onerous to have a situation where the date might have been allocated at the High Court, but the case and records must be transferred back to the Regional Court, which would cause further delays.

Basil King submission: Clause 6
Dr Louw reported that Basil King had suggested that there must be clarity on the meaning of "heard".

The Chairperson agreed that where a date had been allocated by a court, the matter must proceed in that court. She asked the drafters to check with the NPA tat the same practice applied throughout the different provinces.

Schedule 2 submissions
ARMSA submissions
Dr Louw noted that ARMSA had suggested that, in order to enhance case flow management, a section should be included in the Bill to oblige prosecutors to provide a summary of facts and list of state witnesses, similar to the procedure in the High Court. Dr Louw felt that perhaps it was not appropriate to address this particular issue in this Bill, and that ARMSA should instead discuss the matter with the NPA.

ARMSA submitted that the reference in Part II of Schedule of the Act to "semi-automatic firearm" should exclude "Semi-automatic pistol" as the High court had interpreted this section in such a way that it was impossible to impose the minimum sentence for this. Once again she had doubts whether this was properly addressed in this Bill.

ARMSA also suggested that rape (other than that in Part 1) be moved from Part III to Part II of the Schedule.

Oral submissions made by Tshwaranang Legal Advocacy Centre
Dr Louw reminded that during the oral submissions Ms Vetten of the Tshwaranang Legal Advocacy Centre had made a point that the wording of "co-perpetrators" was misleading, and that the doctrine of common purpose would not apply to rape. Dr Louw did not agree with the interpretation Ms Vetten had placed on the cases referred to. Ms Vetten had argued that  rape in Part III should be moved up to Part II. She raised apparent discrepancies in sentencing for an accomplice who did not rape the complainant and the accused who had performed the act of rape.

Dr Louw noted that the way the legislation was framed was intended to deal with accomplices in a gang rape situation.

The Chairperson asked that copies of the cases be sent to the Committee. She noted that this had been dealt with in the Sexual Offences legislation.

Dr Louw noted that Ms Vetten had also raised the discrepancy in sentencing between a person committing three separate rape incidents, and a person who raped a victim several times during one incident, such as a gang rape. She felt that there was no real distinction between the crimes.

The Chairperson noted that this was a valid point, but that the Court could in any event exercise discretion.

The Chairperson indicated that the drafters should work on a new draft, based on the submissions and comments of the Committee, for consideration by the Committee during the following week.

Treaties with Republic of Argentina: Mutual Cooperation in Legal Matters, and Extradition Treaty: Proposal to ratify
The Chairperson reminded Members that on 1 August there had been a briefing by the Department of Justice on the South African / Argentine Republic treaties on Mutual Cooperation in Legal Matters, and the Extradition Treaty. No formal decision had been taken to propose the ratification of the treaties. She therefore asked for a vote on each treaty in turn.

Members voted unanimously to recommend the ratification of the Mutual Cooperation in Legal Matters treaty between South Africa and the Argentine Republic.

Members then voted unanimously to recommend the ratification of the Extradition Treaty with the Argentine Republic. 

Other Committee Business
The Chairperson announced that it would not be possible to meet with the National Council of Provinces on 8 August, and tentative dates had been suggested for Monday 13 or Tuesday 14 August. The Committee would definitely meet on Tuesday 14 August to discuss either the Constitutional Thirteenth Amendment matter or deal with other matters.

The meeting was adjourned.