FUND FOR VICTIMS OF VIOLENT CRIME BILL

 

 

 

 

 

 

 

 

 

 

 

 

Private Members’ Bill Submitted by Dianne Kohler Barnard MP

 

Submitted in terms of Section 73 (2)

 

Read with Section 76 (1) of the Constitution

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

MEMORANDUM

 

 

 

Notice is hereby given of the introduction of a Private Members’ Bill in terms of Section 73 (2) read with Section 76 (1) of the Constitution. In terms of rule 234 (read with rule 230 (1)), a member must submit to the Speaker a memorandum which:

 

(a)     sets out particulars of the proposed legislation

(b)     explains the objects of the proposed legislation; and

(c)     states whether the proposed legislation will have financial implications for the State and, if so, whether those implications may be a determining factor when the proposed legislation is considered.

 

The Honourable Speaker is requested to deal with this Bill in terms of Section 235 of the National Assembly Rules.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

A. PARTICULARS OF PROPOSED LEGISLATION

 

BILL

 

To create a fund for the victims of violent crime; to prescribe the way in which the fund shall be operated; to define the powers, duties and responsibilities of the Trustees of the fund; and to lay down the procedures for applications for payments from the fund.

 

BE IT ENACTED by the Parliament of the Republic of South Africa as follows:

 

1. Definitions

 

(i)                   “Fund” means the fund established in terms of section 2;

(ii)                 “Minister” means the Minister of Justice;

(iii)                “Trustees” mean the trustees appointed by the Minister in terms of section 4;

(iv)                “Victim” means any person who has been killed, or has suffered injury, whether physical, emotional or psychological, as a result of violent crime, committed against him or her, and includes the spouse or minor children of any such victim who died as a result of a violent crime, and whose perpetrator or perpetrators have been tried and found guilty under South Africa Law of committing a violent crime against the claimant;

(v)                  “Violent crime” means murder, rape, indecent assault, public violence, terrorism, assault with the intent to commit bodily harm, kidnapping or any combination of such crimes committed within the Republic, within the territorial waters adjacent to the Republic, or on board a ship or aircraft registered in the Republic.

 

2. The Fund for Victims of Violent Crime

 

(1) There is hereby established a fund to be known as the Fund for Victims of Violent        Crime, into which shall be deposited:

(a) all fines imposed as sentences by any court

(b) all bail money forfeited to the state in terms of section 66 or 67 of the Criminal Procedure Act, 1977 (No 51 of 1977);

(c) any monies appropriated by Parliament from time to time for the purposes of this Act; and

(d) any donations or bequests made to the fund by individuals or bodies corporate.

 

(2) Notwithstanding anything to the contrary contained in the Public Finance Management Act, 1999 (No 1 of 1999), all available money of the fund may be utilized for the purposes set out in this Act.

 

(3) The Minister may, in consultation with the Minister of Finance, and after    consultation with the trustees, by regulation prescribe:

          (a) the details of the management of the fund;

          (b) the procedure relating to issues from the fund to victims;

          (c) the form in which applications for compensation shall be made;

          (d) the manner in which the accounts of the fund are to be kept; and

(e) any other matter which he or she considers necessary or expedient to prescribe in relation to the control of the fund.

 

(4) The Trustees shall keep such accounts as are prescribed by the Treasury, in      consultation with the Auditor-General, and shall annually lay the statements and balance sheets of the fund on the Tables of both Houses of Parliament.

 

(5) The books and statements of account and balance sheet of the fund shall be audited annually by the Auditor-General.

 

3. Victims may be Recompensed from the Fund

 

(1) Subject to sub-section (2), any victim may apply in the prescribed way to be recompensed from the fund for injury or loss suffered by the victim as a result of a violent crime perpetrated against him or her.

 

(2) No claim against the fund shall be entertained if the victim:

(a) has already received damages awarded by any Court as a result of injuries or loss sustained during particular violent crime perpetrated against him or her in respect of which he or she is applying for compensation; or

(b) has instituted an action for damages before any Court as a result of injuries or loss sustained during the particular violent crime perpetrated against him or her in respect of which he or she is applying for compensation, provided that if such action is unsuccessful, the victim may thereafter apply to be recompensed from the fund; or

(c) has already been awarded compensation in terms of section 300 of the Criminal Procedure Act, 1977 (No 51 of 1977) in respect of the particular violent crime; or

(d) has already been awarded compensation as a result of any provision of the Promotion of National Unity and Reconciliation Act, 1995 (No 34 of 1995) in respect of the particular violent crime, or has applied for such compensation, provided that if such application is unsuccessful, the victim may thereafter apply to be recompensed from the fund.

 

(3) The Trustees may entertain the application by a victim and grant such claim in such amount as they deem reasonable and appropriate, or reject the application, and shall in each case supply reasons for their decision.

 

(4) If a victim has been awarded compensation in terms of this Act, he or she shall cede his or her right to claim damages in law in respect of the violent crime perpetrated against him or her to the Trustees.

 

 

4. Trustees

 

(1) The Minister shall appoint Trustees who are fit and proper persons, South African citizens and capable of acting as trustees in terms of the Trust Property Control Act, 1988 (No 57 of 1988) to exercise fiduciary control over the fund, and to carry out such other duties as may be prescribed under this Act.

 

(2) The Minister shall, in consultation with the Minister of Finance, determine the     remuneration the Trustees.

 

(3) The Minister may appoint as many Trustees as are deemed necessary, at least one of whom should be appointed to serve in a full-time capacity.

 

   (4) The Trustees shall be assisted in the performance of their duties by such members     of the public service as the Minister, in consultation with the Minister of Finance and the Public Service Commission, shall determine.

 

(5) The Trustees may institute legal proceedings in any court to recover damages in respect of rights ceded in terms of section 3(4).

 

5. Short Title

 

This Act shall be known as the Fund for Victims of Violent Crime Act, and shall come into operation by promulgation in the Government Gazette.

 

 

B. THE OBJECTS OF THE PROPOSED LEGISLATION

 

This Bill recognises the particular needs and rights of the victims of crime by providing for the possibility of restitution for victims; and by providing for the state to pay compensation in certain circumstances.

 

It is common concern that the crime levels in South Africa have reached alarming proportions, and this fact has been well documented by figures released from time to time by the Minister of Safety and Security and/or the South African Police Service.

 

The South African Police Service has had limited success in apprehending the perpetrators of such crimes, and the current levels of violent crime show no immediate prospect of abating.

 

While the attention of the criminal justice system is often directed at apprehending criminals, very little attention is typically given to the victims of violent crime, who are either killed or subsequently die as a result of crimes committed against them, or suffer non-fatal injuries or losses for which they are not recompensed (their dependents suffer in both cases). The suffering includes emotional and psychological trauma, and victims are frequently obliged to undergo lengthy periods of medical and psychological care following a violent crime perpetrated against them. In these circumstances, and given the suffering invariably caused to the most vulnerable sections of society (the poor, and in particular, dependents of the poor), there is a clear need for such victims to be compensated.

 

This Bill seeks to establish a dedicated fund to assist the victims of violent crime. Into the fund will be paid all fines imposed as sentences by courts, all bail monies which are forfeited to the State, such other monies as may be appropriated by Parliament and any donations or bequests made to the fund by individuals or bodies corporate. The fund will be subject to auditing by the Auditor-General and to Parliamentary control.

 

The Bill empowers the Minister to appoint trustees for the fund, and to make regulations in terms of which the fund will be managed.

 

The Bill is inspired by, and partly modelled on, similar legislation in the United Kingdom. Moreover, considerable global research in the field of criminology has supported the need for compensation of this kind.

 

C. FINANCIAL IMPLICATIONS

 

The Legislation will incur some financial costs with regard to setting up the Fund and for the ongoing administration and running of the fund. It is envisaged that these costs could be channelled from the sources referred to in section 2 (1) of the Bill.

 

 

 

 

 

 

 

Name of Member:                      Dianne Kohler Barnard MP

 

 

 

Signature:                                 ……………………………………………………………..

 

 

 

Date:                                        ……………………………………………………………..