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.
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
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
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
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:
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Date:
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