Criminal and Related Matters Amendment Bill: deliberations
17 February 2021
In a virtual meeting, the Committee received a briefing by the Department on the Criminal and Related Matters Amendment Bill and the A-List containing the amendment provisions in the light of suggestions made at the public hearings on the Bill. The Department gave a technical presentation looking at applicable case law, and proceeded to outline the changes in the A-List.
The Committee took issue with the fact that the presentation documents had arrived only late the night before, after the Chairperson and Committee Secretariat had been hard pressed to get hold of them. This meant that Members did not have enough time to deliberate on the documents before the meeting. Although they did not find fault in the presentation, they would have appreciated the time to look through the documents.
The Committee agreed that there was a need for the Chairperson to write a strong letter to the Minister expressing the need for the officials involved in the drafting of the Bill to be held to account, as the late arrival of the documentation without an explanation was unacceptable. It also called for the political heads of the Department to be present for the deliberations on the Bill. The Committee felt it needed to have more time to become better informed on the Bill, as its duty was to pass quality laws that would have an impact on the country for years to come. It therefore decided to revise its schedule in order to find another date when it could deliberate fully on the Bill.
Lastly, the Committee adopted its report on the Correctional Services Amendment Bill [B32 – 2020].
The Chairperson said that after concluding deliberations on the Criminal Related Matters Amendment Bill, and if time allowed, the Committee may want to look at the Budgetary Review and Recommendations Reports (BRRRs). He had been informed that there was a report which the Committee had not passed on the Correctional Services Amendment Bill. The Committee would also need to look at this report. The BRRRs would be guided by how far the Committee got in the processing of the Bill, but the report needed adoption today. He proposed that if the Committee did not find time to conclude all the BRRRs, the first thing on Friday, it should deal with them before the Correctional Services Sub-committee on Corrections.
Mr S Swart (ACDP) greeted Members and submitted his apologies, as he had to leave for the Chief Whips meeting later in the meeting.
Mr X Nqola (ANC) said that he was sure that the Members would recall that Members once went to a study tour regarding the South African permanent mission to the United States in New York. This was a matter that had made an impression on the public. He requested that he be allowed to leave for a meeting after 10:00, saying that he would return to the meeting immediately thereafter (reference to a meeting of the Portfolio Committee on International Relations).
The Chairperson asked that he please return afterwards, as the Committee would need a quorum for the adoption of the report.
Mr Nqola said that he would definitely come back.
Ms N Maseko-Jele (ANC) said that she was having serious connectivity issues. She did not know what the issue was, but she had reported it as it limited her participation. She was present, but she may miss some things because she may not hear them.
Ms J Mofokeng (ANC) suggested that the BRRR be considered on Friday, considering what Mr Nqola and Ms Maseko-Jele said. She also acknowledged that the Committee had a delegation from the Inter-Parliamentary Union in the afternoon, and it would be a very heavy load for the Committee. She asked if it could be moved to Friday.
Ms W Newhoudt-Druchen (ANC) said she agreed with Ms Mofokeng's suggestion.
The Chairperson accepted this, and asked the Committee to proceed with the deliberations on the Criminal and Related Matters Amendment Bill.
The Committee Secretary noted the apology of Ms Y Yako (EFF).
Concern over late submission of documents
Before the Committee proceeded with its deliberations on the Criminal Related Matters Amendment Bill, the Chairperson expressed his serious concern regarding the official responsible for its drafting. The Committee had had to extract a presentation which had arrived late the previous day -- after 9 pm, which was totally unacceptable. Laws were passed by Parliament and not by the Department. If the Committee passed a defective law, this reflected on Parliament. The Committee could not allow a situation where it came to a meeting without having had sight of the document and prepared themselves properly because some officials had decided to give it documents at the last-minute. It was grossly unacceptable, would not be tolerated by the Committee, and he thought that because the Committee had raised the issue of receiving documents late many times, he felt that it should draw the line today.
He proposed that the Committee write to the Minister and give the Minister a timeframe in which to ensure, through departmental processes, that the responsible official faced consequences, and that the Minister then give the Committee a report, since it could write only to the Minister and not to the Director-General (DG), on what actions it had taken.
By the time the Chairperson had gone to sleep at 9.45pm, he was informed that the documents had just arrived. If the constitutional power of Parliament to make laws was respected as one of its primary responsibilities, and there was a situation where it was not being supported to achieve this objective, it meant that it was not being taken seriously at all, and it must draw the line. This pattern had to come to an end today. He requested that the Members give him the opportunity to write this letter to the Minister, saying that action now needed to be taken because the Committee could not now reduce itself to a Parliament that perpetually complains while nothing changes. He asked the Members what their views were.
Ms Mofokeng said that she shared the Chairperson's sentiments, and supported the writing of the letter to the Minister. She also asked whether a Deputy Minister was present in the meeting today, or any other person accompanying the delegation from the Department who was more senior than the DG as a political head. In the absence of such a person, she felt that the Committee also needed to raise that at all times when the Committee dealt with Bills, the Department needed to be available to see what was actually delivered by the officials. She agreed that the Committee should not tolerate the pattern of receiving reports late and still be expected to continue with business as usual.
Ms Newhoudt-Druchen supported the writing of the letter to the Minister. If the Committee Secretariat had not reminded the Department to get the report, the Committee may not have even received the presentation the night before. She would have preferred to have had a chance to go through the report and make herself comfortable and know exactly what she wanted to say.
The Chairperson indicated that he and the Committee Secretariat had worked from the afternoon to late evening in order to try and extract the report which was eventually distributed. The situation was really unacceptable.
Mr Swart shared the Chairperson's sentiments. He added that the Committee was under massive pressure from the whippery and Parliament to finalise this legislation. In looking into the matter, however, he thought that it would be interesting to ascertain where the blockage had arisen. He noticed while reading the documents that they were very up-to-date -- right up to last week's presentation on the gender-based violence (GBV) Bills and the legal opinions. He presumed therefore that the officials were also under a lot of pressure to finalise these Bills, given the complexities. However, this did not detract from the fact that the presentation had been requested and it had arrived late.
The Chairperson said that if there were blockages, the Committee should have been informed and not made to work like headless chickens the day before. It should have been informed on time that there were problems and that the documents would be late. The Department could not simply decide to forward the documents at a time determined by them.
Adv G Breytenbach (DA) agreed that the Chairperson should write a letter and couch it in the terms that he preferred. She also agreed with Mr Swart in saying she thought the officials were an under enormous amount of pressure, but the Chairperson was correct in saying that if there was going to be a delay, the Committee should have been informed. Certainly, in the last Parliament, there had been an easy-come, easy-go attitude towards the Committee which had been accepted, and she thought that they should make it clear that this was no-longer the case. She supported the Chairperson.
The Chairperson thanked Members, and said that if there had been this view about the Committee, it certainly needed to change as it would no longer be accepted.
To answer Ms Mofokeng, he said that he thought that the highest-ranking official was Ms Theresa Ross, State Law Adviser, and that the Deputy Minister was not in the meeting. He asked Ms Ross if she was leading the delegation from the Department.
DoJ briefing on Criminal and Related Matters Amendment Bill
Ms Ina Botha, Principal State Law Adviser, said that she and Ms Theresa Ross were the supervisors of the officials responsible for the Bill drafting. She wanted to begin by expressing their sincere apologies for the inconvenience caused by the late submission of that document. The Department fully understood the pressure that the Committee was under and the deadlines which it had, and the pressure that Parliament was under. She wanted assure the Committee that the Department took its commitments seriously. Unfortunately, there had been some misunderstanding, but she thought it best that the Committee leave it and respond in writing through the Minister. She would, however, convey what he had said and the concerns expressed to all of the officials concerned in all the legislation that was still with Parliament. She repeated her apologies.
The Chairperson asked the Department to start and asked who was presenting.
Adv Sarel Robbertse, State Law Adviser, began speaking, but was inaudible.
The Committee Secretary suggested that he used headphones as some laptops did not pick up audio well.
Adv. Robbertse moved computers, and asked if he was audible.
The Chairperson confirmed that he was.
Adv. Robbertse said that he would be responsible for the presentation by the Department, and began by saying that on 11 November 2020, the Department had briefed the Committee on the comments and responses which had been received on the Bill. During the briefing, two issues had been raised:
The first related to clause 10, which amended section 316B of the Criminal Procedure Act (CPA), which provides for an appeal where a case was considered by a Supreme Court on appeal. It indicated that Legal Aid South Africa (LASA), in reference to the Kock decision, had raised the issue that it could not support the proposed decision, to which the Department had raised the Ramolefi judgment, referenced on Page 1 of the Microsoft Word presentation. The Department indicated that there were obiter dicta from the Ramolefi judgment to the effect that there was probably a need for legislation.
The second issue raised was related to clause 15(a), which amends Part I of Schedule 2 of the Criminal Law Amendment Act 105 of 1997 (CLAA), and referred to the fact that attempted murder was not included in Part I of Schedule 2 of the CLAA. On 13 November 2020, the Department had submitted proposed amendments to the Bill to the Committee that were mainly related to comments received during the public consultation process. The Department had discussed the proposed amendments in depth, with reference to the comments received. During this time, the Committee had requested that an opinion be obtained from the Parliamentary Legal Services (PLS) regarding the constitutionality of the provisions of the Bill that dealt with bail, and the possible tightening of parole.
On 10 February, the PLS had briefed the Committee on both aspects which were covered in points 3(a) and 3(b) of the Word document.
He proceeded to refer to relevant sections in DPP Western Cape v Kock 2016 (1) SACR 539 (SCA), and DPP Gauteng Local Division, Johannesburg v Ramolefi
In the United Kingdom (UK), an appeal from the lower or Crown Courts to Courts of Appeal was allowed, but only if the decision was unduly lenient.
In Australian jurisdictions, different requirements were needed for appeal in different jurisdictions. He had also looked at New Zealand and Canada.
He submitted that the double jeopardy principle had been recognised in, amongst others, the Kock, Olivier and Ramolefi judgments.
Other constitutional democracies followed roads allowing for a more extensive appeal against sentences in criminal matters.
He submitted that this was mainly to the effect that the public must be protected and ensure that fair sentences were imposed.
The Chairperson thanked Adv. Robbertse and asked if he was going to present on the other documents later, or whether Members would like to engage now.
Adv. Robbertse said that the other documents that were annexed were mainly the A-List, which he had discussed previously. However, he would go through it once more. He asked for a moment to retrieve the document as he had moved computers. He explained that the amendments in the A-List emanated from suggestions received during the public consultation process.
Criminal and Related Matters Amendment Bill: A-List
Adv. Robbertse said that the A-List had been presented on 11 November 2020, but he could go through it again.
This clause dealt mainly with evidence through intermediaries and proceedings other than criminal proceedings -- in other words, civil proceedings. A comment was received to the effect that if the circumstances changed during proceedings, a court may revise its decision to refuse the appointment of an intermediary. The proposed section 51A had been amended, and the current clause was re-numbered as clause 'a,' with a new clause 'b' being inserted to read as follows:
'A court may, on application by a party affected by the refusal contemplated in paragraph (a), and if it is satisfied that there is a material change in respect of any fact or circumstance that influenced that refusal, review its decision.’
This clause dealt with court bail, and what was amended was that additional grounds were inserted as conditions that a court must take into account when it considers bail. It was suggested that clause (g) be amended to insert the following conditions:
-after 'bail,' to insert 'or placed under correctional supervision, day parole, parole or medical parole as contemplated in section 73 of the Correctional Services Act, 1998.'
-5(g) amongst other things provides that during the consideration of bail, evidence that the accused previously committed certain offences whilst released on bail must be taken into account. This is then extended by the Department to correctional supervision, day parole, and medical parole as contemplated in the Act.
This clause dealt with the amended section regarding the appointment of intermediaries in criminal proceedings. Similar to the amendment to clause one, the amendment was affected to the extent that a court may, if there was a change of circumstances, devise its decision regarding the refusal of the appointment of an intermediary. One must remember that an intermediary could, amongst others, be appointed where the witness was an adult. This was probably very relevant to the new amended clause.
This clause, amongst others, amends Part 1 of Schedule 2 of the Criminal Law Amendment Act -- the so-called Minimum Sentences Act. This gave rise to the concern expressed when the Department briefed the Committee on 11 November, that although paragraph (a) of clause 15 amended murder, no provision was made for attempted murder. Certain consequential amendments were affected by the re-numbering of other paragraphs to cater for this amendment.
This clause dealt with amendments to Part 2 of Schedule 2 of the Minimum Sentences Act, and the offence of murder was qualified to the effect that it applied only in circumstances other than those referred to in Part 1.
This was similar to the first amendment, regarding evidence through intermediaries in civil proceedings where a superior court was involved, and this amendment was to the effect that a magistrate may review its decision of refusal to appoint an intermediary.
These were the amendments that were proposed to the Bill.
The Chairperson thanked Adv Robbertse. He told the Members that they had received the two documents, the first dealing with issues of appeal, attempted murder, bail parole, and section 316B. The second document was the Bill. Since this was the first round of deliberations, Members could raise questions regarding both documents.
Ms Newhoudt-Druchen asked what the purpose of the third document was. As she had not had sufficient time to engage with the presentation, she did not have any other questions.
Adv Robbertse said that there were not that many amendments to the Bill and as such, an A-list was sometimes made for Bills which were being proposed in Parliament.
Ms Newhoudt-Druchen said she was not sure that Mr Robbertse had understood her question, and said that there had been three documents sent, and asked what the third was about, titled: 'Directives on complaints on correctional services supervision and the parole board.' She asked for clarity as to why this third document had been sent and what purpose it served in this context.
Adv Robbertse said that the purpose of the third document on the correctional supervision directive of the Commissioner of Correctional Services was something issued in terms of section 299A (4) of the CPA. It related mainly to the participation of a complainant in parole proceedings. This was more or less to give an indication, since certain questions had previously been asked, such as whether a victim could give evidence to a parole board without being present. The directives did provide for this. It also dealt specifically with the notification and confidentiality issue, which suggests that there must be some action on the part of the state to ensure that the information of a victim was obtained and there was an obligation on a complainant who desired to attend a parole proceeding to inform the Department of Correctional Services about their particulars, as well as a change of address. It also sets out statements that could be obtained regarding possible parole, and sets out the rights of an offender. It was mainly to ensure that the Committee was informed about previous concerns that had been raised regarding the current limitation of section 299A of the CPA. He indicated that the CPA was not the legislation to deal extensively with parole. This concluded his response.
The Chairperson asked that the Adv. Robbertse project the A-List.
Adv. Robbertse said he could not do it from his side -- he thought the Committee Secretary had done so previously.
The Chairperson asked if the Committee Secretary could present the document, and asked if Members had issues to raise on the first document before considering the A-List, clause by clause. He then asked whether the Members were happy with clause 1 of the A-List and the draft as redrafted.
Dr M Ndlozi (EFF) said that the concern on his part related to the earlier predicament raised by the Chairperson. These were fine details that one would have preferred to have had time to consider, had the documents arrived on time. Because of the detail in the Bill, the Committee needed to pay extra attention to it. It was therefore very difficult to contribute, as Members were seeing the documents only that morning and had been taken through them without having had time to process them properly. This was his difficulty, if he were to speak for himself. It may be that other Members could competently begin to contribute, but he would have liked time to reflect about each and every detail and the reasons for the choices of those details in the amendments. The Committee had already been through this discussion, but he wanted his difficulty with engagement at this stage to be added to the record.
The Chairperson thanked him and said the Committee would come back to his concern.
Ms Mofokeng said that if he was going to go back to Dr Ndlozi, her concern would be the same. With regard to the document on the directives which Ms Newhoudt-Druchen had asked about, she did not think it was one which she could simply glance at and speak, as she had a number of questions to ask about the directives. She recalled that the Committee had had a number of challenges regarding the problem of parole. Looking at the confidentiality aspects and the statements and the rights of offenders, she felt that she now needed more time to go through them. Although the presentation was alright, the Committee had not digested it. She did not want to agree to something which she was not sure of, hence her lack of participation. The late submission had been a disadvantage -- she thought the Committee needed more time.
Ms Newhoudt-Druchen wanted to add on to what the other Members had said. The problem with agreeing to this Bill was that the Committee did not know what it was saying yes to, as it did not have the original Bill in front of it in order to observe where the amendments had been made. She needed the two in front of her and time to go through them, which she did not have then. She could not say 'yes' to the amendments without knowing what she was saying 'yes' to.
The Chairperson thanked the Members, and explained that these were the reasons why the Committee was so disturbed. To all intents and purposes, if the Committee had received the documents on time, it should have gone through the Bill clause-by-clause. The responsibility of passing laws and ensuring that quality laws were passed, was the responsibility of Members of Parliament (MPs). As such, what Members were raising was in all fairness to the voters that they served, because MPs wanted to apply themselves and have the best possible Bill coming out of this process. The Committee had been greatly disempowered, and the fight against domestic violence had been greatly disempowered, because each day the Committee postponed, the nation was being denied the tools that would have been at its disposal in the fight against domestic violence. This was why the Members were so disturbed.
The Committee would be forced not to proceed today, as he could not ask Members who had not been prepared to make far-reaching decisions that would bind the country for many years to come, without being thoroughly prepared, as it would be unacceptable to do so.
He proposed that the Committee schedule be re-worked. It had a bumper-to-bumper programme and each day that it did not process something, or where there was a change in the programme, created a knock-on effect. This Committee did not give Members the latitude of a day, and as it had lost a day, it may need to sit in an afternoon or evening.
Adv. Breytenbach strongly suggested making an application to the House to be able to sit in the afternoon.
The Chairperson said that the reworked schedule should be ready for the Committee by Friday. Next week, it would have to be in the House on 23 February for the BRRRs, as it was one of the Committees whose reports had not been adopted by the House.
He was not sure about Budget Day on 26 February. The Committee would be meeting with the Chief Justice, and then February would be over. The Committee would then have to apply not only for afternoons, but potentially for evenings as well, in order to gain back the time lost. The target was that by the time the Committee adjourned for the term, the three GBV Bills would be adopted or should be before the National Assembly (NA) as it had promised the nation after it could not finish the Bills last year, because it was waiting for legal opinions. The Programming Committee had given the Committee the deadline of the end of term for the passing of these Bills by the NA.
Ms Mofokeng agreed with Adv. Breytenbach, and said that the Committee should also have a legal advisor of Parliament to look at the proposed amendments to check whether they were in order, as it could not just accept the amendments by the Department without legal advice.
The Chairperson thought Dr Barbara Loots, Parliamentary Adviser, was in the meeting. He asked that the legal advisers work with the Committee closely on these Bills. The issue of appeals was one which she may not have given her opinion on. He did not think that her opinions had covered this. He thought that Ms Mofokeng was correct in saying that the Committee would need her assistance, as she had worked with the Committee and the Department. He said that the Committee should stop at this point of the processing of the Bills.
Committee Report on Correctional Services Amendment Bill [B32 – 2020]
The Chairperson asked that the Committee deal with the adoption of the report before the meeting was adjourned. He asked the Committee if he could take it as read.
The Members confirmed it was read.
The Chairperson asked that Members begin with corrections. There were no corrections, so he asked for a mover to adopt the report.
Ms Mofokeng moved to adopt.
Ms Maskeko-Jele seconded.
The Chairperson asked if there were any objections.
Adv Breytenbach said the DA reserved its position.
Dr Ndlozi said that the EFF also reserved its position.
The report and Bill were adopted.
The Chairperson said that on Friday, the Committee would meet to deal with the BRRRs and the reports of the Department of Justice and Correctional Services and the Office of the Chief Justice. Thereafter, the Sub-committee would continue with its work. He did not think it would take long for it to conclude the BRRRs, as they needed to be adopted by the House on 23 February. The Committee would meet at 09h30 on Friday.
Ms Mofokeng asked that when the Committee meets on Friday, the Chairperson begin by looking at the Committee's programme amendments and its suggestion that additional meeting times were needed.
The Chairperson said that looking at the revised programme would be the first agenda item, followed by the BRRRs, after which the Sub-committee would meet.
The meeting was adjourned.