ATC170614: Report of the Select Committee on Security and Justice on the Criminal Procedure Amendment Bill [B2B– 2017] (National Assembly – sec 75), dated 14 June 2017

NCOP Security and Justice

Report of the Select Committee on Security and Justice on the Criminal Procedure Amendment Bill [B2B– 2017] (National Assembly – sec 75), dated 14 June 2017:
 

The National Assembly referred the Criminal Procedure Amendment Bill [B2B– 2017] (National Assembly – Section 75) (hereinafter referred to as the Amendment Bill) to the National Council of Provinces for concurrence on 11 May 2017. The National Council of Provinces referred the Amendment Bill for consideration and report to the Select Committee on Security and Justice on 11 May 2017.

 

Subject of the Amendment Bill

The Criminal Procedure Amendment Bill, 2017 (''the Amendment Bill''), among others, emanates from the judgment of the Constitutional Court in the case of De Vos N.O. and Others v Minister of Justice and Constitutional Development and Others [2015] ZACC 21 (''the De Vos case'').  On 26 June 2015, the Constitutional Court declared section 77(6)(a)(i) and (ii) of the Criminal Procedure Act, 1977 (Act No. 51 of 1977)(''the principal Act''), to be inconsistent with the Constitution and invalid to the extent that it provides for the compulsory imprisonment of an adult accused person and the compulsory hospitalisation or imprisonment of children.

                                                        The Amendment Bill aims to amend the principal Act so as to provide the courts with a wider range of options in respect of orders to be issued in cases of findings that accused persons are not capable of understanding criminal proceedings so as to make a proper defence by reason of mental illness or intellectual disability.  The composition of the panels provided for in section 79 of the principal Act came under scrutiny in the Western Cape High Court case of S v Pedro [2014] JOL 32061 (WCC)(''the Pedro case'').  The Amendment Bill further aims to clarify the composition of the panels concerned in line with the Pedro case.

The Amendment Bill has a Constitutional deadline of 26 June 2017 for Parliament to complete its work.

 

LAMOSA[1] Judgment and the public participation process

The NCOP developed a practice note to address the shortcomings in the public participation process highlighted in the Lamosa Judgement that dealt with Section 76 Bills. The LAMOSA judgement dealt with the Section 76 process and did not test the Section 75 process. However, the judgment noted that it is incumbent on each house to facilitate public involvement in all legislation referred to it. The Constitutional process for Section 75 does not require the NCOP to receive mandates from the provinces, as a S75 Bill, by its nature, does not affect provinces directly. The Committee is required to enquire into the subject of the Amendment Bill and facilitate public involvement in the legislative process and does so by advertising the Amendment Bill for public comment.

The Committee advertised the Amendment Bill on 25 May 2017 in national as well as local newspapers in all the official languages calling for public comment on the Amendment Bill. The Committee received four submissions on the Amendment Bill. Three of the submissions did not address the subject of the Amendment Bill but the submission from Ms A Duncan was acknowledged by the Department as important but did not deal with the Constitution Court requirement at hand. The matters raised by Ms Duncan would require additional legislation to amend the principle Act.

 

Submissions received

 

INDIVIDUAL OR ORGANISATION

CONTENT OF THE SUBMISSION

1.

Private Individual: Vuyo Msizi

Submission highlights the need to involve more women and children in the processes as they are affected by the Amendment Bill.

2.

Private Individual: Matlala

Bill must be amended to protect witnesses and victims of crime, particularly to ensure the protection of witnesses from communities who may take the law into their own hands. The submission particularly highlights the need to protect whistle blowers.

 

The submission is therefore that the Amendment bill must be strong enough to protect whistle blowers so that citizens can report crime freely without fear of victimisation.

3.

Individual:

Michael Mondlhane

In regard to the criminal bill, if the death penalty could be returned we would have no killers and rapist who rape our children daily, drug dealers will be taken away from our streets.

4.

Anne Duncan

Questions she raises: What if there is no bed in the correctional health care facility?

 

Is there any intention to provide more facilities for the Mental Health needs of our society outside of a prison.

 

Recommendation: That communication between the courts and prisons specifically any reports from the District Surgeon is attended to in the appropriate hospital and that they don’t be allowed to sit in prison without treatment or the opportunity to stand trial.

 

Her Personal Experience:

 

In October 2016 my sister was arrested due to transgressing a Protection Order and landed up in Pollsmoor Prison Female Centre. The District Surgeon Dr Marianne Tiemensma report (as requested by the Wynberg Court) clearly reads that my Sister go for Formal assessment and included in her report is reference to a previous diagnosis of Bipolar. Dr Tiemensma also states in the report that my sister be seen by a visiting Psychiatrist. Two months after being in Prison my sister had yet to see the visiting Psychiatrist. I tracked down the visiting Psychiatrist to Pollsmoor, Dr Jaques Malan and gave him my sister's Prison Number and subsequently sent him a copy of Dr Tiemensma's report. Dr Malan did see my sister (once to my knowledge). Prior to me sending a report, he had not seen a report and I understand that there was nothing in my sister's Pollsmoor file. I obtained a copy of Dr Tiemensma's Report from the Prosecutor at the Wynberg Court after requesting a copy of the report. In various attempts to contact the authorities at Pollsmoor I have not been able to establish if they have seen a report.

 

Enquiry into the subject of the Amendment Bill

The Select Committee invited the Department of Justice and Constitutional Development to brief the Select Committee on the purpose and content of the Amendment Bill on 7 June 2017.

 

The Department of Justice and Constitutional Development addressed Ms Duncan’s submission and indicated the matter raised was substantive in nature and would require additional legislative amendments. The Amendment Bill before the Committee emanates from a High Court judgment that declared certain provisions unconstitutional. Parliament is required to consider correcting the provisions as indicated in the judgment and may not amend additional areas of the Criminal Procedure Act unless given permission to do so by Parliament. The Department indicated the amendments proposed by Ms Duncan would be considered and further legislation would be tabled in Parliament to remedy the matter.

 

The Select Committee would monitor the Department of Justice and Constitutional Development’s drafting of the amending legislation.

 

Consideration of the Amendment Bill

 

The Committee acknowledged the Constitutional Court imposed deadline related to this Amendment Bill but expressed its dissatisfaction with the length of time the National Assembly Committee processes take to complete the Bills, in general, on its agenda. This places undue pressure on the National Council of Provinces to meet any court-imposed deadline.

 

The Select Committee on Security and Justice having deliberated on and considered the subject of the Criminal Procedure Amendment Bill [B 2B-2017] (National Assembly – Section 75), referred to it, reports that it has agreed to the Amendment Bill without proposing further amendments.

 

Report to be considered.

 

 

 

 

 


[1] Land Access Movement of South Africa and Others v Chairperson of the National Council of Provinces and Others CCT 40/15

                      

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