Judicial Matters Amendment Bill; Possible Amendment of the National Prosecuting Authority Act (Scorpions)

Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
3 October 2000
JUDICIAL MATTERS AMENDMENT BILL; POSSIBLE AMENDMENT OF THE NATIONAL PROSECUTING AUTHORITY (SCORPIONS)

Documents handed out:
- Possible Amendments of the National Prosecuting Authority Act (No 32 of 1998)
- Sections to be Amended by the Judicial Matters Amendment Bill [B63-2000]
- S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat 1999 (2) SACR 51 (CC)
- S v Dzukuda; S v Tilly; S v Tshilo 2000 (3) SA 229 (W)
- S v Manamenla and another 1999 (9) BCLR 994 (W)
- Legal Resources Centre Submission on amendment of the Attorneys Act in Respect of Law Clinic
- Extradition Treaty between South Africa and the United States of America
- Rome Statute of the International Criminal Court
- Explanatory Memorandum on Accession to Protocols on the International Covenant on Civil and Political Rights
[e-mail [email protected] for these documents]

Chairperson: Mr JH De Lange

SUMMARY
The Judicial Matters Amendment Bill seeks to amend or repeal certain provisions in a number of statutes. One of the more notable being the amendment to the General Law Amendment Act to remove the reverse onus provision and bring it in line with the Constitution.

Another one is the amendment to the Criminal Procedure Act to increase the power of police above a certain rank to release accused on bail. It is also sought to amend the Criminal Law Amendment Act to ascertain that the regional courts retain their jurisdiction to hear cases of rape and murder removing the uncertainty expressed in the Mdatjiece case.

The Law Society proposed amendments to the Attorneys Act to allow "attendance" of the course prescribed by the Act for admission of Attorneys to be done through correspondence. The Society also proposed amendments to adjust the composition of the Board of the Fidelity Fund.

A written submission from the Legal Resources Centre proposed amendments to the Attorneys Act to allow law clinics to be able to claim cost orders in respect of cases they do for their clients. The Committee agreed that the amendment was desirable.

The Committee plans to jettison the Directorate of Special Operations Bill to eliminate problems of constitutionality, jurisdiction and the lack of clarity regarding the line of command. Instead, the plan is to effect the revamped provisions of the Bill as an amendment to the National Prosecuting Authority Act, 1998. The altered version redefines the Scorpions as "the Investigating Directorate of Special Operations" situated within the National Prosecuting Authority. The emphasis is on giving the Directorate an investigative capacity with a notable scaling down of policing powers. The intelligence capacity that was in the Bill has been left out with an indication that it might be considered at a later stage if a need arises. At the moment the Scorpions will have to do with the help of the National Intelligence Agency.

MINUTES
Judicial Matters Amendment Bill
Mr Labuschagne of the Department briefed the Committee on the Bill:

Clause 1
Section 9 (2)(a) of the Magistrate's Courts Act, 1993, provided for magistrates to take an oath or make an affirmation only if they were permanently appointed as such.

Section 174 of the Constitution provides that all judicial officers before they begin to perform their functions must take an oath or affirm that they will uphold and protect the Constitution.

The Clause amends section 9 of the Magistrate's Courts Act to be in line with the Constitution. The Clause further amends the wording of the oath in the section to bring it in line with the one in the Constitution.

The Chairperson asked whether the Department is happy that the clause has the same strength as the formulation in section 9 of the Magistrate's Courts Act - as the former seems to have a different emphasis.

Mr Labuschagne replied that it is the same as provided for judges in the Constitution.

Clause 2
The Constitutional Court declared the reverse onus provision in section 37 of the General Law Amendment Act, 1955, to be inconsistent with the Constitution and invalid. The Clause amends the General Law Amendment Act, to remove the onus and insert the formulation of the Court so as to bring the section in line with the order of the Court.

Clause 3
This clause seeks to amend section 3 of the Interpretation Act, 1957, and substitute a definition of "law" to include the common law. Mr Labuschagne said that the Committee has on numerous occasions taken the view that "law" includes both statute and common law.

The Chairperson pondered over whether the Committee should adopt a resolution to say that the Law Commission should look at amending the definition of law in the Interpretation Act or say that when this Bill comes into effect the definition of "law" changes to include common law. This is because if this is not done it might create problems with interpretation since other legislation would be interpreted differently. It was agreed that this issue be flagged for later discussion.

Clauses 4, 5, 20, 21
Mr Labuschagne said these clauses should be viewed together. Clauses 4 and 5 provide for the repeal of the Stock Theft Act and clauses 20 and 21 provide for the repeal of the Game Theft Act and provide for the jurisdiction of magistrates' courts in respect of sentence. He said penal jurisdiction of the magistrates' courts is three years' imprisonment in the case of district courts and fifteen years' imprisonment in the case of regional courts. The amendments bring the jurisdiction of magistrates' courts in line with the above general penal jurisdiction of magistrates' courts.

Clause 6
[See after clause 10 below]

Clause 7
The clause amends section 72(1)(a)(ii) of the Administration of Estates Act, 1965, to substitute the expression "illegitimate child" with "a minor born out of wedlock".

Clause 9
Mr Labuschagne said section 60(1)(a) of the Criminal Procedure Act, 1977, (through a 1995 amendment) was formulated in terms of section 25(2)(d) of the interim Constitution, but the section was subsequently changed in the final Constitution by section 35(1)(f). However, section 60(1)(a) was not correspondingly amended. In the light of the decision in S v Dlamini when section 35(1)(f) came into place it required something positive to permit release. The amendment seeks to bring section 60(1)(a) in line with the Constitution in this regard.

Clause 10
Mr Labuschagne said the new constitutional dispensation renders the special superior court envisaged by section 148 of the Criminal Procedure Act, 1977 superfluous. The clause makes provision for the repeal of the section.

The Chairperson asked if the argument is that it is superfluous or is it also that it is unconstitutional.

Mr Labuschagne said it could be unconstitutional as section 35(3)(c) of the Constitution states that every accused has a right to a fair trial, which includes the right to a public trial before "an ordinary court".

The Chairperson drew Mr Labuschagne's attention to Chapter 8, section 166 in particular which provides that "The courts are…(e) any other court established or recognised in terms of an Act of Parliament, including any court of a status similar to either the High Courts or the Magistrates' Courts.

Mr De Lange replied that he has not come across any instance where section 148 of the Criminal Procedure Act has been used. He said the section creates the impression that the court is established for a particular case and it is the Minister's opinion that decides whether to create the court of not. He added that this is "old order formulation".

The Chairperson suggested that the clause should be flagged to be dealt with later.

Clauses 6, 8, and 11 to 14
Flowing from the repeal of section 148 of the Criminal Procedure Act are these consequential amendments to section 12 the Supreme Court Act, 1959; and section 1, section 315, section 316, section 317 and section 319 of the Criminal Procedure Act effected by these clauses.

Clause 15 and 16
According to the section 59 of the Criminal Procedure Act a police officer above a certain rank may set bail for the release of an accused for certain offences.

The clauses amend Schedules 2 and 7 to the Criminal Procedure Act by extending the power of the police to release an accused person in respect of certain offences on bail before their first appearance in a lower court. Mr Labuschagne noted that the provision will have financial savings for the Department as when prosecutors have to go out to set bail they claim travel allowance.

Clause 17
This amendment was at the request of the Law Society of South Africa. Section 15(1)(b)(ivA) of the Attorneys Act, 1979, requires applicants for admission as attorneys to "attend" a training course approved by the Society. The Law Society feared that the court may interpret the word "attendance" in the section as not equivalent to completing a distance education course.

The Chairperson asked Mr Labuschagne to bring the documents motivating for amendments from outside the Department for the Committee's reference.

Clause 18
This clause was also at the request of the Law Society. Section 28 of the Attorneys Act which regulates the composition of the Board of Control of the Fidelity Fund is amended by the clause so as to increase the number of members.

The Chairperson agreed that representation in the Board of the Fund needs to reflect the demographics of the profession regarding race and gender.

Clause 19
The clause amends section 33 of the Attorneys Act by increasing the quorum of the Board of Control to bring it in line with the proposed new number of members.

Clauses 20 and 21
[see clause 4 above]

Clause 22
The old Senate could designate 4 senators to the Magistrates Commission through a resolution adopted by two thirds of the members of the senate. The clause seeks to amend section 3(1)(a)(xi) of the Magistrates Act, 1993, in order to bring the designation procedure in respect of delegates to the NCOP as members of the Magistrates Commission into line with the designating procedure prescribed in section 178 of the Constitution. Section 178(1)(i) provides for four permanent delegates to the NCOP designated together by the Council with a supporting vote of at least six provinces.

Clause 23
The clause is a consequential amendment flowing from Clause 1.

Clause 24
The clause amends section 53 of the Criminal Law Amendment Act, 1997, to expressly provide for the regional court to retain its jurisdiction to try the offences of murder and rape referred to in Part I of Schedule 2 to the Act.

The Chairperson said the amendment flows from the uncertainty expressed in the Mdatjiece case.

Clause 25
The Chairperson asked the Department if they do not think this amendment to the National Prosecuting Authority Act should be effected in the National Prosecuting Authority Act now that the Committee envisages amending that Act.

Mr De Lange said this is not a significant amendment and it would not matter where it is effected.

Legal Resources Centre Submission
The Chairperson drew the members' attention to a document before them from the Legal Resources Centre. It proposes an amendment to the Attorneys Act, 1979, to permit the recovery of costs due to successful litigants who are clients of law clinics, and cession of such costs to law clinics. At the moment law clinics provide free legal advice to clients and they cannot claim cost orders.

The Chairperson said with the problems in the legal aid system it can help to have structures that do work free of charge. He said he is in favour of helping these structures as their only source of income is donor funding. Members agreed that the amendment was desirable. The Chairperson instructed the Department to request the Legal Resources Centre to forward the Committee a copy of the minutes of the forum where they agreed that they could claim such costs. He said the proposal would also be forwarded to the Bar Council and the Law Society for their comment.

Court Case Documents
The Chairperson urged members to read the cases handed out as they shed light to some of the amendments proposed.

Report of the Department of Justice
The Chairperson said Mr De Lange should take forward the matter of the report with the Director-General. In the meantime the Department should afford the Committee the draft report while they are awaiting the final report on all the problems in the Department including those of a financial nature.

Scorpion's proposed Amendment to the National Prosecuting Authority Act
The Chairperson stated that they are still awaiting the State Law Advisor's opinion on the conversion of the Directorate of Special Operations into an investigating directorate within the National Prosecuting Authority. In the meantime he had asked Mr De Lange to draw up amendments to fit in the right places in the National Prosecuting Authority Act. He said the principles in the Directorate of Special Operations Bill are basically the same.

Mr De Lange clarified that the document before the Committee was not a Bill but merely a copy of the National Prosecuting Authority Act in which the proposed amendments (to cater for the Scorpions) have been inserted for easy reference purposes. If these amendments are agreed to there would still be an amending Bill.

Preamble
Mr De Lange pointed out that the following paragraph was in the Act but it has just been moved up for emphasis purposes:
"AND WHEREAS the Constitution provides that the Cabinet member responsible for the administration of justice must exercise final responsibility over the prosecuting authority;"

He said the other two new paragraphs are from the Constitution. These read:
"AND WHEREAS the Constitution provides that the prosecuting authority has the power to institute criminal proceedings on behalf of the state, and to carry out any necessary functions incidental to instituting criminal proceedings;

AND IN ORDER to ensure that the prosecuting authority will have the necessary powers and infrastructure, to investigate certain specified offences:"

The Chairperson said the Constitution makes it clear that there shall be a single police force, prosecuting authority and intelligence. When the Scorpions were introduced they seemed to float in the middle. The intention is to give them an investigating capacity in the National Prosecuting Authority Act to remove the problems of constitutionality. This way it is clear there is a single prosecuting authority.

Table of contents
Mr De Lange said the necessary insertions are made here for the amendments that are proposed to be included.

Chapter 1 Definitions
Mr De Lange said the "Investigative Directorate of Special Operations" is defined as the Investigating Directorate of Special Operations established by section 7(1):"

He said the term "investigator" (defined to mean an investigator appointed under section 19A) is a broader concept.

The Chairperson said section 4 of the Act makes it clear that the prosecuting authority still remains with the National Prosecuting Authority. He said sections 7; 26(3) and 26A should be read together when one is looking at the issue of jurisdiction.

Clause 7
Mr De Lange said subclause (1), instead of saying the President may, makes certain that the Investigating Directorate of Special Operations is created in terms of the Act.

He said in subclause (1A(b) it was decided that "with the concurrence" was bad wording and it should instead read "on the recommendation".

Subclause (4)(iiA) is inserted to provide for investigators to assist the Investigating Director in the exercise of his or her powers and performance of his or her functions.

Subclause (4)(v) was requested by the National Prosecuting Authority because they felt that a person may not be needed for a particular inquiry but for a particular purpose or task.

Clause 11
The insertion here provides that instead of three, the President may appoint not more than four persons as Deputy National Directors of Public Prosecutions.

Chapter 3A Appointment, remuneration and conditions of service of investigators
Mr De Lange said the insertion of this chapter has been an attempt to follow the structure of the Act.

The Chairperson referring to clause 19A(b) said the provision for the appointment of an investigator as the administrative head of investigators removes the problems the Committee had with the line of command in the Bill.

Mr De Lange explained that clause 19B has been taken from the Bill as is. This provides for remuneration and conditions of service of investigators.

Chapter 5 Powers, duties and functions relating to investigating directorates
Clause 26 Definitions and application
Mr De Lange pointed out that he had added "and application" to the heading.

Subclause (1) provides for an "investigation" by the Directorate rather than an "inquiry". The Chapter was derived from provisions for the Office of Serious Economic Offences which in turn was copied from the British Office of Serious Fraud. This was a model based on a mini commission of inquiry that interrogated people and submitted a report. However in the Directorate, an investigation is contemplated.

The Chairperson said he is worried about the Hyundai judgement. He instructed Mr De Lange to look at the judgement to see if what was read into the Act in the judgement is effected here.

Mr De Lange said subclause (3) provides that this legislation cannot be interpreted as limiting the powers of the police in combating or investigating offences.

The Chairperson said the drafters should look at the use of the word "derogate" instead of "detracts".

Clause 26A Additional provisions relating to Investigating Directorate of Special Operations
Mr De Lange said since the committee is presided over by the President it is simply referred to as the Presidential Coordinating Committee instead of Ministerial Coordinating Committee.

The Chairperson said he is not sure that the use of "functioning" in (a) is accurate as policy is not made on how one functions but on how they exercise their powers.

He said "specific matters" in (b) should refer to "unlawful activities of a person" that may lead to an offence or which are an offence. He instructed Mr De Lange to ensure that the wording in the Act is broad enough to accommodate the wording of the proclamation.

Subclause (b) says if there is any uncertainty the Committee must determine who does what.

Mr De Lange said subclause (c) is to be redrafted to fit in with the proclamation since it specifies in respect of which offences the Investigating Directorate of Special Operations can undertake investigations.

Subclause (d) says the Committee should determine the procedure to be followed in referring or assigning a case to the Directorate.

The Chairperson said there would be a big dispute if the differing sides were left to decide a dispute between themselves as in the Scorpions Bill. It should be left to the Committee to decide this and then the disputants should be left to apply the decision.

The Chairperson said (d) should be reworked to cater for communication and transfer of information between the Directorate and police as they should also agree on those provisions.

He said a formulation that allows an "investigation of persons" should be used rather than the term "investigation of offences" to capture a concept broader than an offence.

Mr De Lange said subclause (2) is to be reworded to say whenever the President is unavailable instead of "absent".

The Chairperson said most of the work has been done on the proposed amendments - the big issue is to fine-tune the provisions on jurisdiction.

Clause 30A Powers and functions of investigators
An investigator's exercise of powers and performance of duties under the Act are subject to the control and direction of the Investigating Director.

The Chairperson observed that the provision has scaled down the powers of the investigators in the Bill such that they no longer have all the powers that a police officer has.

Clause 41 Offence and penalties
The Chairperson said the maximum period of three years imprisonment in subclause (1A) should be extended to 25 years.

Mr De Lange said it might be necessary to bring in transitional consequential provisions flowing from the proposed amendments.

The Chairperson said a commencement date might remedy the situation.

He pointed out that everything on the intelligence capacity of the Directorate has been taken out. At the moment the Scorpions work well with the National Intelligence Agency and it has been decided to leave out the provisions on the Directorate's intelligence capacity for now. These might be brought back if a need is seen for them in the future. The meeting was adjourned.