Interception & Monitoring Bill: deliberations; Judicial Officers Amendment Bill; Criminal Procedures Second Amendment Bill: hear

Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
5 October 2001
INTERCEPTION AND MONITORING BILL: DELIBERATIONS; JUDICIAL OFFICERS AMENDMENT BILL; CRIMINAL PROCEDURES SECOND AMENDMENT BILL: PUBLIC HEARINGS

Chairpersons: Ms F I Chohan-Kota; Adv J H de Lange

Documents Handed Out:
Summary of Submissions on the Interception and Monitoring Bill
Submission by Mr K Nqadala, Regional Court President, Kimberly
Commentary of the Draft Judicial Matters Amendment Bill, 2001 by Graham Travers, Regional Magistrate, Pretoria
Submission of Independent Complaints Directorate (ICD)
Interception and Monitoring Bill [B50-2001]
Criminal Procedure Second Amendment BilI [B45-2001]

SUMMARY
Ms F I Chohan-Kota (ANC) chaired the early part of the meeting, which involved further consideration of the submissions on the Interception and Monitoring Bill.

The Committee heard submissions on the Judicial Matters Amendment Bill. Adv de Lange arrived in time to hear the submission by Mr K M Nqadala, Regional Court President Kimberly and Chairperson of the Lower Court Management Committee. Adv de Lange was not pleased with the submission made by Mr Nqadala and expressed a concern that all he had spoken of was the provision for parity between judges and magistrates in relation to magistrates. Adv de Lange stressed that the rationalisation process and the creation of a single judiciary had other goals as its motives, rather than simply the provision of parity between magistrates and other judges.

Mr G N Travers, Regional Magistrate, Pretoria, and a representative from The Association of Regional Magistrates of South Africa (ARMSA), also addressed the Committee. Mr Travers and his organisation were largely in favour of the amendments in the Bill, but had differing views on some matters.

The Committee heard submissions from the Internal Complaints Directorate (ICD) on the Criminal Procedure Second Amendment BilI.

MINUTES
Interception and Monitoring Bill
Clause 11
The Committee chaired by Ms F I Chohan-Kota (ANC), recommenced with the consideration of Clause 11 of the Bill. As before, the Committee identified that the Clause was highly problematic as it provided for the requirement that service providers could not enter into a contract with a customer unless they had taken steps to acquire information detailing the identity of the customer. The problem arose firstly out of the fact that it was not common practice for service providers to interact with the end-users at all and instead, it was the vendors or retailers that sold the services to their customers. The second problem was the problem of practicality. It would not be practical to expect street vendors to take down identity information. In addition and in the context of cellular phones, the existing cellular companies already had a pre-paid user base of over five million people, for whom they had no identity information. Collecting such information for these individuals would be a huge task that would cost an exorbitant amount of money

Mr Labuschagne, a drafter from the Department of Justice told the Committee that the above problems did not relate to contract phone owners as the cellular companies had all this information. Mr Labuschagne said that from a practical point of view, there would be vendors who would not have the resources to photocopy an identity book. Pre-paid cellular services were sold everywhere and if even the street vendor was included under Clause 11, then this informal industry would be cut down.

Ms Chohan-Kota asked if the word ‘dealer’ would be defined. Mr Labuschagne said the term would be defined but he would only feel comfortable doing so only under the guidance of the Committee.

Dr J T Delport (DP) told the Committee it would not be wise to bring into existence legislation that could not be enforced. In its present form the Bill would require its own police force just to see that it does not get transgressed. Ms Chohan-Kota recalled that Dr Delport’s concern was raised yesterday; that the course of action was fraught with difficulty and the Committee had only two answers to choose from. The first was to hold that the position or problem was too hard or impossible to deal with and to discontinue the present course of action. The second would be to legislate in the face of these difficulties in order to lay the groundwork for an effective system that would come about in the future.

Mr L T Landers agreed with Dr Delport somewhat because it would be hard to implement legislation in this area. However the fact remained that a paper trail had to be created, up to that point where it was practically feasible. This would mean that when Vodacom, for example, sold a phone to a bulk vendor, there needed to be a paper trail. Then when the bulk vendor sold that phone to a retailer, there needed to be a paper trail too. It was then when the retailer sold the phone to the end user that there was a problem with the creation of the paper trail. The same could be said for Sim cards but not really for airtime. Airtime was not a problem because one could not use the airtime without a phone.

Adv Masutha agreed with Mr Landers but differed in that he saw no problem at the end user stage. He believed that with the member of the public a paper trail could be created. Adv Masutha stated that cell phones had pin numbers, a code without which the phone wold not operate. The phone itself might be able to serve the purpose. In addition to requiring a secret pin code an additional requirement could be identity information to be entered onto the phone itself before it would operate. This would overrule the need for a paper trail.

Mr Labuschagne said that this was how the situation had been handled in Australia. In Australia however, the legislation regulating service providers was brought into existence long before the service providers came about. Because of their approach to the matter the Australians have a huge database which enables them to verify people’s identities physically, or even over the phone. The concern in South Africa is that no such database exists and it would thus be hard to verify the identities of users.

Ms Chohan-Kota pointed out that it would have to be done in spite of the difficulties because if pre-paid services were not included then a smart criminal would just operate using a pre-paid account.

Mr Mzizi (IFP) cautioned the Committee that whatever action it takes it must be sure not to render the technology unattainable. If someone’s identity information was on the phone, what would happen in the context of sale and transfer of ownership?

Adv Masutha addressed Mr Labuschagne’s concern that South Africa did not have a database such as in Australia. Such a database was not necessary, as this was not what South Africa was necessarily trying to create. What was needed was a paper trail.

Ms Chohan-Kota outlined the two possible routes that could be taken. The first was to place street vendors also under an obligation to channel identity information to a central place. The second was to place the obligation on the purchaser or cell phone user. The latter route would however have some policing problems.

Mr Labuschagne told the Committee that MTN had informed him that on a Saturday, MTN had fifty people verifying purchaser identity information. If this was the amount of work generated on just a Saturday, then the amount of work on a weekday, or annually must be staggering. Ms Chohan-Kota recognised this fact but in practical terms the vendor would be verifying that information over the counter at the time at that the phone is purchased. Mr Labuschagne submitted that this procedure would be easy to get around. Ms Chohan-Kota conceded this fact but was of the opinion that without this provision the loophole would just be too big.
Mr Landers commented that in the same way people knew they could not open a bank account without their identity book, that they could not get water or electricity without disclosing their full identity information, so too the position needed to be cultivated where it would be common knowledge that one could not get a cell phone without the service providers knowing exactly who you are. On the collection of identity information, Mr Landers submitted that it was the service providers who needed to compile this into a database that the State would then have access to.

Ms Chohan-Kota, contemplating the inclusion of the obligation to collect identity information, asked if such information would be included under the definition of call-related information, or whether that definition would have to be drafted wider. Mr Labuschagne stated that the present definition of call-related information would have to be drafted wider to include this concept. Mr Labuschagne however also directed the Committee’s attention to Clause 11(2), which would possibly remedy the present problem.

Adv Masutha on his suggestion and the problem relating to the verification of identities reminded the Committee that the Department of Home Affairs had a population register where everyone’s identity information was kept. He suggested that access to this database be sought so that the identification of individuals could be verified. Ms Chohan-Kota told Adv Masutha that the technology for such an arrangement did not exist. His suggestion was however a future solution to the problem. She added that if the Committee cast this in legislation at present, then the Clause would be held in abeyance until what had been legislated for became possible.

Adv Masutha made another comment saying that a cell phone still could not be purchased from a vending machine. To purchase a phone there would still have to be some human interaction. In light of this a standard form could be given to all vendors on which they would fill in the details of individuals who bought cell-phones from them. This situation would however then also require a vendor accreditation system.

Imam G Solomon (ANC) reminded that cellular phones were household items, easily obtainable by anybody. The fact was then that the Committee would not be able to create the ideal situation. The only logical way to approach the matter would be to look at what could be achieved and what could not. After this had been done the most the Committee could do was that which in fact was decided could be achieved. Imam Solomon submitted that what could be achieved was the collation of serial numbers of cell phones with identity numbers. This would be the only answer as even Sim cards could be put into different phones.

At this point Ms S M Camerer (NNP) became very passionate and emphatic about her view that the proposed solution was highly impractical. She submitted that Adv Masutha’s suggestion of giving street vendors forms to fill in was impractical and unrealistic. She submitted that the collection of identity information would not be possible by any other means other than through the formal sector. To believe that the informal sector was capable of doing this was an unrealistic expectation. She suggested that what be done is the examination of other jurisdictions to see whether others have been able to do what South Africa was trying presently to do. Were other jurisdictions such Australia, and the United States, with their advanced information processing capabilities, able to do this, and if so then how? It was utterly pointless to legislate in relation to things that could not be controlled, to legislate laws that could not be implemented. Ms Camerer stressed that the Committee needed to know if what they were seeking to do was even possible.

Ms Chohan-Kota, equally emotionally charged, told Ms Camerer that her concern had been identified in her absence in the meeting the previous day. In that discussion the Committee had identified the fact that the situation was one riddled with impractical difficulties. In light of this the Committee would only ever have two options. This would be to admit defeat, to admit that the situation could not be legislated over. The second would be to legislate despite these difficulties in order to lay a foundation for future effective regulation of the industry and also to limit the scope for criminality. In Ms Camerer’s absence the Committee had decided to go with the second option.

Ms Camerer told the Committee that she was in agreement with this but was concerned that the Committee needed to establish whether what they were seeking to do, could be done. The fact remained that the Committee did not have the information it would need to make an informed decision on whether Adv Masutha’s proposal was possible. Ms Camerer instead agreed with Imam Solomon’s view which was not in opposition to Adv Masutha’s.

Ms Chohan-Kota recalled that the Committee had heard from some that the regulation of the pre-paid market would not be possible. On the other hand they had heard from the South African Police Services that the regulation of the pre-paid market was crucial to the functioning of the Bill.

The Committee then moved to consider the submissions on Clause 11, the first of which came from Vodacom. Vodacom felt that the collecting of information relating to pre-paid users was impractical and furthermore that the obligation to supply information be placed on the customer. Mr Labuschagne told the Committee that this obligation would have to rest somewhere because the paper trail could not end at the user if the system was to work. This fact would apply especially in relation sale or transfer of ownership of any phone.

Mr Landers said that he felt the real reason behind Vodacom wanting to exclude the existing pre-paid user base was not so much a matter of practicality as it was to avoid bearing the cost. He reminded that the reason for the entire process was that cellular phones could be used as weapons and were at present being used to advance the interests of criminals. These considerations should not be forgotten when considering Clause 11.

Ms Chohan-Kota ended this section of the discussion, reminding Members that Clause 11 had only been discussed with reference to cellular service providers, the same would still have to be done from the perspective of the Internet.

Judicial Officers Amendment Bill
The Committee conducted public hearings on the Judicial Matters Amendment Bill. The first was Mr K Nqadala, Regional Court President, Kimberly and the second was Mr G Travers, Regional Magistrate, Pretoria and representative for the Association of Regional Magistrates of South Africa (ARMSA).

Mr Nqadala said the Bill would bring about many needed changes. He welcomed the situation where magistrates received their remuneration as a direct charge against the National Revenue.

On the membership of the Independent Commission for the Remuneration of Public Office-bearers (the Commission), he supported the view that no office-bearers should be part of this Commission. The Committee was presently headed by a judge, a situation that should not be. The exclusion of individuals such as judges from membership of this Commission came because of the feeling that magistrates’ best interests would not be seen to. He was not saying that all judges were adverse to the Magistracy, but these judges do exist. As a result it was proposed that other non-office-bearers be looked at to sit on this Commission. Mr Nqadala’s suggestion would see members of the legal fraternity sitting on this Commission in place of judges. He submitted that South Africa had a wealth of legal minds, many learned, many respected and many capable of the impartiality associated with judges.

At this point Ms Chohan-Kota interjected, pleading with Mr Nqadala to detract from his present discussion and instead to take his presentation back to his organisation and rethink the matter. Ms Chohan-Kota said that from what she had heard, she could tell that Mr Nqadala had only superficially considered the matter of the composition of the Commission. She added that the presence of lawyers on this Commission, with respect, would not be a wise move.

Mr Nqadala moved on to discuss other matters. He told the Committee that the move to a single judiciary was welcomed. The impression amongst the lower courts was that the lower courts were seen to lack legitimacy. Mr Nqadala submitted that lower courts needed to be afforded the respect that a court of law deserves. Related to this was the issue of salaries and the problem that there was a growing gap between the salaries of judges and those of magistrates. This situation needed to be addressed. There was also a problem of disparity between the remuneration of magistrates. This was a problem because if there was too big a difference then individuals would aspire to be judges. This would in turn lead to those individual acting or passing judgement in such a way that would get them noticed and ultimately promoted to judges. Mr Nqadala said this might be a perception or it might be a reality.

Remuneration levels between judges did vary, but not by more than ten percent. Between Magistrates there were relatively big disparities in remuneration. To remedy this, Mr Nqadala asked that Parliament legislate to do away with these growing gaps.

Mr Nqadala also told the Committee how Magistrates used to have parity with colleagues but were now lagging behind. Magistrates used to have the same salaries as the Deputy Director of Public Prosecutions but the two parted ways in 1998. Situations existed where Magistrates presided over a large amount of cases and had additional administrative work to do, yet failed to earn more than the senior prosecutor in his own office. The prosecutor earned just over R240 000 per annum while the Magistrate earned just over R210 000 per annum.

Discussion
Ms Chohan-Kota was concerned that Mr Nqadala had used the platform afforded him to discuss only matters of remuneration. She referred to his submission in which he had raised the fact that rationalisation had not taken place. She told Mr Nqadala that the ANC also believed this and that the establishment of a remuneration commission could not, and did not, deal conclusively with rationalisation. She said she could not understand why Mr Nqadala had not raised this, asking whether he did not think that firstly overall rationalisation should come about and only then should salaries be spoken about.

Mr Nqadala admitted that it was indeed a pity that their presentation preempted the proper period for discussing the issue of remuneration and that it revolved exclusively around this matter. He said there were other issues that he would like to address, such as the fact that he would like to see at least two magistrates on the Commission. These magistrates would be there to represent the interests of magistrates in the rationalisation process. This would be necessary because magistrates had a number of interests specific to their circumstances. Mr Nqadala submitted that he had also pushed for the doing away with of the practice whereby magistrates did not do the administrative work which they were presently burdened with. Some magistrates had been relieved of this duty and were now free to address the backlog that presently clogs up the magistracy.

Ms Chohan-Kota told Mr Nqadala that the Committee was apprehensive about a number of aspects in the Bill because these principles came from the Southwood judgement. This judgement was presently being appealed against and depending on the outcome, some of the aspects of the Bill might need to be changed.

Mr M A Mzizi (IFP) referred to Mr Nqadala’s written submission where he had made reference to benefits that judges got and that he felt magistrates should get comparable benefits. Mr Mzizi asked for some clarity on exactly what was meant. As he understood it, at least in the past, judges received motor vehicles and other benefits.

Mr Nqadala submitted that if one was trying to achieve a single judiciary and to create the impression of a judge, then as a starting point it would be wise to put magistrates on an equal footing with judges. Mr Nqadala said that magistrates had always been viewed as less legitimate than other judges and not as impartial. This misconception should be removed. It would thus be important to do away with the wide view that there were different status of judges and that magistrates were always striving or longing to become judges. Mr Nqadala submitted that magistrates were doing a lot of the work. In addition to this they had their administrative work. These factors in turn did affect the impartiality of the magistrate. Instead of being called judges, magistrates are referred to as public servants, and this was because magistrates did that administrative work referred to earlier.

Mr J H Jeffrey (ANC) on the composition of the Commission reminded Mr Nqadala that this Commission made recommendations on a wide range of public office-bearers, including MP’s. Mr Jeffrey explained that the logic behind this Commission was that individuals could not vote on their own salaries. To this end the Commission was headed by a judge, an individual recognised by the public as an impartial individual. He also mentioned that he was under the impression that Mr Nqadala had struggled in coming up with a reason as to why judges should not sit on this Commission. Mr Jeffrey recommended that Mr Nqadala go back to his organisation and discuss the matter some more. Mr Jeffry then added that another question would be whether it was good that judges and magistrates be in this Commission at all.

Mr Nqadala said the position had been examined and after some consideration, it was felt that judges should not sit on this Commission. Originally it was provided that office-bearers could not hold such a position and the judges would best not be tempted. Secondly, it was felt that although judges were arguably impartial, there were other categories of people who could fill that role.

Adv Masutha referred back to Mr Nqadala’s statement that there were disparities between the salaries of Magistrates. He alluded to the Magistrates Act which provided for a ranking system within the Magistracy. He asked whether Mr Nqadala had ever experienced any disparities in remuneration between magistrates of the same rank.
Mr Nqadala said he had not encountered such a situation.

Adv Masutha then explained that the Committee had been on a tour across the country, and visited different magistrates courts. The Committee saw that there were magistrates courts who did a lot of work and there were those who did very little work. In addition to this there were magistrates courts which conducted their affairs and did their work with much enthusiasm and there were those who nearly failed to operate at all.

Adv Masutha asked whether Mr Nqadala felt that performance should play a part in remuneration. That is whether factors such as qualifications, experience and performance should be considered when determining the salary of any one magistrate.
Mr Nqadala contended that where payment according to performance involved an assessment, magistrates would not be in favor of it. This is because magistrates would temper their judgements and tailor their work to fit a model that represents the best manner to please an assessor and not necessarily the best manner to make a decision.

Ms Chohan-Kota said that she would be courteous to Mr Nqadala where she knew her recently returned chair would not. Once again she recommended that Mr Nqadala reconsider some of his statements in consultation with the Lower Court Management. Committee. She reiterated that the presence of legal professionals on the Commission would not be desirable at all. Mr Nqadala seemed to want magistrates to be viewed as judges and referred to as such. At the same time he argued that he did not want judges on the Commission because they would possibly be biased towards magistrates. Judging from this Ms Chohan-Kota could see that the matter had not been canvassed properly.

Ms Chohan-Kota then handed over to Adv de Lange who had since returned. Adv de Lange told Mr Nqadala that he was one of the first people to start canvassing for a single judiciary. He said people were opposed to this and the crusade had not been easy one. Adv de Lange then became enraged and said that inputs such as the one he had just heard were embarrassing and negatively affected the campaign for a single judiciary. He thought that statements such as this indicated that perhaps magistrates were not ready to be part of a single judiciary, and that the whole matter should be held in abeyance until they were ready. He asked Mr Nqadala if he really thought being called a judge would result in the gradual reduction of the differences in salaries between magistrates and judges and the provision of similar perks.
Adv de Lange’s comments became increasingly heated as he said that the rationalisation of the courts were not about better remuneration and perks for magistrates. Statements such as these were an embarrassment to those who fought for a single judiciary. He then added that he did not want any comments or replies from Mr Nqadala.

Despite this Mr Nqadala insisted that he be able to reply to Adv de Lange and said that he was appalled by Adv de Lange’s statements and behavior. Mr Nqadala said Adv de Lange had no authority to question his integrity. He said that he could not be invited to come and speak and then be attacked in such a manner.

Mr G Travers, Regional Magistrate: Pretoria (ARMSA)
Mr G Travers presented his submission. The written submission had been prepared using the version of Bill as published, and some parts had changed due to changes to the Bill.

Mr Travers agreed with the inclusion of magistrates under a remuneration commission. He stated that it was only part of the rationalisation process. This was the model followed in Australia, the Union of India and Bangladesh to mention but a few.

On the issue of who should chair this Commission, Mr Travers said he appreciated Mr Jeffrey's sentiment but said it should be remembered that there was a possibility that judges might take into considerations other interests potentially adverse to the interests of magistrates. This was the reason why the position currently excluded office-bearers. This model was one based on the Australian one, where political officers and judges could not sit on such a Commission.
Instead remuneration is dealt with on an objective basis. Mr Travers said he could not support a reduction in the gaps of remuneration in legislation, as this would properly be done by the Commission. The Hoexter Commission Report laid down that there should not be gaps in remuneration so great between office-bearers that it creates the impression that one office-bearer aspires to be the another. ARMSA felt there was a much wider issue. The closing of gaps in remuneration and the provision of security of remuneration for magistrates was not so much for the magistrates themselves as it was to satisfy a constitutional imperative.

Adv de Lange asked why the Committee should do away with the qualification requirement relating to magistrates when the alternative had not yet been put in place. He was unhappy with the composition of the Magistrates Commission as it consisted largely of magistrates. This concerned him because some were asking that this Magistrates Commission be solely responsible for the appointment of magistrates.

Mr Travers responded that ARMSA did not agree with the complete removal of the qualification requirement. They did however suggest a reexamination of what the minimum qualifications should be in line with the aims of the overall rationalisation process. He also agreed that the selection of magistrates should be left entirely up to the Magistrates Commission.

Adv de Lange illustrated his concern by detailing the hypothetical situation where if the Magistrates Commission was exclusively responsible for the appointment of magistrates, then they could either make the requirements so stringent that nobody would be able to get. Conversely to this, for whatever reason they would be able to make the requirements so relaxed that every body would qualify to become a magistrate.

Mr Travers made the point that there were no minimum qualifications for judges. Instead these individuals were selected by the Judicial Services Commission. It would be ideal to have a similar system applied to the selection of magistrates as with the selection of judges. However, and notwithstanding his previous statement, at some levels, particularly regional Court level, it was highly desirable that any candidate should have a legal qualification.
Adv de Lange pointed out that the Magistrates Commission interviewed individuals and put them on a shortlist. Based on their recommendations and out of the shortlist, the Minister of Justice selects those candidates who will become magistrates. The Bill seeks to create the position where the Magistrates Commission makes the appointments and sets the qualifications. Adv de Lange asked what Mr Travers's opinion on this position was.

Mr Travers told the Committee that at present the composition of the Magistrates Commission mirrored the composition of the Judicial Services Commission. Adv de Lange interjected. He agreed with Mr Travers but added that there were only two judges on the Judicial Services Commission. He asked, despite this, who should be making these decisions and appointing the magistrates.
Mr Travers submitted that the concerns of all would be accommodated if the appointments were made on the advice of the Magistrates Commission. The Commission would nominate people who would go into a pool from which the magistrates would be selected. This process would provide for an element of discretion on behalf of that person making the ultimate appointment and on behalf of the Magistrates Commission. In addition to the element of discretion there would also have to be an element of competency. It is for this reason that the candidate should be acceptable within the parameters prescribed by the Magistrates Commission. After this process the Head of State or the Minister would make the appointments from the nominated pool.

Adv de Lange interjected and asked for Mr Travers to give him an example of where in the world the Head of State was responsible for the appointment of judges in the lower courts.
Mr Trevor, speaking under correction, submitted that this was the practice in Uganda and other North African countries. Adv de Lange told Mr Travers that in the most advanced countries this function was performed by the Minister of Justice. This was because the President could not be expected to consider and sign every appointment, every transfer and other matters relating to the appointment of magistrates.

Mr Travers said he had been misunderstood. He suggested that the Magistrates Commission be responsible for the consideration of applications and the narrowing down of the field to a shortlist. It was then from this shortlist that the Head of State would appoint the magistrates. This was the system applied in Australia. Adv de Lange acknowledged Mr Travers's statement but maintained that such a position would be impractical.

Mr Travers raised another concern when he submitted that lower and high court judges were public office holders as opposed to being any form of employee. This would in turn mean that the Labour Relations Act did not, and could not, apply to them. Adv de Lange interjected saying that he hoped this extended to strikes and go-slows. Mr Travers informed him that it did. To illustrate his point, Mr Travers referred to a Canadian judgement in which it was held that there were certain actions not permitted from judges. One of these was strike action. A Judge could not strike, place pressure on the Executive or enter into any type of argument or negotiation relating to remuneration. There could be absolutely no question of a labour relations type relationship between the Judiciary and the executive.

Criminal Procedure Second Amendment Bill
Independent Complaints Directorate
Johan Snyman commenced by outlining the reason for ICD’s submission, being that it had a statutory mandate to investigate all complaints against members of the South African Police Service as well as the Metro police. ICD’s major concerns were documented in paragraphs 3 1-6. ICD had in principle no objection to the Bill, yet noted that in practice plea-bargaining did occur, mostly for less serious offences. Their primary concern was with the possibility that the prosecutor would not consult with either the complainant or the investigating officer when doing so. The current Bill does indeed provide that the prosecutor must consult before plea-bargaining, but the judicial officer is not obliged to confirm that such consultation has indeed taken place. Such consultation is very necessary, especially for example for complainants relating to very serious offences.

Adv de Lange wasn’t clear what more the ICD wanted from the legislation since it was clear that it was mandatory that the prosecutor consults before plea-bargaining.

Mr. Snyman referred the committee to Subsection 5 especially 6(a) of the Bill concerning the enquiry that a judicial officer has to make and noted that the officer had to question accused in relation to confirming the plea agreement, the admission of allegations and that such admissions had been entered into freely and voluntarily. However it was not required that the judicial functionary inquire from either the prosecutor or the accused if the requisite consultation had been done.

Adv de Lange maintained that the prosecutor’s obligation to consult was imposed by the Bill and should same fail to take place then the plea bargain would be vitiated; the prosecutor’s actions would be irresponsible and illegal. He did not see a need for the judicial officer at this stage in the proceedings to make an inquiry.

Mr. Snyman said that ICD viewed this as a possible loophole, which could easily be remedied in the legislation. He continued that it was an inherent weakness of the accusatorial system, that prosecutors and accused may manipulate the system to put only certain facts before the presiding officer.

He continued to 3.6 of the ICD submission, which referred to S105 of the Bill and noted the contents verbatim.

Adv de Lange asked for clarity regarding the ICD’s modus operandi, particularly what function the ICD takes on when investigating a SAPS officer and questioned who for purposes of the process, the ‘investigating officer designate’ was, and who decided finally when to prosecute.

Mr. Snyman replied that in terms of their statutory mandate, ICD is authorized to investigate by the Minister of Safety and Security, and in that function exercises the same powers as SAPS. At the conclusion of an investigation, the Directorate of Public Prosecutions then decides to prosecute or not. If the prosecution goes ahead, then ICD will be the designate investigating officer for example as a witness in court.

Adv de Lange thanked Mr. Snyman for the explanation, as he was not aware of the procedures followed, and promised to take the submissions into account.

Mr. Snyman added that the submissions were based on real actual occurrences and cases. For example a case in Mpumalanga where the DPP decided to prosecute an accused on murder charges in the Regional court, but then two days or so before the court date, when ICD had gathered all the witnesses etc, ICD was informed that the matter would be heard in the Magistrate’s court and the charge had been diminished to culpable homicide, and that there was no need to call any witnesses. An urgent letter was dispatched to the NDPP and the matter was rectified i.e. proceeded in the first court on the higher charge.

Adv de Lange asked whether the ICD was similar to the IA (Internal Affairs) in the USA. Mr. Snyman confirmed this and noted that the ICD had even wider powers. Adv de Lange commented that at least they had some things right.
Mr. Snyman jokingly retorted that there appeared to be an exception in the case with the provision of funding. He continued that some very serious cases were referred to SAPS and ICD took on a supervisory/monitoring role. ICD was not part of SAPS and was an independent component, had a separate reporting system, though it shared the same Minister and it’s powers were regulated in terms of the SAPS Act.

Discussion
Dr Delport (DP) asked for the ICD’S reaction to a suggestion that prosecutors be defined as those who are specifically authorized by DPP and that authorization be limited to certain cases only. One could limit the wide powers of prosecutors by taking the experience of the particular prosecutors into account.

Mr. Snyman replied that the entire Bill depended on directives from the National Directorate of Public Prosecutions, none of which have been made known yet. In practice any decision to prosecute would first be passed by the NDPP, thus he took it for granted that the directives would say that SAPS investigations would be subject to confirmation of the DPP. The ICD did not object in principle to this.

Adv de Lange asked for further questions and when there were none concluded that the ICD’s suggestions seemed to be sensible. He queried why the Bill was left subject to directives of the NDPP and why the Bill did not spell out the general principles, with merely a provision for directive in the case where the same were required.

Ms Chohan-Kota (ANC) suggested that that was why the NDPP had not turned up in front of the Committee.

One of the drafters, Mr. de Lange, reported that the NDPP would make submissions at a later date.

Adv de Lange said that the Act must lay down principles and only then could directives be made in terms of the Act. He noted that the NDPP would make submissions the following Friday as well as the Human Rights Commission.

The meeting was adjourned.