LAW SOCIETY OF SOUTH AFRICA MEMORANDUM
IN RE DRAFT WITNESS PROTECTION AND SERVICES BILL

SUBMISSIONS ON BEHALF OF THE LAW SOCIETY OF SOUTH AFRICA BY THE CHAIRMAN OF THE CRIMINAL PROCEDURE COMMITTEE


1. A copy of the draft Bill headed "Witness Protection and Services Bill" and numbered B9-98 refers.

2. Historically, may I refer to the draft Bill which was submitted by the Honourable Minister of Justice to the Association of Law Societies on the 10th January 1997 (reference number being B-97).

3. Arising out of the provisions of the draft Bill, a Memorandum was formulated as per my letter of the 11th February 1997 a copy of which is annexed hereto marked "Annexure A".

4. Since the aforementioned draft Bill was considered the Independent Complaints Directorate has now been brought into existence under the provisions of the South African Police Service Act (No.68 of 1995), and this development has clearly and correctly been taken into account in drafting the present Bill under reference B9-98.

5. Section 185 of the CPA remains and I assume this is so to supplement the provisions of par. 6 of the new draft.

6. A further assumption is that the regulations may well be in the form of the regulations published in terms of Government Gazette No.14196 dated 31st July 1995 (Notice 2204).

7. The first and paramount problem that I feel as being of great importance is that a "place of safety" is presently in fact a prison (see section 7 of the regulations). This, in our view is most unsatisfactory and unacceptable for a number of reasons more particularly in that the inescapable situation is that the prisons are overcrowded.

8. It is in our view a priority to the practical implementation of this Act that a "place of safety" should not be associated in any manner or form with a "prison" and it is seriously submitted that proper facilities be provided for and be made available to make the envisaged detention for the safety of persons acceptable, the purpose being to get away from the concept of police or prison cells being appropriated for such persons thereby avoiding the stigma associated with incarceration in such facilities.

9. The object of the Act is not only desirable but admirable. It is submitted however that it would be self-defeating if implemented on the basis of the present form of detention as set out in existing regulations. One does not want to be put in a situation of putting the cart before the horse".

10. In terms of par. 5 of the draft Bill may I suggest that the number of persons on the panel be( stipulated as being no less than five or more than seven or alternatively that the number of persons be dealt with in the regulations, as well as the qualifications and ambit of experience of proposed members of the panels. It would, with respect not be acceptable to have "lay persons" on the panel.

11. In dealing with the provisions of section 7(1)(b) of the Act read together with the provisions of par. 8(1), should there in fact not be a period of continued detention provided for until the "Appeal" (as one might say) has been considered by the Minister against the decision not to provide protection. The release of the person in the intervening period may lead to grave consequences and prejudice to the person whose application for protection is refused.

12. In regard to section 12 may I suggest that the words "obliged to" be followed by the words "and prohibited from disclosing". ... This suggestion is made to be read in conjunction with the provisions of Section 15 of the Act (the Offence and Penalty section).

13. Insofar as Section 16 is concerned, my remarks in regard to the regulations in regard to the numbers and qualification of the members of the panel could very well be incorporated in the envisaged regulations more specifically than suggested in sub-par. (g) thereof.

14. Although no specific mention is made of the rights of an Applicant to be legally represented, may I suggest that insofar as the application for witnesses protection is concerned and more particularly in respect of a review if such circumstances arise that the Applicant would have the right to have legal representation and if he cannot afford legal representation, that he should be entitled to the appointment of an appropriate legal representative via Legal Aid and that the necessary arrangements be made for Legal Aid to incorporate the right and the duty to appoint a legal representative if the circumstances so arise.

15. Generally, the only other comment that can be made would be subject to viewing the proposed regulations which are envisaged and I trust that an opportunity will be given if needs be to deal therewith in due course.

"ANNEXURE A"
SNITCHERS ATTORNEYS-AT-LAW
11 February 1997


re: WITNESS PROTECTION PROGRAMME BILL, 1997
In acknowledging your letter of the 30th January 1997 with the draft Bill attached thereto, I considered that my starting point was to peruse Section 185A of Act 51 of 1977 as well as the regulations published pursuant thereto under Government Gazette No.14196 dated 31st July 1992 wherein was contained Government Notice No. 2204.

Regrettably, the regulations which will apparently follow on this Bill are not available and consequently although the prior regulations which certainly prove to be a valuable guideline, one is of necessity frustrated in being able to deal with the Bill in the absence of the new regulations which would have been of great assistance in determining the efficacy of the conceptual operation of the nature and terms of the new draft Bill.

What does arise out of the present regulations in terms of Section 185A is the perception that any person "detained" pursuant to the provisions of the Act as it is, would in all probability have been detained either at a police station and more probably in a prison. The atmosphere of such a detention for a person who voluntarily requires detention and protection to my mind starts off at a disadvantage and I trust that this aspect will be addressed in any new proposed formulation of the regulations providing for an appropriate place of safety. In this regard various aspects may crop up in regard to being able to identify such places by nefarious means and consequently needs to be addressed appropriately.

However, the formulation in terms of the existing regulations must in my view provide for a departure of such detention in circumstances which are alike to a police station or a prison.

The main thrust to my mind as appears to have been developed in the new draft Bill is for the establishment of a Director, and the establishment of appropriate panels with representation as envisaged in paragraph 3 of the draft Bill.

The formulation of the Director and the panel also clearly changes the goal posts as dealt with in paragraph 185 of Act 51 of 1977 where it would appear that power was given to the Attorney General to place a person under the program if he was of the view that such witness would abscond.

It does not appear as if the draft Bill deals with the provisions of this particular section. A comment in passing might be made that one of the problems that arises out of legislation is the length of the verbage utilised in such drafts more particularly when you have sentences that consist of a 100 words or more and which by reason thereof become extremely convoluted. This is an aspect that can be addressed in perhaps re-drafting certain provisions more succinctly and in more specific point form and I think of Sections 7(1) (the preamble) and 7(2)(a).

My perception of Section 7(6)(a) would perhaps incorporate a claim by a protective witness if he wishes to waive protection on his own volition - I trust that this perception is correct.

Insofar as Section 6 is concerned, I must assume that the regulations will provide for the size of the panel besides a chairperson and a representative of either the Attorney General's office or the chairperson of a commission. Such panel or panels should of necessity not be too large and should clearly be in communicable positions so as to provide easy access, easy gathering and speedy setting up of the panel for the purposes for which it is prescribed.

Again insofar as Section 6(3)(a) is concerned, the concept, situation and nature of the proposed place of safety should, in the writer's view make provision in the alternative other than police cells and prisons.

Bearing in mind the provisions of Section 7(7)(a) it would appear that a person who has been discharged has seven days to communicate with the Minister regarding the revocation of such discharge - in the meanwhile, the witness has been discharged - is not afforded protection -should this perhaps not provide that such notice must be given of discharge seven days prior to such contemplated discharge so that this aspect can be clarified before the person is released. Please read the provisions of Section 7(7)(b) and (c) in conjunction with the aforegoing.

In dealing with the provisions of Section 8 (the making of regulations) and bearing in mind the comments that I have made above relating to places of detention being police cells or prisons, it is my view that the regulations must make provision for such places of safety to be on a far more informal basis than the concept of a witness being detained in places where persons awaiting trial or arrestees or convicted persons would be kept.

The State, in my view will have to provide satisfactory places of safety and provide the appropriate finance in regard thereto.

The situation as set out in Section 9(4) would appear to give rise to a factual enquiry arising out of a trial of a person who is alleged to have contravened this particular section. This surely is an aspect that should have been clarified at the time by the panel/Director - I would like to be advised of other views in this regard.

It also comes to mind that once a person has been detained that there does not appear to be any specific control (other than the provisions of Section 9(5) to prevent a person from disclosing where such place of detention was - this could be subject to further intimidation which may well create fear in the mind of the person protected - however there does not appear to be any other suggestion which could afford the necessary confidentiality and secrecy which arises out of this aspect.

The Honourable Minister refers in his covering note dated 10th January 1997 as to the constitutionality of the provisions in Section 11. The provisions of Section 11 should certainly be dealt with by, in my view, the committees dealing with constitutional affairs as well as matters related to and arising from and/or out of aspects that deal with the rights of the free press. However, in terms of provisions of Section 11(1)(a), the nature of the application to be submitted by the Director is not clarified - would this be by way of appropriate documentation or would this be by way of documentation in camera? This will probably need to be addressed in terms of the regulations.

Insofar as Section 11(3) is concerned the words "or commission" should probably follow the words "criminal proceedings". An additional point that comes to mind is that paragraph 11(1)(a) seems to infer that the civil action would be against a witness who would be in the situation of being a Defendant - perhaps the wording should be changed to include "any party, witness or prospective witness". Furthermore, in terms of the provisions of Section 11(2) would it not be correct to suggest that the considered suspension of rights of access by a Judge should be with the participation of the Director in such action or considerations.

In the limited time available to me, this is my present input and trust that it will prove of some use or value.

NORMAN SNITCHER

Annexure B
WITNESS PROTECTION PROGRAMME BILL, 1997
6 May 1997


I refer to your letter of 10 January 1997 and apologise for the delay in only now responding thereto.

1 In acknowledging your letter with the draft Bill attached thereto, we considered that our starting point was to peruse section 185A of Act 51 of 1977 as well as the regulations published pursuant thereto under Government Gazette No 14196 dated 31 July 1992, wherein was contained Government Notice No R 2204.

2 Regrettably, the regulations which will apparently follow on this Bill are not available and consequently although the prior regulations which certainly prove to be a valuable guideline, one is of necessity frustrated in being able to deal with the Bill in the absence of the new regulations which would have been of great assistance in determining the efficacy of the conceptual operation of the nature and terms of the new draft Bill.

3 What does arise out of the present regulations in terms of section 185A is the perception that any person "detained" pursuant to the provisions of the Act as it is, would in all probability have been detained either at a police station and more probably in a prison. The atmosphere of such a detention for a person who voluntarily requires detention and protection in our view starts off at a disadvantage and we trust that this aspect will be addressed in any new proposed formulation of the regulations providing for an appropriate place of safety. In this regard various aspects may crop up in regard to being able to identify such places by nefarious means and consequently needs to be addressed appropriately.

4 However, the formulation in terms of the existing regulations must in our view provide for a departure of such detention in circumstances which are alike to a police station or a prison.

5 The formulation of the director and the panel also clearly changes the goal posts as dealt with in paragraph 185 of Act 51 of 1977 where it would appear that power was given to the Attorney General to place a person under the programme if he was of the view that such witness would abscond.

6 There is a perception of section 7(vi)(a) that would perhaps incorporate a claim by a protective witness if he wishes to waive protection on his own volition. This perception may be incorrect.

7 Again insofar as Section 6(iii)(a) is concerned, the concept, situation and nature of the proposed place of safety should, in our view, make provision in the alternative other than police cells and prisons.

8 Bearing in mind the provisions of section 7(vii)(a) it would appear that a person who has been discharged has seven days to communicate with the Minister regarding the revocation of such discharge in the meanwhile, the witness has been discharged - is not afforded protection - should this perhaps not provide that such notice must be given of discharge seven days prior to such contemplated discharge so that this aspect can be clarified before the person is released. Please read the provisions of section 7(vii)(b) and (c) in conjunction with the aforegoing.

9 In dealing with the provisions of section 8 (the making of regulations) and bearing in mind the comments that we have made above relating to places of detention being police cells or prisons, it is our view that the regulations must make provision for such places of safety to be on a far more informal basis than the concept of a witness being detained in places where persons awaiting trial or arrestees or convicted persons would be kept The State; in our view, will have to provide satisfactory places of safety and provide the appropriate finance in regard thereto.

10 The situation as set out in section 9(iv) would appear to give rise to a factual enquiry arising out of a trial of a person who is alleged to have contravened this particular section. This surely is an aspect that should have been clarified at the time by the panel/director.

11 It also comes to mind that once a person has been detained that there does not appear to be any specific control (other than the provisions of section 9(v)) to prevent a person from disclosing where such place of detention was - this could be subject to further intimidation which may well create fear in the mind of the person protected -however there does not appear to be any other suggestion which could afford the necessary confidentiality and secrecy which arises out of this aspect.

12 Two of the subclauses of clause 11 of the Bill may be open to constitutional challenge. They are clause 11(1)(a), which provides for the indefinite suspension of a civil action and clause 11(3), which provides for a hearing in camera where a person who is under protection in terms of the provisions of the Bill, is to testify in any court in criminal proceedings.

12.1 Clause 11(1)(a) of the Bill
12.1.1 Clause 11(1)(a) of the Bill provides that:
"Any pending civil actions against a witness or prospective witness shall be suspended if a Judge of the Supreme Court having jurisdiction in the case, on application by the director, deems it necessary for the safety of such witness or prospective witness".

The Bill does not state for how long the civil action may be suspended.

12.1.2 Section 34 of the Constitution of the Republic of South Africa, 1996 ("the Constitution"), provides that:
"Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum."

12.1.3 The indefinite suspension of a civil action in order to protect a witness, will infringe on the right to have a dispute decided before a court .The Constitutional Court dealt, inter alia, with the infringement of the right to have a civil dispute heard by a court, in Azanian Peoples Organisation (AZAPO) v President of the Republic of South Africa and Others 1996 (8) BCLR 1015 (CC). When AZAPO was heard, the Constitution of the Republic of South Africa, 1993 ("the 1993 Constitution") was still in force. Section 22 of the 1993 Constitution, provided that:

"Every person shall have the right to have justiciable disputes settled by a court of law or, where appropriate, another independent and impartial forum."

In AZAPO, the Court considered whether the granting of amnesty by the Truth and Reconciliation Commission constituted an unjustifiable infringement of section 22, as amnesty was granted in respect of both criminal and civil actions. The Constitutional Court held that the Infringement was justifiable, as the right of access to courts had to be interpreted in the light of the need to build the "bridge" to transformation provided for in the epilogue to the Constitution.

12.1.4 The Court held that the granting of amnesty in respect of criminal prosecution would be ineffectual if it was not coupled with amnesty in respect of civil claims arising from the acts disclosed in testimony before the Commission. The Court held at paragraphs 39 to 42, that the submission that indemnity should be extended to civil claims, was a forceful one. At paragraph 42, however, the Court held that the value of reconciliation justified the infringement of the right of access to the courts. The Constitutional Court, however, adopted the view that the infringement of the right of access to courts was not to be treated lightly. From this it may be inferred that such limitation will not easily pass constitutional scrutiny, especially where there is no specific right or constitutional provision to justify the infringement, as was the case in AZAPO.

12.1.5 Where the suspension is temporary, a litigant may still suffer significant prejudice Section 35(3)(d) of the Constitution provides that, in the context of a criminal trial, every accused has the right "to have their trial begin and conclude without unreasonable delay". We are of the view that a litigant in civil proceedings should equally enjoy a reasonable degree of finality in the matter of his litigation. A litigant may, for example, be seriously financially prejudiced where his action is indefinitely suspended.

12.2 Clause 11(3) of the Bill
12.2.1 Clause 11(3) provides that:
"Where a person who is under protection in terms of the provisions of this Act is to testify in any court in criminal proceedings, the court may, on request by the director or such witness, direct that such person shall testify behind closed doors and that no person shall be present when such evidence is given unless his or her presence is necessary in connection with such proceedings or is authorised by the court if the court is convinced that the interests of justice necessitate the presence of a specific person."

12.2.2 The provision that hearings may be held in camera, may also be open to constitutional challenge. Section 33(3)(c) of the Constitution provides that every accused person has a right to a fair trial, which includes the right to a "public trial before an ordinary court".

12.2.3 It is arguable that a witness may be entitled to protection in terms of the residual rights under section 12 of the Constitution, which provides for freedom and security of the person. However, even if such protection is justifiable, the interpretation of the wording of the clause presents other problems. The clause provides that "no person shall be present when such evidence is given unless his or her presence is necessary in connection with such proceedings". It is possible that the wording, which gives wide discretionary powers to the court, will lead to unequal application of the clause in practice.

Thank you for referring the Bill to us for comments.

ARNO BOTHA
DIRECTOR: PROFESSIONAL AFFAIRS