At the outset it must be stated that the bill does not seem to address the shortcomings of the present legislation adequately, particularly in that it does not properly identify the role players and their functions and that it does not have enough and clear empowering provisions concerning the relocation of witnesses.
ROLE PLAYERS:
Sec 3(c) authorises the Director to utilise the services of competent persons, organisations or institutions in order to fulfil his duties, but the Bill has no provision that compels any such person, organisation, institution or other Department to carry out any requests or orders received from the Director or to fulfil any specific function.
The Director should not merely be permitted to make use of services rendered by other role players, but should also have the power to contract them to fulfil functions.
In the past we had tremendous difficulty in persuading the SAPS to fulfil certain functions. Although this issue may be addressed by regulations made in terms of Sec 16 (1)(d), it is still not clear to what extent the SAPS could be compelled to oblige.
The working relationship between the Director and other role players and the authority he may have, has to be defined in the Bill, otherwise the regulations may be ultra res.
The Bill has no provision for the protection of witnesses who are in custody, whether as sentenced or awaiting trial prisoners, and also lacks provision as to how the Department of Correctional Services could be directed to fulfil certain functions.
The welfare and well-being of protected witnesses has always been a headache, particularly since the Department of Welfare had been unco-operative. In the Western Cape we never received any assistance from that Department. The fact that this Department is considered to be an important role player must be embodied in the Bill, the very least, as part of regulations referred to in Sec 16, similar to Sec 16(1)(d).
The important role of the Attorneys General should also be clearly stipulated, since certain Attorneys General had in the past been very reluctant to fulfil any function. This reluctance may continue if their role is not clearly defined.
Irrespective of any threat analysis, a person should only be protected if he/she is an important witness or is related to such a witness. The Attorney General is the only person that can properly evaluate the reliability and importance of a witness in any given case, and therefore no person should ever be protected without the input of the relevant Attorney General.
It is suggested that Sec 5(2) concerning the composition of the panels be amended to include the important role of the Attorney General and that it could read:
"...protection panel consists of persons. of which at least one has to be a member of the personnel of the relevant Attorney General or a prosecutor delegated by him for that purpose...."
RELOCATION:
Although Sec 7(3) authorises the Director to relocate witnesses. the Bill does not include any provision concerning the execution of this function. not even in Sec 16. Sec l6(1)(g) and (h) cannot be interpreted to include this function.
Specific provision has to be made for an authority to employ, utilise or instruct others to assist with the relocation of protected persons. in particular a power to request and instruct any local authority to make subsidised or rented accommodation available within reasonable time for purposes of the relocation of witnesses.
The lack of such an authority has been experienced as one of the most crippling shortcomings of the present informal system in the Western Cape. Most of our witnesses are unemployed and live in rented accommodation owned by the local authority. In the past all our repeated requests for assistance have failed, even on a basis of a swop, because of our the lack of authority, long waiting lists and the easy excuse of the scarcity of such accommodation.
Although it is accepted that a local authority cannot be compelled to make such accommodation available immediately, it should at least be obliged to give priority to such a request. for example by putting such request at the top of any waiting list, and thus to comply with it as soon as possible.
It is suggested that provision be made in Sec 16 for regulations thereanent. and that the regulation should provide that the Director may request and may negotiate with any local authority, organ of State, or any public or private body or organisation to make accommodation available, be it subsidised or rented accommodation or otherwise, for the temporary or permanent relocation of protected witnesses or persons," and that it be further stipulated that such local authority organ of State, or any public or private body or organisation should prioritise such request, unless it provides satisfactory reasons in writing for its inability or reluctance to accede to the request.
3 SEC 5: WITNESS PROTECTION PANELS:
3.1 The wording of Sec 5(2)(b) is so confusing that the intention of the legislature cannot be determined.
A panel should be composed to deal with matters on a continuing basis, because it would not be possible to compose a new panel for each and every occasion. The factors referred to in the subsection should in any event be considered by the panel and the Director whenever a decision is made concerning protection, because they are relevant to the questions whether or how a witness should be protected, and not to the composition of the panel.
What is needed in stead is an authority to the panel and Director to employ on an ad hoc basis the services of persons with specialised knowledge in any relevant particular field, whenever the need for such assistance may arise, for example a psychiatrist or medical doctor. It may be added to subsection 4.
3.2 Sec 5(3) stipulates that the panel should consider the merits of each application for protection, but the section does not state what factors should be considered. It is suggested that subsection 3 be amended with a reference to the factors referred to in Sec 6(5). It would be a clear guideline to the panel about what the content of the report to the Director should include, and it would thus ease the task of the Director.
4 CATEGORY OF PROTECTED PERSONS:
The category of persons that could be protected in terms of the proposed Bill is at present in terms of Sec 6(1) restricted to a witness or "any member of his or her family or household." It is believed that such restriction is too narrow since it would have the result hat for example a secretary or close friend, that may be put under severe threat is per definition excluded from protection. Such a person cannot be considered as a member of the household. It is thus suggested that the phrase "or any person otherwise closely connected to such person" be included whenever reference is made to the category of persons to be protected. To do away with clumsy and cumbrous wording, it is suggested that "member of family or househoId" be defined in Sec 1 to include the phrase mentioned above.
5 TEMPORARY PROTECTION:
5.1 The provision in Sec 6(3) for temporary protection is inadequate since it only empowers the Director (and no one else) to grant such temporary protection. In many instances a member of the panel may be approached with regard to protection directly and due to a break of communications (long weekend etc.), the Director may only hear of the application long after protection became necessary. There has to be wider powers concerning temporary protection.
5.2 For unknown reasons Sec 3 does not specifically provide for the delegation of powers by the Director. (This is a lacuna that has to be corrected.) Sec 6(3) thus has to be interpreted restrictively. It is suggested that Sec 6(3) be amended to extend the power to grant temporary protection also to any person delegated by the Director for that function.
It is further suggested that such delegation be restricted to only a member of the Office, an Attorney General or a member of a panel. Such restriction would allow the Director to retain control and discipline and would avoid the repeat of situations where an investigating officer could arrange for an unimportant witness to spend a weekend in an expensive hotel.
5.3 It is further suggested that provision be made for emergency situations where the person empowered with the authority to grant protection is unable to grant protection timeously, or where he/she could not be contacted immediately'. for example due to transport problems or a telephone or cellphone battery failure. It has already happened that due to a real threat of immanent attack a family fled to the nearest police station where they had to be protected for more than 6 hours before the relevant officer could attend to their application.
It is thus suggested that it be provided that in an emergency, where the necessary protection cannot be provided for immediately by any person mentioned in subsection 3, the person to whom the report referred to in Sec 6(1)(aa) has been made, may refer the matter to any officer in charge of any police station or prison who should provide temporary protection in any manner without incurring any costs for the State, and who could. with the consent of the person or persons in need of protection, detain the said person or persons in protective custody in any police cell or jail for a period not exceeding 48 hours. The importance of such provision is that it does provide for immediate protection in emergencies, that it restricts the officer in charge with regard to costs and that it indemnifies the State against any claims arising from detention.
6 DISCHARGE BY DIRECTOR:
6.1 Where prosecution is still pending, the Director should not discharge a protected person before consultation with and proper notification to the relevant Attorney General, because it may jeopardise legal proceedings. The authority to take the final decision should vest in the Director, but he should not be empowered to take arbitrary decisions without consultation with the Attorney General, who may have inputs that could affect the decision and who should in any event be informed of the position of his witnesses. Sec 7(4) should thus be amended to include such provisionary clause.
6.2 There seems to be a lacuna in that the Bill does not specifically provide for the summary discharge of a protected person that grossly misbehaves himself to such an extent that his behaviour might jeopardise the safety of other protected persons or the local protection programme. Such misbehaviour is likely to be constituted as a failure to "comply with any obligation imposed upon him ...i.t.o. ... in the memorandum of agreement referred to in Sec 7(4)(c), but that may not necessarily be the case.
It is such an exceptional cause for discharge and it may necessitate such immediate action, that the Director may not have time to draft a written notice of discharge referred to in Sec 6(4). and thus it has to be provided for separately.
It is suggested that it be provided that the officer in charge of the protection of the misbehaving protected person, in consultation with a member of the relevant panel (unless he is a member himself), have the power to summarily discharge such person from protection provided that he reports the matter in detail to the relevant panel. Director and Attorney General within 48 hours.
6.3 A person whose application for protection has been refused or whose protection has been terminated by' the Director i.t.o. Sec 7(4) should not only have a right of "appeal" referred in Sec 8(1), but should also have a limited right to further temporary' protection in the form of protective custody, as described in the present Sec 185A of the Criminal Procedure Act. A person in real need for protection would be prepared to accept such an offer for a short duration of time. He would then be effectively protected and would not be able to misbehave to the detriment of other protected persons or the programme.
It should further be stipulated as the only temporary protection available pending the decision of the Minister, in order to avoid abuse by such persons who often on emotional grounds demand extended protection in hotels for the interim period.
7 PROTECTION OF WITNESSES IN COURT:
Sections 11 and 12 do not provide adequate protection to witnesses in court.
7.1 Please find attached recommendations forwarded to the Department in August 1996 concerning this subject. At that stage it was considered to be more expedient to have the Criminal Procedure Act amended than to have a new act drafted and promulgated. Nevertheless. the principles concerning the protection of witnesses in court contained in that document equally apply to the proposed Bill. It is of vital importance that the pre-trial physical and psychological protection of witnesses be extended to the courtroom and be supported and reinforced by protective court procedures.
7.2 The provision for in camera hearings is a necessity, particularly in gang related matters where the witnesses could easily be intimidated by the audience. Further, where witnesses may still be employed in the area or may want to return to the area after conclusion of the trial. it may be important for his/her safety not to be visually identified by the public (friends of the accused) in court. The provision may not be used regularly, but the need for specific provisions in either the Bill or the Criminal Procedure Act is a necessity.
7.3 The most serious objection to Sections 11 and 12 and Sec 153(2) of the Criminal Procedure Act is that they are in adequate since they merely authorise the relevant presiding officer to grant the relevant order applied for, and do not provide for more forceful relief. The result is that the onus would still be on the State (or Director) to convince the court of the merits of the application. Many applications i.t.o. Sec 153(2) have failed in the past because witnesses had to testify and motivate their fears. People are generally reluctant to admit in open public to their fears. frailty and vulnerability.
In the light of the seriousness of the offences involved and the prevalence of serious crime in our country, more forceful legislation to alleviate the burden on the State is necessary and justified. It is suggested that in all three instances the onus should be shifted to the accused to convince the court that the requested order should not be made. In all three instances the provision should read that the presiding officer should grant the order applied for, unless it is convinced by the party opposing the application that the interests of justice necessitate otherwise.
7.4 It should also be provided that upon a request by any of the parties, such disputed application should be heard in camera and further, that the presiding officer could for purposes of that dispute also temporarily exclude the accused from the hearing whenever dealing with particularly sensitive issues and where the presence of the accused may jeopardise those issues.
The following example could illustrate the need for this provision. If a witness resides in a place where he would be easily identified by family or friends of the accused if they were only allowed to attend the court proceedings, the motivation for his request for an in camera hearing of his evidence would make the exercise futile. The other grounds for his request, such as his fear for reprisal etc., could still be heard in the presence of the accused.
7.5 Provision for testifying under a pseudonym should also be considered. otherwise relocation in the same area would be futile.
8 SCHEDULE:
Corruption has become such an important obstructing offence in our justice system, particularly where policemen are involved, that it should be stipulated as an independent offence in the Schedule, and not be stifled by a monetary limitation of at least R200 000, as the case may be with fraud etc. Corruption is so serious that the monetary value involved is immaterial.
W C VILJOEN 26/03/98 (SENIOR STATE ADVOCATE)
RECOMMENDATIONS
AMENDMENT OF LEGISLATION CONCERNING THE PROTECTION OF WITNESSES IN TERMS OF A WITNESS PROTECTION BILL
1. The Amendment of section 153 of the Criminal Procedure Act to provide for in camera hearings where witnesses placed under protection are called to testify.
It is recommended that a new Section 153(5A) be inserted and it should read:
"(5A) Besides subsections (2) and (5), where a witness at criminal proceedings before any court is being protected in terms of the Witness Protection Act, Act of 1996, the Court may direct that no person, other than such witness, shall be present at such proceedings, unless such person's presence is necessary in connection with such proceedings or is authorised by court if convinced that such presence would be just and equitable.
Witnesses are often intimidated by the presence of a hostile audience. All the effort put into witness protection may be futile if the witness is not also protected in court. Though Section 153(2) may seem to provide for situations where witnesses are under threat, it is often an awesome task to persuade the court to order an in camera hearing. The purpose of the suggested wording is to alleviate the burden of the State.
2. Amendment of Section 154 of the Criminal Procedure Act to provide for the prohibition of publication of certain information relating to witnesses placed under protection.
It is recommended that the following new Section 154(3A) be inserted:
"( 3A) With regard to witnesses who have been or are being placed under protection in terms of the Witness Protection Act, Act of 1996, no person shall publish in any manner whatever, and at any stage before, during or after appearance in court, any information which reveals or may reveal:
(a) the identity of such a witness or
(b ) the place or the location of the place where such witness has been or is being protected,
unless the witness authorises the publication of his/her identity, and provided that a court or the presiding judge or judicial officer may authorise the publication of so much of the witness's identification as he may deem fit if he is convinced that the publication thereof would be just and equitable."
I would prefer to say "...if he is convinced that the interests of justice necessitate the publication thereof", but merely used the words "just and equitable" because it is generally used in the section. I feel stronger words should be used.
Prohibition of obligation of identity of such witnesses should be embodied in the Act and particularly the Criminal Procedure Act, rather than merely regulations.
Rather, I believe the penalty prescribed by Section 154(5) should be increased substantially since gangsters can easily afford R1 500. Simultaneously, provision should be made for increased sentence jurisdiction of the magistrate's court.
3. Amendment of Section166 of the Criminal Procedure Act or a section of the Witness Protection Act to protect witnesses against unfair cross-examination with regard to protection, the place where they were protected or the identity of other witnesses placed under protection.
The following enactment should be considered:
"A witness that has been on is being placed under protection in terms of the Witness Protection Act, Act of 1996, should not at criminal proceedings before any court be asked any questions in order to reveal:
(a) the circumstances under which such witness has been on is being protected;
(b) the place or places or the location(s) of such place(s) where the witness has been or is being protected, or any other information concerning where he/she has been resettled; or
(c) the identity of any other witness that has been or is being protected in terms of the said Act, provided that the presiding judge or judicial officer may allow questions about so much of such information as he may deem the interests of justice to necessitate and provided further that he is convinced that the said information would not jeopardise the safety of the said other witnesses."
I foresee that witnesses will be unfairly cross-examined on the conditions of protection and particularly, the other persons also protected under the programme. Cross-examination could be so abused as to destroy its purpose. We have to curtail unreasonable and unfair questions to protect our witness in court as well as the safety of others under the programme.
This protection has to be provided for in legislation (an Act) and not merely in regulations because it should be a substantive right of protection. The purpose of regulations should be to regulate or to prescribe the administration of rights or prohibitions embodied in an Act and not to create substantive law.
Since limitation of cross-examination is a procedural issue, I believe it should be dealt with in the Criminal Procedure Act. Since Section 166 provides for cross-examination it follows that any limitation to such a right should be embodied in the same section, but it could also be considered to be part of Section 210. Otherwise, since it concerns the protection of witnesses placed under the programme only, it could be dealt with by the Witness Protection Act itself.
W C VILJOEN
SENIOR STATE ADVOCATE
CAPE TOWN
WITNESS PROTECTION MEMORANDUM
(The following notes should be considered as an addendum to my previous memorandum dated 26/3/98)
PROTECTION OF WITNESSES IN COURT
Various innovative forms of protection of witnesses in the court room should be considered.
1 IN CAMERA HEARING:
(See par 7.1 of previous memorandum)
A new Sec 153 (5A) of Act 51 of 1977 could read:
"Besides subsections (2) and (5), where a witness at criminal proceedings before any court is being protected in terms of the Witness Protection Act the Court should upon an application on behalf of a protected witness direct that no person, other than such witness, shall be present at such proceedings, unless such person's presence is necessary in connection with such proceedings or is authorised by court if it is convinced by the party opposing such application that the interests of justice necessitates otherwise.
2 EXCLUSION OF SPECIFIC PERSONS FROM HEARING
It would often not be necessary to exclude all public from the hearing, but only specific persons that may pose a threat to the witness or may intimidate him/her in court. The following American example could be followed:
"In a few jurisdictions, legislation explicitly permits removing spectators who intimidate witnesses, or closing the courtroom to prevent witness intimidation. For example, in California the court may, after holding a hearing, order the removal of any spectator who is intimidating a witness if it finds clear and convincing evidence that
o the spectator to be removed is actually intimidating the witness,
o the witness will not be able to give full, free, and complete testimony unless the spectator is removed, and
o removal of the spectator is the only reasonable means of ensuring that the witness will give complete testimony.
This statute may not be used to exclude the press or the defendant from any part of the trial.
As of 1997, California prosecutors will also be able to request that a courtroom be closed during a witness's testimony if public testimony would endanger the person's life and if no other precautions -- such as disguises, weapons searches, or exclusion of individual spectators -- are sufficient to minimize the perceived threat.
The North Carolina State Code allows presiding judges to "impose reasonable limitations on access to the courtroom when necessary to ensure the orderliness of the courtroom proceedings or the safety of the persons present." The judge may also order spectators to be searched for weapons and their belongings inspected."
3 HEARSAY EVIDENCE
Applications i.t.o. Sec 153 of Act 51/1977 have often failed because the applicants were forced to testify to explain their fears and were then put through gruelling cross examination, which often intimidated them so severely that they did not have the courage to testify on the merits of the case any more. It is suggested that provision should be made for allowing hearsay evidence in support of the application, apart from the shifting of the onus mentioned above. It should be stipulated that the success of an application should not only depend upon the evidence of an applicant, that it would not be incumbent upon the applicant to testify at all, but that the court should be empowered to consider the matter on hearsay evidence adduced in support of the application.
A more lenient approach towards hearsay evidence is justified since such an application deals with procedure and not with the merits of the prosecution. It cannot have a direct effect upon the guilt of an accused.
4 IDENTIFICATION OF SPECTATORS
Other methods of control over spectators should be considered such as provision for an order that where such a protected witness testifies, spectators will only be allowed to attend the hearing upon proper identification of themselves and after a body search. Anyone who intends to intimidate a witness in court would be put off by such a measure.
5 VIDEO RECORDING OF SPECTATOR BEHAVIOUR IN COURT
A video recorder in court recording the behaviour of spectators in court would be so intimidating that no spectator would venture to misbehave and intimidate a witness by means of gestures, verbal comment etc. This should be done in conjunction with the prior identification of everyone on the gallery, as well as specific legislation providing for stiff sentences in contravention of any prohibition of intimidation in court.
6 EVIDENCE THROUGH CLOSED CIRCUIT TELEVISION
Another exception to the rule that criminal proceedings should be conducted in open court should be considered along the same lines as Sec 170A of Act 51/1977, which deals with the manner in which juvenile victims of sexual offences could give evidence through intermediaries and closed circuit television to be protected against the intimidatory atmosphere of the courtroom. See Sec 170A (3).
It is not suggested that intermediaries be used, but that the witness could be separated and screened off from the accused and public by means of a barrier of one way glass or by giving evidence through closed circuit television from a place where the witness would be at ease and would not be intimidated by presence of the accused or any spectator.
7 FURTHER PARTICULARS
The attempts to protect a witness could easily be thwarted by the defence demanding a full copy of the all statements of the witness even for purposes of a bail application. The identity and whereabouts of witnesses could often be concluded from such statements. It should be considered to stipulate that it would not be incumbent upon the State to provide full statements of such witnesses as part of further particulars, but that a factual summery of his/her evidence would suffice until the day of the hearing of such evidence.