DIAMONDS AMENDMENT BILL AND PRECIOUS METALS BILL

1. Thank you for meeting with representatives of the South African Police Service on 4 November 2005.

2. We have perused both the above Bills and wish to inform you that the Diamonds Amendment Bill [B27B-2005 (Reintroduced)] reflects the proposals in respect of law enforcement made by the SAPS.

3. The Precious Metals Bill [B30B-2005] unfortunately, does not reflect all the concerns made by the SAPS in the submission prepared for the Portfolio Committee: Minerals and Energy as welt as the letter dated 20 October 2005 which was submitted to you in Cape Town.

4. The outstanding concerns are as follows:

4.1.1 Consultation with the National Commissioner in respect of licences/permits:

We note that clauses 5,6,8,9 and 11 (except where a license holder transfers/extends his/her activities to a new premises) do not make provision for consultation with the National Commissioner of the South African Police Service. It is essential that the National Commissioner also be consulted in respect of the above licences/permits, i.e consultation before granting of the license/permit. These proposals are contained in the formal submissions of the SAPS to the Portfolio Committee.

4.1.2 Consideration of applications and principles of administrative justice: clause 6:

It is submitted that this clause does not provide for clear and comprehensive criteria in terms of which applications for licences/permits/certificates will be considered. No provision is, for instance, made for consideration of factors such as criminal records, mental condition, citizenship or insolvency. The mentioned criteria should be added to the equitable access and local beneficiation objectives of the legislation.

The above concern is also contained in the SAPS's formal submission to the relevant Portfolio Committee, but has not been addressed.

4.1.3 Powers of police to inspect, search and seize: clause 16:

In the letter of the SAPS dated 20 October 2005, which was submitted to you in Cape Town, it was noted that very little control is built into the legislation in respect of jewellers. No provision is made for inspections of jewellers by the Regulator, Department of Minerals and Energy and/or the SAPS.

The SAPS suggested that general inspection powers should be contained in this clause. The present clause only makes provision for criminal investigations and not for general compliance inspections to ensure that the provisions of the legislation are adhered to.

4.1.4 Entry and search of premises without warrant: clause 18:

Although the SAPS proposed that general compliance inspections could be done in consultation with, or on request of the Regulator, it is noted that clause 18(a) now, inter alia, requires the presence of an Inspector (of the Regulator) before a police official can act without a warrant to conduct a criminal investigation. This is not in line with what the SAPS have proposed. Inspectors of the Regulator have no interest/mandate in respect of criminal investigations and it is respectfully submitted that the SAPS cannot rely on the presence of Inspectors before it fulfills its constitutional duties. It is also submitted that there are a very limited number of Inspectors available which, in itself, will hamper criminal investigations. It should be noted that any police operation that is conducted without a warrant presupposes an emergency situation where there is no time available to act with a warrant. The requirement of an Inspector on the scene defeats the object of an operation which is conducted without a warrant.

The Diamonds Act No. 56 of 1986 (section 81) provides for general inspection powers at any reasonable time without a warrant. Section 81 has not been amended or repealed in the Diamonds Amendment Bill.

5. It would be appreciated if the above concerns can be addressed in the Precious Metals Bill. The SAPS would prefer that these concerns be addressed before the Bill is debated/adopted by the Economic and Foreign Affairs Select Committee of the National Council of Provinces on 8 November 2005. This will ensure that there is no need for officials of the SAPS to brief the Select Committee, if so approved by the Chairperson of the Committee.

6. Your assistance is appreciated.

Yours faithfully

DIVISIONAL COMMISSIONER: DETECTIVE SERVICE