NOTE ON THE FUNDS FOR VICTIMS OF VIOLENT CRIME BILL OF THE DEMOCRATIC ALLIANCE

1. PURPOSE OF NOTE

The purpose of this note is to provide comments on the Funds for Victims of Violent Crime Bill (the DA Bill), a private member's Bill, submitted by Ms Dianne Kohler Barnard of the Democratic Alliance.

2. BACKGROUND INFORMATION

The National Treasury has been requested to address the Standing Committee on Private Members' Legislative Proposals and Special Petitions (the Committee) on 24 August 2007. The Department (the DOJCD) (the Office of the Chief State Law Adviser) has attended a previous meeting of the Committee on this matter and has provided provisional comments. The National Treasury has requested the Branch: Legislative and Constitutional Development to participate in the discussions on 24 August 2007.

3. SUMMARY OF THE DA BILL

3.1 The objects of the DA Bill, as set out in the long title, are to "create a fund for the victims of violent crime; to prescribe the way in which the fund shall be operated, to define the powers, duties and responsibilities of the trustees of the Fund, and to lay down procedures for applications for payments from the fund".

3.2 Clause I sets out a number of self-explanatory definitions. In terms of this clause the Minister for Justice and Constitutional Development will administer the proposed legislation by virtue of the definition of "Minister". A victim is defined as any person who has been killed, suffered injury, physical, emotional or psychological as a result of violent crime. Spouses or minor children of those persons who have died as a result of violent crime are included. The crime must have been committed in South Africa and the perpetrator must have been found guilty under South African law. A violent crime is defined as murder, rape, indecent assault, public violence, terrorism, assault with intent to do grievous bodily harm, kidnapping or a combination of such crimes.

3.3 Clause 2 of the Bill establishes the Fund which will comprise of monies appropriated from all fines imposed as sentences in the courts, all forfeited bail money, any money appropriated by Parliament from time to time and any donations made to the Fund.

3.4 Clause 2(2) provides that all available monies in the Fund will be used for the purpose of the Act, notwithstanding anything to the contrary in the Public Finance Management Act, 1999 (the PFMA).

3.5 Clause 2(3) requires the Minister for Justice and Constitutional Development, in consultation with the Minister of Finance and after consultation with the trustees, to prescribe, among others-

"the details for the management of the Fund;

-the procedure relating to issues from the Fund to victims;

-the form in which applications for compensation shall be made; -the manner in which the accounts of the fund are to be kept".

3.6 Clause 3 sets out who may claim from the Fund. All victims of violent crime may apply for compensation. Persons who have received compensation are excluded. A victim who is unsuccessful in court in an action for damages arising out of a violent crime may also apply. So too can persons who were unsuccessful in claims for compensation in terms of the "TRC" process.

3.7 Clause 3(3) gives powers to the trustees to grant or reject the claim, and to supply reasons for their decisions.

3.8 Clause 3(4) and (5) deals with the manner in which the accounts of the fund must be kept and audited. Clause 3(4) provides that if a victim has been awarded compensation, he or she must cede his or her right to claim damages in law to the trustees.

3.9 Clause 4 sets out the requirements for appointment of trustees who will be remunerated in terms of a determination made by the Minister for Justice and Constitutional Development, in consultation with the Minister of Finance. One trustee must be a full time member. The trustees will be assisted by public servants.

4. CONCERNS REGARDING IMPLEMENTATION OF THE PROPOSED FUND FOR VICTIMS OF VIOLENT CRIME BILL

4.1 The DOJCD has had an opportunity to peruse the presentation of Treasury regarding the Bill and we fully support the submissions and the views expressed therein.

4.2 It would be fruitless to pass legislation of this kind without conducting extensive research to arrive at a reliable costing framework for the implementation of the legislation.

4.3 The Victims Charter, which has been endorsed by Cabinet and is in the process of being implemented, is a further factor to be taken into account in dealing with the treatment of victims of crime. The Charter deals with certain rights of victims, among others, the right to be treated with fairness and with respect for ones dignity and privacy, the right to offer information, the right to receive information and the right to protection. The right to compensation is one of those rights. Compensation must thus be seen in the light of holistic initiatives, such as the Victims Charter, in dealing with the plight of victims. The Bill does not take this into account. Legislation cannot deal with a social issue in a piece-meal fashion. It must take into account broad Government priorities, policies and initiatives.

4.4 The long term viability of the Fund as proposed in the Bill does not appear to have been considered, for example, clause 4 of the Bill proposes that victims who have been compensated, must cede their rights to the Fund. The question that arises is would the Fund then institute an action against the perpetrator? If so, what are the implications in so far as the institution of such claims is concerned? This would require huge resources to administer such work. This aspect is addressed in the Bill.

4.5 A crucial aspect lies in the conceptualisation of who can claim against the fund, i.e. whether a victim of crime will only be regarded as such a victim if a perpetrator has been tried and found guilty. This is the principle point of departure being proposed in the Bill. However, this would clearly fail to address the plight of a vast number of victims, bearing in mind that the number of reported crimes greatly outnumber the convictions.

5. CONCLUSION

The Bill is premature, as the Government should not commit itself on such a sensitive and comprehensive issue as this, without the benefit of further and more comprehensive research. The DOJCD is currently in the process of undertaking such research and developing comprehensive legislative proposals in this regard.