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.