Committee Report on Criminal Law (Forensic Procedures) Amendment Bill: adoption
Ad Hoc Committee on Criminal Law (Forensic Procedures) Amendment Bill
23 March 2009
Chairperson: Ms Maggie Sotyu (ANC)
Meeting Summary
The Ad Hoc Committee considered and adopted its report on the Criminal Law (Forensic Procedures) Amendment Bill, dated 23 March 2009. In so doing, the Committee reflected on its position on the processing of the Bill as well as its recommendations to the incoming Committee. A debate ensued that was highly charged in nature. This was about the Committee's inability to finalise this legislation within the time allocated in the current term, considering its importance and value in the review of the justice system and in the fight against crime. Some in the Committee felt that there had been inadequate time to deal with complex constitutional issues and the need for integrity measures. In addition, the South African Police Service, a key contributor, had failed to co-operate with the Committee by providing them with important details on their implementation strategy. Dr Delport of the Democratic Alliance was, however, convinced that the legislation could have been finalised in the course of the current term and argued that the Committee had become too preoccupied with implementation at the expense of law. It was agreed that the Committee Report would adopt the suggestion of Mr Swart of the ACDP that the Committee had found that the Bill was important in the fight against crime in South Africa and it was a crucial element in the revamping of the criminal justice system and the Committee was disappointed that the Bill could not be finalised in time. The Committee's Chairperson had earlier on, angrily dismissed the suggestion from the ACDP to record that there had been disappointment on the part of some members of the Committee that the legislation had not been finalised in the current term. She was joined in her objections by some ANC members who stated categorically that it was incorrect to suggest that certain members had been disappointed whilst others were not, when in fact all of them had not been happy.
Meeting report
The Chairperson thanked the members of the Committee for availing themselves despite a pressing schedule and the fact that Mondays are normally reserved for party study groups as opposed to committee work. A special request had been made to allow the Committee to consider its report. The Bill had been referred to the Committee in the second week of January and a specific deadline had been given for the Committee to deal with this Bill. It became obvious after consultations with stakeholders that it would not be possible to pass the Bill before Parliament's adjournment. She asserted that as a result of the public hearings in February and the issues raised by stakeholders that it became necessary to obtain additional information from experts in crime forensics. The Chairperson proposed to put forward each paragraph of the report for consideration by the members.Discussion
Mr Swart (ACDP) stated that he had been unable to attend the Committee due to other commitments. He referred to the Chairperson's assertion that “it was obvious from the outset that it would not be possible to finalise the Bill”. Perhaps clarity could be given in view of the 18 February minutes by PMG, though not an official record, which had stated that “ several members conveyed their disappointment that the legislation was not to be passed...” Mr Swart felt that there were genuine concerns about the delay in the finalisation of the Bill particularly in view of the fact that it was such an important strategy in the fight against crime. He asked if it could be put on record that there were members from all political parties, including the majority party that expressed their deep disappointment that the Bill had not been finalised. This needed to be captured in the Committee Report.
The Chairperson responded that it was unfortunate that Mr Swart had not been a part of the process which was why perhaps he did not know the reasons that the Committee was in the position it was on this day. It was unfortunate that those members who were not satisfied with the progress of the Bill had not made any contact with the office of the chair, preferring instead to go to the newspapers. The press would not assist in that regard as the Committee members were the only ones who could deal with the matter. Perhaps members would reflect on what had been said by Mr Swart as they considered each paragraph of the report and perhaps assist him due to his absence from the Committee during the processing of the Bill.
There were no suggestions for the amendment of page 1 of the report.
On page 2, Ms Van Wyk (ANC) pointed out that paragraph 2.3 the use of the word “detect” was possibly the wrong word to use and suggested that the word “ solve” could be more appropriate.
Ms C Johnson (ANC) commented on paragraph 4.1. She said that although a number of submissions had been received during the advertised period, many individuals in the MP’s constituencies or through correspondence had indicated their desire to comment on the Bill after the closing date for submissions had already passed. It would be important to record this in the report to give an indication that there was a lot of public debate on the Bill and that there had been many people who had wanted to comment even though the time available had not been sufficient for them to do so officially.
Ms A Van Wyk (ANC) suggested that paragraph 5 state that a number of concerns are in documentation plus responses available from the Committee Section which would assist the next Parliament.
Dr Delport (DA) began with an apology that he had been unable to attend due to other committee commitments. He indicated however, that he had been fully briefed on how the Committee had proceeded. He was concerned that it appeared as if the Committee's main concern had been about the implementation and not about the provisions of the Bill itself and he had found this to be somewhat strange since Parliament had to create the legal framework. A paragraph would have resolved the matter of how the implementation of the Bill should proceed. He had also been made aware of the Committee's reluctance to allow the private sector to also provide services in this regard, and this too he found was strange. The roll out strategy as it had been mentioned on more than one occasion, was in his view, an invalid argument. The question of how it would be implemented was not meant to be something that held back the law in itself. Lastly, the time had not been too short, the problem had been other commitments which were given priority. Parliament had not been sitting for a while now and the Committee could have sat for 3, 4 or 5 days if necessary in order to finalise this very important legislation. He requested that something of what he had now said be included in the report.
Adv Madasa (ANC) asked to put on record that it was quite clear from the beginning that all the members had been enthusiastic to push this legislation through. Despite the fact that this was a multi-party Committee, everyone had known that this was an important tool especially during election time. However, there were important issues that were important to resolve to ensure that the effectiveness of the Bill. If one recalled the history of the “Scorpions” experience, one of the main problems which eventually returned to haunt Parliament was a lack of clarification from the onset between the roles of Justice and the Police. That had been the problem with the Scorpions from the beginning. The question had been who bore the responsibility to monitor that institution. It could seem procedural but it was paramount to recognise this and ensure it was resolved upfront. Secondly, they did not have a problem with Justice and the Police working together in the drafting of the Bill but clarity was needed and that had not been provided. It would be necessary to have such clarity so that when it came to the implementation, Parliament would know whom to hold accountable should any problems arise. The distinction of who was responsible for what had been unresolved with the Scorpions' legislation and had come back to haunt the Committee in another piece of legislation aimed at fighting crime. Parliament had the benefit of hindsight now and one could not understand why they should fall into the same trap.
Ms C Johnson (ANC) added that from the onset there had been serious constitutional issues that had been raised which the Committee would have liked to explore fully if there had been more time available. Because there had been inadequate time to canvass these issues, they still remained outstanding and unresolved.
Ms Van Wyk (ANC) agreed with Adv Madasa and Ms Johnson and requested Dr Delport to refer to paragraph 7 of the report which dealt with, amongst other things, the human rights issues. She felt that it was an oversimplification to say that the Committee had been too concerned with implementation. It was not only because of implementation but also because of those constitutional issues as well as integrity measures that had to be put into place.
Mr Swart (ACDP) conceding once again the difficulty of not having been part of the process, once more quoted from PMG's minutes of 18 February that Ms Chohan-Kota (ANC) had referred to the possibility of Parliament sitting on the following day and had said that the Committee could have found time to pass the legislation. This had been in February and it did seem as if there had been time to consider these constitutional aspects and in hindsight, in view of the urgency of the Bill, he believed that the constitutional requirements could have been met. There had been a lot of time since then and one of the majority party members had pointed out the availability of a session in March to give them time to pass the legislation. There was a need, and this had not been covered by paragraph 7 of the report that members across party lines had expressed concerns specifically about the delay in finalising the Bill. At the very least there could be a paragraph to that effect.
The Chairperson responded that each member had the right to express a personal view and not the view of the collective, that is the party. Ms Chohan-Kota's statements were her own views. The Committee had resolved to take the matter further after submissions during public hearings. There was no way that legislation of this kind could be dealt with in a matter of 3 to 4 weeks. At the beginning it had appeared feasible but it became necessary to have consultations with the Police who had failed to report. The Committee had not heard anything from them in terms of how they planned to take this legislation forward. Having had experience with other pieces of legislation that the Police had failed to implement, it had been one of the concerns with this particular Bill.
Ms A Van Wyk (ANC) warned against the impression created that the PMG minutes were the official minutes of parliamentary proceedings. She submitted that the IFP was one example of an opposition party that felt that there had been insufficient time available and one therefore could not say that all members across party lines were disappointed by the failure to finalise the legislation.
Ms C Johnson (ANC) and Adv Madasa (ANC) suggested slight wording changes such as the substitution of “ownership” with “management” in paragraph 7.4.
Mr Swart (ACDP) once again raised the point of certain Committee members expressing their disappointment that the Bill was not finalised. He suggested inserting into the report a caveat that stated “ Whilst certain members were disappointed that the Bill was not finalised...”. Would the Committee consider this since, considering PMG's minutes, which although not formal minutes, clearly showed that members from the majority ruling party had indicated their disappointment that it was not finalised?
The Chairperson responded that Mr Swart could comment on his party's behalf but not on behalf of the ruling party. If there was a member within the ruling party who was dissatisfied, they were supposed to raise that within the ruling party. She therefore would not accommodate this issue of a member from the ruling party.
Mr Swart (ACDP) then asked if at the behest of the ACDP, a clause could be inserted to say that certain members of the Committee were concerned that the Bill was not finalised, considering that an ad hoc Committee had been appointed which in itself intended the Bill to be finalised on an urgent basis.
The Chairperson asked who those “certain members” were and stated that Mr Swart, who had been absent all along, could not come in at the last minute telling the Committee what to put into its report.
Ms Van Wyk (ANC) commented that she did not like the impression created that some members were disappointed whilst others were not. They were all disappointed but the bottom line was that there had been realities that had confronted them.
The Chairperson agreed with Ms Van Wyk that everyone was disappointed. For instance the issue of outsourcing had required comparison with other jurisdictions but there had been no time to visit the different countries.
Mr Swart (ACDP) responded that if that were the case, then it would be very easy to say in paragraph 7. 2 that “ the Committee found that the Bill is important in the fight against crime in South Africa and it is a crucial element in the revamping of the criminal justice system and it is disappointed that it could not be finalised on time. However time constraints hampered the Committee's progress on the Bill”.
The Chairperson agreed saying Mr Swart was 100% correct as this was precisely how they felt as a Committee.
Advocate Madasa (ANC) suggested putting in a recommendation that study visits would have to be carried out by the next Committee.
Dr Delport (DA), commenting with respect to paragraph 8.1, reiterated his earlier views that nicely summarised the Committee's concerns. These had been implementation, capacity - which was the same thing - and ownership of the database which was also implementation. It was only concerns about implementation and possible legal challenges. The law was the law and the Committee ought to have been able to deal with that in a matter of days with assistance from the Justice Department with all the access they had to national law. The legislation could therefore have been finalised
The Committee formally reported its report as amended. The meeting was adjourned.
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