Criminal Procedure Amendment Bill & Promotion of National Unity & Reconciliation Amendment Bill: briefing

Meeting report

SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
22 September 2003
CRIMINAL PROCEDURE AMENDMENT BILL; PROMOTION OF NATIONAL UNITY AND RECONCILIATION AMENDMENT BILL: BRIEFING

Chairperson: Kgoshi L Mokoena (ANC) [Limpopo]

Relevant documents
Promotion of National Unity and Reconciliation Amendment Bill [B34B-2003]
Final Draft of Criminal Procedure Amendment Bill [B57C-2002]
Briefing by Department on Criminal Procedure Amendment Bill (see Appendix)

SUMMARY
The TRC Amendment Bill provides for reparations to be made to communities as well, and not only to individuals, it allows the Minister to establish an Amnesty Committee to reconsider amnesty applications that have already been considered by the TRC and it allows the Minister to correct errors in any notice, proclamation or publication issued in terms of this Act. The Department stressed that this does not allow the Minister to amend the Final Report of the TRC. Members asked whether it was feasible to expect the applicant to bear the costs of the reconsideration and they were told that the Minister would be duty bound to assist, and the Department would have to deal with the poorer claimants .

The Criminal Procedure Amendment Bill introduces leave to appeal to the lower courts, and also replaces the current automatic right of appeal with the leave to appeal procedure. Members sought clarity on the functioning of the filtering mechanism introduced, and asked whether this would not prejudice potential appellants.

MINUTES
Promotion of National Unity and Reconciliation Amendment Bill
Mr Johan de Lange, Legal Drafter: Department of Justice and Constitutional Affairs, reminded Members that this Bill had been dealt with to a large extent in the previous meeting. The first thing the Bill did was made it possible for reparations to be paid from the President's Fund to communities as well, and not only to individual victims of human rights violations. This was in accordance with the President's statement in his State of the Nation Address earlier this year.

Mr de Lange stated that the more substantive amendments were contained in the proposed sections 47A-C of the Bill, and these were aimed at addressing concerns that arose after the Bill was tabled in Parliament. Certain issues came to light in two court cases after the dissolution of the Truth and Reconciliation Commission (TRC) and the Amnesty Committee (AC). The court held in the Niewhoudt judgment that the case of an amnesty applicant had to be referred back to the AC for reconsideration, because the AC had not applied its mind to the specific case.

The problem was thus that the AC had already been dissolved, and this would not be possible. The Bill addressed this matter by allowing the Minister to appoint an Amnesty Committee as well as any other committee that would need to be appointed to consider any issues that emanated from the matter that would have to be reconsidered. He stated that this was provided for in the proposed section 47B. Mr de Lange stressed that this did not however allow any new matters to be considered, but was limited to ad hoc matters on an issue that had already been decided on by the TRC.

Mr de Lange stated that the proposed section 47C granted the Minister the power to correct any correct errors in any notice, proclamation or publication issued in terms of this Act. This was necessary because in at least one instance the details regarding a specific victim were not correct, and a provision was thus needed in the principal Act that would allow the Minister to correct such technical mistakes. He stated that this provision was not applied to the Final Report of the TRC because it was regarded as a fait accompli, and any errors in the Final Report would have to be challenged in court. The Justice Portfolio Committee had added a resolution to this effect.

Discussion
Mr B Mkhaliphi (ANC) [Mpumalanga] stated that he understood the motivation for the resolution, but questioned the accessibility of this recourse to the courts for the prospective recipient. He stated that the costs that the person would have to incur in using that form of legal recourse, especially as it would be the poorer South Africans that would be seeking this recourse.

Mr de Lange responded that the principal Act currently provided that the Minister was the legal successor to the TRC. The Minister would thus be duty bound to assist, and the Department would have to deal with the poorer claimants.

The Chair asked how many people would benefit from the amendments.

Mr de Lange replied that the amendments were not aimed at those persons who have already been earmarked to receive reparations. The resolution taken by the Portfolio Committee was merely aimed at providing a solution should such a situation happen in future. He stated that the Bill was thus really being overcautious.

The Chair read the Motion of Desirability, to which Members agreed. He noted that Members agreed to the Committee Report on the Bill, and it has now been adopted by the Committee.

Criminal Procedure Amendment Bill
Mr de Lange cautioned that the Bill might look intimidating because it did contain very technical legal provisions. This was partially due to the fact that the Justice Portfolio Committee had the opportunity to redraft the concepts and the sequence of the provisions in the principal Act.

Mr Henk Du Preez, Legal Drafter: Department, briefed the Committee (see Appendix) which outlined the two essential amendments proposed by the Bill: firstly, to introduce the leave to appeal to the lower courts as well and, secondly, to replace the current automatic right of appeal with the leave to appeal procedure.

Discussion
The Chair asked how urgent the processing of this Bill was.

Mr Du Preez responded that Clause 8 stipulated that the Bill would come into operation on 1 November 2003, or on an earlier date determined by the President.

The Chair suggested that this Committee could disregard that date set by the Portfolio Committee because the Portfolio Committee itself had delayed its processing of this Bill and, as a result, this Committee had to process the Bill under some pressure.

Mr Du Preez replied that that date was not fixed by the Portfolio Committee.

Mr P Matthee (NNP) [Kwazulu-Natal] it was extremely difficult for Members to consider this Bill when they did not have a copy of the amendments before them. He stated that Members needed at least an opportunity to at least read through the Bill, and he was not in a position to comment on it at the moment.

Mr Du Preez responded that he would make copies available for Members.

Mr R Nyakane (UDM) [Limpopo] sought clarity what exactly was meant by the "filtering mechanism" introduced by the Bill. He asked whether this would not prejudice appellants.

Mr Du Preez replied that this referred to nothing else than the procedures in the proposed sections 309B and C. He stated that irrespective of the procedure to be followed, the person always had the choice to appeal against the decision or not. The principal Act currently provided for an automatic right of appeal, which would be lodged directly in the High Court. The Department assessed the role played by the automatic right of appeal in the administration of justice, and it found that this process actually resulted in many unmeritorious appeals. It was for this reason that the Bill proposed the introduction of the leave to appeal instead, coupled with the petition procedure.

This did not mean that individuals would be prejudiced by the leave to appeal procedure. The filtering mechanism in fact provided that the person had to apply for leave to appeal to the lower court which found him guilty of the offence. The lower court would then assess the application and, if the approved, the appeal would be heard in the High Court. Mr Du Preez stated that, should the lower court refuse the leave to appeal. The person would have a second opportunity and could approach the judge via a petition, which would contain the application to approach the High Court for an appeal.

Mr de Lange added that over the past nine years approximately 70% of the cases that have been taken on appeal have been turned down in the higher court. This meant that the High Court roll was completely clogged up with unnecessary appeals. It took the same amount of time to consider both valid and unmeritorious appeals, because the judge would not know at the outset whether the specific appeal was unmeritorious or not. The result was that even the valid appeals would have to wait two years before being heard by the court, because of the backlog.

He stated that the aim of the filtering mechanism was to deflect unmeritorious appeals, but in such a way that it did not preclude the people with "a reasonable prospect of success" from lodging an application for leave to appeal.

Mr Nyakane asked what exactly the phrase "may note on appeal without having to apply for leave to appeal" meant.

Mr Mkhaliphi requested Mr Du Preez to share the principles of the Steyn and Ntuli cases with this Committee. He asked what exactly happened in those cases that warranted these proposed amendments.

The Chair stated that the last two questions could not be answered due to time constraints.

The meeting was adjourned.

Appendix : Briefing by Department (based on Memorandum to B57B-2002)
The main object of the Bill is to introduce a sifting mechanism that will prevent the High Courts from being overburdened by unmeritorious appeals from the lower courts. The Bill attempts to achieve this whilst talung care to avoid the constitutional pitfalls that invalidated the previous "leave to appeal-procedure" , as set out in the judgment of the Constitutional Court in
the case of Steyn v the State 2000(1) SA 1146 (CC).

Section 302 of the Act, among others, provides that proceedings for review in the ordinary course are suspended in respect of an accused who appeals against a conviction or sentence and that the provisions concerned shall cease to apply when judgment is given in the appeal. Clause 1 aims to amend section 302( 1)jb) of the Act so as to highlight the newly introduced distinction between the appeal procedures for certain children and all other accused persons.

Clause 2 aims to amend section 309( l)(a) of the Act so as to provide that any person convicted of any offence in a lower court who wishes to appeal against the conviction or sentence must apply for leave to appeal against any conviction, sentence or order as contemplated in section 309B or 309C of the Act. The only exception provided for in this regard is that children who, at the time of the commission of the offence, were below the age of 14 years, or children between the ages of 14 and 16 years who were unrepresented at the time of their conviction in a regional court, who were sentenced to any form of imprisonment, may note an appeal without having to apply for leave to appeal as contemplated in the proposed new section 309B of the Act. Clause 2 further amends section 309(3A) of the Act so as to provide that appeals must generally be disposed of in chambers on the written arguments of the parties.

Clause 3 substitutes sections 309B, 309C and 309D of the Act, among others, to introduce application for leave to appeal (in the magistrate's court as provided for in section 309B) and petition procedures (in the High Court regulated in terms of section 309C) in respect of decisions by the lower courts.

As far as the leave to appeal procedure (section 309B) is concerned, the proposed new subsection (2)(bj provides that a transcribed case-record must be submitted in respect of an application for leave to appeal, where the application is heard by a magistrate other than the magistrate who tried the case. Subsection (,2)(b)contains a proviso in terms of which it will be sufficient if copies of only the judgments are submitted in those cases where legally represented persons were convicted and sentenced in the regional courts. The proposed new subsection (4)(a) provides that if an application for leave to appeal is granted, copies of the record and of all relevant documents must be transmitted to the registrar of the court of appeal unless the accused and the Director of Public Prosecutions agree that only some parts of the record are relevant to the prospective appeal. The magistrate who refuses an application for leave to appeal must record his or her reasons for such refusal in terms of the proposed new subsection (4)(b).

With regard to the petition procedure contained in section 309C of the Act. The proposed new subsection (4) provides that transcribed case-records must be submitted in respect of all petitions to the High Courts for leave to appeal. This subsection further contains a proviso in terms of which a copy of the judgment, which includes the reasons for conviction and sentence, will be sufficient where a lezally represented accused was tried in the regional court, if the accused and the Director of Public Prosecutions agree thereto, or if the prospective appeal is against sentence only, or if the petition relates solely to an application for condonation.

The amendment to section 309D of the Act aims to further regulate the obligation to explain certain rights to unrepresented accused in respect of appeal. legal representation and the correct procedures to give effect to these rights.

Clause 4 aims to amend section 3 15 of the Act to, among others, provide that certain appeals must be disposed of in chambers on the written argument of the parties.

Section 3 16 of the Act regulates the leave to appeal and petition procedures in the High Court and is amended by clause 5 so as to, among others, bring it line with the procedures contemplated in the lower courts as introduced by clause 3. Clause 6 aims to introduce certain consequential amendments to section 3 17 of the Act and clause 7 introduces certain transitional arrangements with regard to appeals in the Supreme Court of Appeal, the High Courts and the magistrates' courts.