Criminal Procedure Amendment Bill; Protection of Personal Information Bill; Dangerous Weapons Bill: adoption; Jurisdiction of Kuruman High Court; Committee Reports

Meeting report

Criminal Procedure Amendment Bill [B26B-2012]: adoption
Ms Theresa Ross, DoJ&CD Principal State Law Advisor, reminded Members that during the last meeting, the main point of discussion was about retrospectivity. The question asked was why the Bill had not been made effective from an earlier date than 10 September 2010.  She explained that the reason the Bill had not been put into effect from an earlier date was that the matters in the Bill had not yet been identified as areas of concern. Before the Judicial Matters Amendment Act of 2008 came into operation, it was not obligatory for a record of proceedings in the High Court to be placed before the judges of the Supreme Court of Appeal.

Mr Lungisile Pakati, DoJ&CD Chief of Staff, said legal opinion had been made available at the last meeting on retrospectivity. He added that although retrospectivity was generally frowned upon there would be no prejudice, and there should not be any concern about the legislation.

Discussion
Mr A Matila (ANC; Gauteng) said it was important that the Parliamentary Law Advisors give the Committee input on the matter.

The Chairperson responded and said Parliament’s Law Advisors were attending another meeting, however there were officials present from the Office of the State Law Advisor.

Mr D Bloem (COPE; Free State)(Alt) said there was nothing else which Members could add to the matter.

Mr J Gunda (ID; Northern Cape) agreed with Mr Bloem that the Committee should accept the Bill as it stood.

The Committee agreed to the Bill without any amendments.

Notice in terms of section 2(2) of Interim Rationalization of Jurisdiction of High Court Act, 2001
Mr Jacob Skosana, Deputy Chief State Law Advisor: Policy Development, noted the briefing documents had already been circulated. He said currently there was the Interim Rationalization of High Court Act, No 41 of 2001, which was passed to facilitate the rationalization of State areas which needed to be included in the jurisdiction of the High Courts. High Courts however were still structured in terms of the rules process. Section 2(1) of the Interim Rationalization of Jurisdiction of High Court Act No 41 of 2001 provided for the Minister to determine the area of the High Court. The Minister had prepared a draft to change the area of Northern Cape to include Kuruman from North West. However, the High Courts in the area of Kuruman still fell under the jurisdiction of North West. The Heads of Courts and the Judicial Service Commission had approved that Kuruman be served under Northern Cape, however the last leg of approval still needed to come from Parliament. Effect was envisioned to take place on 1 August 2013.

Mr Matila said it seemed like the issue was about boundaries, and the provinces seemed to have efficiently dealt with the matter. He moved for the adoption of the Report.

Mr V Manzini (DA; Mpumalanga) seconded the move to adopt the Report.

The Chairperson said the Committee; having listened to the presentation would recommend to the House that the Committee approve the request by the Minister.

Deliberations on Dangerous Weapons Bill [B37B-2012]
The Chairperson said the Secretariat of the South African Police Service would brief the Committee on the definition it gave to ‘traditional weapons’; a discussion which was a continuation from the last meeting.

Mr J Stubbert, Legal Services: South African Police Service (SAPS), acknowledged that cultural practices needed to be taken into account and respected. He outlined the objectives of the Bill – one of which was to excuse matters of a cultural nature in Clause 2(b) of the Bill.

Clause 2 of Bill: Application of Act
2. This Act does not apply to the following activities:
(a) Possession of dangerous weapons in pursuit of any lawful employment, duty or activity;
(b) possession of dangerous weapons during the participation in any religious or cultural activities, or lawful sport, recreation, or entertainment; or
(c) legitimate collection, display or exhibition of weapons

Ms Bongiwe Lufundo, Principal State Law Advisor, said during the adjudication process on the Bill, the Office of the State Law Advisor had recommended that the Bill did not need to be referred to the House of Traditional Leaders, because it did not contain provisions on Customary Law. She referred to Clause 2(b) of the Bill which outlined that the Bill excluded the “possession of dangerous weapons during the participation in any religious or cultural activities” in its definition of dangerous weapons.

Discussion
Mr Nzimande said in the spirit of cooperative governance, Traditional Leaders needed to be safeguarded and respected in such matters. It was not right that the House of Traditional Leaders was not included in the discussion.

Mr Matila agreed with Mr Nzimande that no party should be excluded from being consulted. In one way or another, traditional leaders might be affected by such legislation. The Department therefore was urged to take such a matter into consideration in the future. He recommended that the Bill be adopted.

Mr Manzini seconded the approval of the Bill.

Mr Bloem asked to what extent police officials could use guidelines in determining a dangerous weapon versus a cultural weapon.

Mr Stubbert replied that an extensive implementation plan had been developed and approved as a guideline on the matter for police officers. The Bill as it stood, did not provide for members of the public to give an explanation when a person was caught carrying a dangerous weapons. The onus was then on the police to prove this if they suspected that the weapon would be used for unlawful matters. He added that similar concerns were raised in the Firearms Control Act: how to determine reasonable suspicion. He referred to Clause 3(2)(a-e) of the Bill and explained the factors which police members would take into consideration before making any arrests. The Clause was as follows:

Clause 3 of Bill: Prohibition of possession of dangerous weapons
2. In determining whether a person intends to use the object as a dangerous weapon for an unlawful  purpose, all relevant factors, including but not limited to, the following must be taken into account:
(a) The place and time where the person is found;
(b) the behaviour of the person, including the making of any threat or the display of intimidatory behaviour;
(c) the manner in which the object is carried or displayed;
(d) whether the possession of the object was within the context of drug dealing, gang association or any organised crime or any other criminal activity; or
(e) any other relevant factors, including any explanation the person may wish to provide for his or her possession of the object: Provided that this paragraph shall not be interpreted as an obligation on the person to explain his or her possession of the object

Mr Bloem said the onus was on the police to prove their case but it was not fair that in some cases a person could face being locked up until their case was heard in court.

Mr Stubbert said the same danger exists in every case. However, arrest was not always the first step which police officers could take, they could simply summon the person to state their case at a police station or take the person’s details and follow up on the matter.

Mr Bloem asked whether a definition of a ‘dangerous weapon’ could not be provided.

Mr Stubbert referred Mr Bloem to Clause 1, which stated that ‘dangerous weapon’ meant “any object, other than a firearm, capable of causing death or inflicting serious bodily harm, it is  were used for an unlawful purpose”.

Mr Bloem said the definition was vague.

The Chairperson asked what was missing from the definition.

Mr Bloem replied that the definition needed to be further explained.

Ms Lufundo noted the definition was read in context with the preamble of the Bill. The Bill therefore put in place guidelines for police officers to keep in mind before arrest. These were outlined in Clause 3(2)(a-e) of the Bill. These guidelines prevented a blinded discretion.

The Chairperson said these guidelines were there to protect the ordinary man in the street.

Mr Matila said the Committee needed to adopt the Bill and re-look at the concerns at another stage.

Mr Manzini said the definition was ok, however police officials needed to be educated and informed on the matter because they were too aggressive in their approach and in the manner they handled civilians.

Prince M Zulu (IFP; KwaZulu Natal)(Alt) said weapons such as ‘umkhonto’ (spear) needed to be included in the definition because they were part of African culture. All traditional leaders in the country therefore needed to be consulted on the matter.

Mr Nzimande pointed out the fact that after any traditional ceremony, many men and boys play with their shield and spears, some at very odd hours. How then could arrests in such cases be prevented? He asked that the implementation plan and the regulations to the Bill to be made available to the Committee.

Ms Sueanne Issac, Parliamentary Legal Advisor, referred Members to Clause 2 of the Bill and reiterated that the Act would not apply to cultural activities. Having a cultural weapon was not an offence; it was the intent/ suspicion to use the weapon to commit unlawful activity which was legitimate for arrest.

The Chairperson recommended to the Committee that the Bill be adopted without amendments.

Mr Bloem agreed that the Bill be adopted; however he urged that the regulations elaborate more on the matters raised.

Prince Zulu said the definition of a dangerous weapon was vague and needed to be re-looked at.

Mr Matila said it was important that the regulations, the implementation plan, and the training manual for the police be brought before the Committee to agree on.

Ms Lufundo said there was not an empowering provision in the Bill for the Minister to make regulations.

Mr Bloem said regulations needed to be drafted. The Bill could not be adopted while the Committee had concerns.

Mr Gunda agreed that the Minister needed to make these provisions available to the Committee.

Mr Bloem agreed that it should not be a big problem for the Department to provide a draft of the regulations.

Mr Manzini said the Committee needed to be clear on what exactly it wanted the Department to regulate; they needed to empower the Minister on what to do.

Mr Matila said the matter had been raised in the last meeting and none of the law advisors indicated that there were no regulations. The situation therefore needed to be remedied. The police training manual and the implementation plan however needed to be made available to the Committee.

Mr Bloem asked that the legal advisors provide a way forward before the matter was closed.

Ms Lufundo said regulations could be crafted and presented to the Committee; however the content from the Committee needed to be provided. What were the issues that Members needed placed in those regulations?

Mr Bloem suggested the Committee accept the Bill as it was and the regulations would be provided.

Mr Stubbert asked what enabling provisions were there for the Minister.

Mr Bloem replied that the issue was about carrying a cultural weapon at night – this was not clear and needed to be expanded upon.

Mr Matila proposed that the Members move on.

The Chairperson said the matter about regulations would be discussed at the next meeting.

Mr Nzimande said he disagreed with the Chairperson. This was a section 75 Bill (national competence only), so Members were not amending, and they were rather making suggestions.

Mr Matila said sufficient time had been spent on the matter.

Mr Bloem supported the Chairperson that the Committee should re-group and present the amendments at the next meeting; if there was an amendment.

The Chairperson said if the Committee failed to provide the Department with regulations to present to the Minister, the Bill would be adopted.

Mr Matila proposed that the Bill be provisionally adopted and if there was an amendment in next week’s meeting; it be added then. Parliament would be in recess soon and there might not be quorum.

Mr Bloem said the Committee should not leave the matter hanging and shift its powers to someone else.

Mr Nzimande said delegated legislation was part of the deliberations process. Regulations were a part of what delegated legislation did; it was done to strengthen legislation. It had nothing to do with delegated powers.

Ms Isaac agreed that Parliament was entitled to delegate powers to the Minister. However the issue now was what exactly the Committee wanted the Minister to regulate, since the Bill as it stood was very clear.

Mr Gunda agreed with Ms Isaac that the Committee needed to adopt the Bill.

Mr Matila seconded the adoption of the Bill.

Mr Bloem agreed that the Bill be adopted.

Mr J Bekker (DA; Western Cape) supported the adoption of the Bill.

The Chairperson said the Committee agreed to the adoption of the Bill without any further amendments.

Committee Report on 2013/14 South African Police Service Strategic Plan
Mr Gunda referred to the R4 billion which was spent on consultants and asked over how many years this money was spent.

The Chairperson replied the money was spent over three years.

Mr Gunda asked for a detailed explanation on how exactly the money was spent.

Mr Gurshwyn Dixon, Content Advisor, replied that the Auditor-General Report on the Use of Consultants was submitted early this year across the Cluster. The report explained that the money was in fact spent by the entire Justice Crime Prevention and Security cluster over a longer period than three years. A copy would be made available to Members.
Mr Gunda replied it was unacceptable that R 4billion was spent on consultants. This was a sign that the Cluster did not have a clear plan.

Mr Matila asked for a breakdown of the number of years over which the money was spent and the areas it was spent on.

The Chairperson said the Content Advisor would provide a complete breakdown to the Committee.

Mr Gunda asked about the progress SAPS had made in explaining the R341 million payout of a R412 million allocation, to a contract for the installation of a firearms control system. He proposed that the Department be taken on a oversight trip to Germany, where not even half that amount would be spent with the same results.

Mr Matila said it was not correct that R341 million had been paid out when the programme had not yet been implemented. The Committee should read the Auditor-General report thoroughly before considering adoption of the committee report. The implementation of the programme should have been in phases.

Mr Manzini asked if the firearms control system had been implemented or whether it was not yet functional.

Mr Nzimande asked whether the Committee was disputing the accuracy of the information, or whether the Committee was simply alarmed at the high figures.

Mr Gunda replied there was nothing wrong with the committee report, all questions and concerns raised by the Members were accurately captured. However, Members were alarmed at the high cost of consultants and the pay out of R 341 million for a system which had not yet been implemented.

Mr Matila said serious oversight work needed to be done by the Committee so that all concerns could be raised with the Minister.

The Chairperson reminded Members that in the last meeting, the Department said that they would avail themselves if there were any concerns.

Mr Bloem said the Department should be called in and that there were serious concerns with the ‘Recommendations’ in the report.

Mr Gunda agreed with the Members that the Department be called in. He urged Members to do oversight work on the R341 million payout and the use of consultants.

Mr Bloem suggested that the report be adopted and any concerns should be slotted into the Committee programme.

Mr Matila agreed with Mr Bloem that Members should deal with the report and its recommendations. Members needed to work towards curbing corruption.

Mr Dixon said the Auditor-General had responded to the matter of corruption in the report. The firearms control system was noted as being about 80% complete, however there were some disputes which had caused delays.

Mr Bloem proposed that the report be adopted. All other problems would be revisited. Mr Matila seconded the proposal. The Chairperson said the report was adopted.

Committee Report on visit to Groenpunt Maximum Security Correctional Centre in Free State
The Chairperson suggested that Members deal with the Recommendations in the report.

Mr Bloem said the fact that the Correctional Supervision and Parole Board (CSPB) was operating without a chairperson between 2005 and 2009 was unacceptable. He wondered how many delays came about as a result. He asked if a CSPB chairperson had since been appointed. He asked if they had appointed a Secretary, seeing that it lost its services in 2009. The Committee needed to give timeframes for these appointments.

Mr Gunda referred to 3.13 of the report and said the lack of management at the centre was an indication that the centre was in trouble and this resulted in the centre being a mess.

Mr Matila suggested that the Committee ask for a report on what had happened at the centre till now.

Mr Bloem proposed that the report be adopted. Mr Nzimande seconded the adoption of the report. The Chairperson adopted the Report with these recommendations.

Committee Report on Proclamations made in terms of section 25 of the Protection of Constitutional Democracy Against Terrorists and Related Activities Act, 2004, 12 June 2013
The Chairperson reminded Members that the deliberations on the report had taken place at the last meeting; however the report could not be adopted because there was no quorum.

Mr Matila moved for the adoption of the report. Mr Bloem seconded the move. The Chairperson said the report was adopted without any amendment. 

Protection of Personal Information Bill [B9B-2009]
The Chairperson said there were issues raised in the last meeting and the Parliamentary Legal Advisor was asked to advise the Committee.

Ms Isaac said the Committee had requested advice on the amendment proposed by the Financial Services Board (FSB) to Clause 38(2) of the Bill. The proposed amendment was supported by the National Treasury but opposed by the Department of Justice and Constitutional Development. Despite discussions on the matter, parties had not reached consensus. The FSB argued that Clause 38(2) was not far reaching enough in its processing information to the public and fulfilling its other functions. The FSB therefore recommended that the clause be amended to ensure that all its functions were catered for. The FSB proposed that ‘relevant functions’ be expanded on to highlight the FSB was a public body protecting its members against a variety of dishonesty, financial loss and malpractice. She added that the Committee could still accept the proposed amendment; however there was no need for it.

Mr Matila suggested that the Bill be adopted.

The Chairperson said there were some other proposed amendments and the Department should be allowed to give its opinion on the proposed amendments.

Mr Henk du Preez, Senior Legal Advisor, DoJ said the Department had met with the Council for Medical Schemes (CMS) and all their concerns were heard. The possibility of amending codes of conduct and amending certain areas of the Bill were sector independent and could not easily be accepted. The Department was therefore under the impression that the matter was resolved. A letter was submitted where the issue of children was raised and the definition of ‘child’ in the Bill was highlighted as an area which needed more clarity, especially when it pertained to the termination of pregnancy.

Mr Gunda proposed the adoption of the Bill. Mr Matila seconded the adoption of the Bill.

The Chairperson thanked the Members for their contribution and said the Bill was adopted without amendments.

The meeting was adjourned.