FRIDAY, 10 NOVEMBER 2000 __

          PROCEEDINGS OF THE NATIONAL COUNCIL OF PROVINCES

The Council met at 09:36.

The Deputy Chairperson took the Chair and requested members to observe a moment of silence for prayers or meditation.

ANNOUNCEMENTS, TABLINGS AND COMMITTEE REPORTS - see col 000.

                          NOTICES OF MOTION

Mr L G LEVER: Chairperson, I hereby give notice that I shall move at the next sitting of the Council:

That the Council -

(1) condemns the practice of quoting public statements out of context;

(2) in particular, censures the hon Bengu for quoting Professor Themba Sono out of context; and

(3) notes that the full passage in Professor Sono’s article reads as follows:

``One way to eliminate white racism would be to enforce the emigration of all whites by putting all of them on ships and sending them to Europe. But of course that is not on. A final solution is implausible, undesirable and impractical.’’

Mr K D S DURR: Chairperson, I give notice that I shall move at the next sitting of the Council:

That the Council -

(1) takes note of the latest research results of the Worldwatch Institute in Washington which spells out the horror that 24 million Africans are already infected with the Aids virus and that, short of a miracle, will die prematurely as a result;

(2) further notes that it was reported that Aids is likely to kill more people in Africa than died in World War II and that by 2010 life expectancy in South Africa will fall from 68 to 48, in Zambia from 60 to 30 and in Zimbabwe from 70 to 35 years; and

(3) consequently calls upon the Government to urgently redouble its efforts and to speedily produce a multidisciplinary plan which engages all sectors of society and government in a single concentrated national enterprise to cope with the plague and its consequences.

    ACTION TAKEN TO PREVENT CHILD NEGLECT BY COMPULSIVE GAMBLERS

                         (Draft Resolution)

Dr E A CONROY: Chairperson, I hereby move without notice:

That the Council -

(1) expresses its appreciation to the Minister of Trade and Industry and the National Gambling Board for the prompt and decisive action taken to prevent further neglect of children by parents while using gambling facilities, by launching an investigation into problem gambling and initiating a process of formulating a national policy in this regard, which will be aimed at encompassing all forms of gambling and not only the casino-based types of gambling;

(2) notes that the issue of child neglect at casinos is a symptom of problem gambling in that parents who are obsessed with gambling, neglect their parental obligations; and

(3) further notes that the youth of South Africa is our biggest asset and that the early steps taken by the Department of Trade and Industry to stamp out this problem, deserves our praise and support.

Motion agreed to in accordance with section 65 of the Constitution.

       DESIGNATION OF PETER MARAIS AS ``MAMPARA OF THE WEEK''

                         (Draft Resolution) Ms B THOMPSON: Chairperson, I move without notice:

That the Council -

(1) congratulates the Democratic Alliance mayoral candidate, Peter Marais, on his appointment as mampara of the week;

(2) notes that the remarks which earned him the above honour are consistent with the inane remarks he has made from time to time for political gain; and

(3) looks forward in great anticipation to his next silly and senseless comments.

The DEPUTY CHAIRPERSON OF THE NCOP (Mr M L Mushwana): Order! Is there any objection to the motion? [Interjections.] There is an objection.

Mr C ACKERMANN: Chairperson, on a point of order: I would like you to rule on the word ``mampara’’, whether it is parliamentary or not.

The DEPUTY CHAIRPERSON OF THE NCOP (Mr M L Mushwana): Order! I think that is a general term. It is not unparliamentary.

Mr C ACKERMANN: Well, then the hon member who moved the motion is the same.

The DEPUTY CHAIRPERSON OF THE NCOP (Mr M L Mushwana): Order! Mr Ackermann, you rose on a point of order and you did not do that. That is not on. If you rise on a point of order, and you are sincere about your point of order, you should deal with the matter in that respect. If you have any other issue, you should stand up in an orderly fashion and respect the decorum of this House. I will not take it. I will allow you any opportunity to address the House, but in an orderly manner.

In the light of the objection, the motion may not be proceeded with. The motion without notice will become notice of a motion.

                    UTTERANCES BY MR PETER MARAIS

                         (Draft Resolution) Mrs E N LUBIDLA: Chairperson, I move without notice:

That the Council notes -

(1) with growing concern the negative publicity and public outcry surrounding the DA’s mayoral candidate for Cape Town, Mr Peter Marais;

(2) that on 3 November 2000, members of the public through a public demonstration asked for Mr Marais’ resignation as MEC for Social Services following alleged remarks made to his former New NP colleague, Ms Freda Adams, where he called her ugly'' anda pain in the backside’’ amongst other things;

(3) that these allegations have had some dire consequences, some of which led to Ms Adams, a former MEC of Gender Equity, quitting the party, giving emphasis to the words of one of the protestors that Mr Marais’ comments ``undermined all the progress made in addressing racism and sexism’’; and

(4) with dismay that a public official such as Mr Marais would at a meeting in Mossel Bay, publicly denounce all the hard work that parties across the political divide actively participated in, namely the construction of our new Constitution, and that his derogatory statements deserve public censure and some kind of punitive action.

The DEPUTY CHAIRPERSON OF THE NCOP (Mr M L Mushwana): Order! Is there any objection to the motion? [Interjections.] There is an objection, and in the light of the objection the motion may not be proceeded with. It will therefore be recorded as notice of a motion.

        WELCOMING OF NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS

                         (Draft Resolution)

The CHIEF WHIP OF THE COUNCIL: Chairperson, I move without notice:

That the Council -

(1) recognises the presence of the National Director of Public Prosecutions, Mr Bulelani Ngcuka, in the Council; (2) acknowledges, affirms and recognises his contribution in the past as Chief Whip of the Council, as well as Deputy Chairperson, and his wonderful contribution to the development of this institution;

(3) further recognises his sterling contribution as National Director of Public Prosecutions; and

(4) therefore extends a warm welcome to him.

We would have asked him to take his old seat, Chairperson, but the Rules would not permit that. [Applause.]

The DEPUTY CHAIRPERSON OF THE NCOP (Mr M L Mushwana): Order! I am not sure whether this is a motion, but I also take this opportunity to welcome the honourable National Director of Public Prosecutions in our midst and to wish him well. We recognise his presence.

Motion agreed to in accordance with section 65 of the Constitution.

     PRONOUNCEMENT OF PREMIER GERALD MORKEL ON SEXUAL HARASSMENT

                         (Draft Resolution)

Mr D M KGWARE: Chairperson, I move without notice:

That the Council -

(1) notes -

   (a)  with dismay that in a public interview on television this week
       Premier Gerald Morkel dismissed the allegation of sexual
       harassment brought by Ms Freda Adams because she was not
       ``physically touched'' by the perpetrator;


   (b)  that Premier Morkel shows a shocking ignorance of what
       constitutes sexual harassment; and


   (c)  with outrage that a senior public official failed to understand
       that sexual harassment includes the making of sexually offensive
       remarks by the perpetrator to the victim; and

(2) calls on Mr Morkel to resign because he does not display the capacity needed for a premier. The DEPUTY CHAIRPERSON OF THE NCOP (Mr M L Mushwana): Order! Is there any objection to the motion? [Interjections.] The motion is objected to. In the light of the objection the motion may not be proceeded with. The motion without notice will become notice of a motion.

             SMEAR CAMPAIGN AGAINST WESTERN CAPE LEADERS

                         (Draft Resolution)

Mnr C ACKERMANN: Voorsitter, ek stel voor sonder kennisgewing:

Dat die Raad -

(1) kennis neem van die ANC se persoonlike aanvalle op en smeerveldtogte teen DA-burgermeesterskandidaat, mnr Peter Marais, asook teen die Premier van die Wes-Kaap;

(2) meen dat die ANC dit doen in die lig van die feit dat hul eie kandidaat vir die burgermeesterskap in Kaapstad, mev Lynne Brown, ‘n onbekende kandidaat is en nie oor die bevoegdhede beskik om ‘n burgermeesterskandidaat vir enige stad in Suid-Afrika te wees nie; en

(3) verder kennis neem dat, as gevolg van die ANC se gebrekkige uitvoering van hul beleid op grondvlak, veral op munisipale vlak, hulle hierdie soort persoonlike smeerveldtogte teen leiers in die Wes- Kaap voer, ten einde hul eie saak te bevorder. (Translation of Afrikaans draft resolution follows.)

[Mr C ACKERMANN: Chairperson, I move without notice:

That the Council -

(1) notes the ANC’s personal attacks on and smear campaigns against the DA mayoral candidate, Mr Peter Marais, as well as against the Premier of the Western Cape;

(2) is of the opinion that they are doing it in the light of the fact that their own candidate for the mayorship in Cape Town, Mrs Lynne Brown, is an unknown candidate and does not have the competency to be a mayoral candidate for any city in South Africa; and

(3) further notes that, as a result of the ANC’s poor carrying out of their policy at ground level, especially at municipal level, they are waging this type of personal smear campaign against leaders in the Western Cape in order to promote their own case.]

The DEPUTY CHAIRPERSON OF THE NCOP (Mr M L Mushwana): Order! Is there any objection to the motion? [Interjections.] There is an objection to the motion. In the light of the objection, this motion may not be proceeded with and will be recorded as notice of a motion.

            NATIONAL PROSECUTING AUTHORITY AMENDMENT BILL

            (Consideration of Bill and of Report thereon)

The DEPUTY CHAIRPERSON OF THE NCOP (Mr M L Mushwana): Order! I take this opportunity to welcome in our midst the hon the Deputy Minister for Justice and Constitutional Development and call upon her to address this Chamber.

The DEPUTY MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT: Chairperson, colleagues and comrades, I would also like to welcome my old Chief Whip. It feels a bit like a school reunion. I had the honour of being his accounting officer for the ANC caucus funds. Having worked directly under him, I know that his future is bright, but much more so the future of the national prosecuting authority.

The CHIEF WHIP OF THE COUNCIL: Fortunately we have a surplus. [Laughter.]

The DEPUTY MINISTER: The launch of South Africa’s national prosecuting authority in 1998 introduced a new era for crime fighting in South Africa. This timely introduction of a single national prosecuting authority signalled the birth of a dedicated team of crime-fighters entrusted with the appropriate armour to fight sophisticated criminals and crime syndicates, and to take them on toe-to-toe.

The establishment in September 1999 of the Directorate of Special Operations, or the DSO, popularly labelled the Scorpions, came at a crucial time. While the majority of South Africans were basking in the freedom and opportunity offered by an emerging democratic South Africa, antidemocratic forces embarked on a crime campaign, unleashing horrendous acts of violence that have stunned and victimised ordinary peace-loving citizens.

The DSO will function under the control and direction of the Natonal Director of Public Prosecutions, whose constitutional mandate is to institute criminal proceedings on behalf of the state and to carry out those functions without fear, favour or prejudice.

The Bill before us today adds metal to the existing legislative framework governing the national prosecuting authority, and comfirms the widened scope and ambit of the Directorate of Special Operations.

An important consolidation of forces will take place with the passage of this Bill. The amended legislative framework brings the existing investigating directorates of the prosecuting authority, namely those relating to serious economic offences, organised crime and corruption, under one roof. The proclamation issued in respect of the latter directorates will be deemed to have been issued in respect of the Directorate of Special Operations, and will thereby guarantee continuity in ongoing investigations and prosecutions.

The investigation of a crime and the gathering, preparation and presentation of evidence are the most important elements in solving any criminal matter, however big or small. Unfortunately, the rising number of urban terror campaigns worldwide, and the increased sophistication of white- collar criminals demand increasingly modern investigative techniques based on state-of-the-art training, superior infrastructure, foolproof systems and procedures and cutting-edge technology.

The Directorate of Special Operations will therefore provide the prosecuting authority with an effective investigative infrastructure and a suitably trained task force that will focus on prioritised criminal offences and conduct, with the overriding objective of instituting appropriate proceedings against perpetrators involved in such activities.

The directorate’s activities will focus, firstly, on any criminal or unlawful activities committed in an organised manner and, secondly, on other offences or categories of offences as determined by the President. In respect of these identified categories of offences, the directorate’s purpose is to conduct any necessary investigations; to gather, keep and analyse information; and, where appropriate, to institute criminal proceedings against the perpetrators in question. A Deputy National Director of Public Prosecutions, who will use and perform his or her powers and functions subject to the control and direction of the National Director of Public Prosecutions, will head this directorate.

The following persons will assist the directorate: investigating directors, who are directors of public prosecutions appointed to the directorate; prosecutors, including deputy directors of public prosecutions; special investigators, who are a newly created category of persons to be appointed in terms of the Act; persons who are seconded to the directorate; and other persons whose services may be obtained by the directorate from time to time.

The directorate will further rely on a full partnership with communities, the national prosecuting authority, SA Police Service and the National Intelligence Agency. Moreover, the Bill makes provision for the establishment of a ministerial co-ordinating committee, comprising the Ministers responsible for Justice and Constitutional Development, Safety and Security, the National Intelligence Agency, Correctional Services, Defence and any other Minister desiganised mannernated by the President from time to time.

The establishment of a partnership between all Government stakeholders and civil society is a major contributor to bolstering our crime fighting capacity. It embraces government’s intention to strategically align related organisational structures, systems and personnel to capitalise on existing synergies and to muster the collective strengths of the various disciplines. This follows the presidential imperative to cultivate a clustered or sectoral approach to governance and, in this case, to the criminal justice system.

Our National Crime Prevention Strategy is reviewed on a constant and ongoing basis. We remain committed to the task of establishing a comprehensive policy framework and effective implementation mechanisms to empower the many units and divisions within the criminal justice network in order to address crime in a co-ordinated and efficient manner.

These adjustments will be made on an ongoing basis as we tighten up and improve the efficiency and effectiveness of the criminal justice system. The re-engineering of our court services is under way, and we are already seeking a positive improvement in the efficiency of our courts and our case management processes. The task-focused consolidation of the prosecutorial system, as set out in this legislation, will no doubt further strengthen the organisational capacity and operational efficiency of the Directorate of Special Operations. I am confident that the Directorate of Special Operations will become a key instrument in the efficient and effective prosecution of criminals involved in serious and organised crime. I rise in support of this Bill. [Applause.]

Mr J L MAHLANGU: Chairperson, I would like to indicate from the outset that no party in this House opposes this Bill. Therefore my address to this hon House this morning will look at a few issues which I would like to bring to the attention of members who did not have the privilege to participate in this process. In his opening address in Parliament on 25 June 1999, the President announced that a special and adequately staffed and equipped investigating unit would be established urgently, to deal with all national priority crimes, including police corruption. The Directorate of Special Operations was launched in Guguletu in the same year, 1999. Since then the directorate operated with staff borrowed from other departments and services.

I would like to quote certain creations that the two committees, that is the select and portfolio committee, have worked on, especially with regard to the preamble of this Bill. These are as follows:

… the Constitution provides that the Cabinet member responsible for the administration of justice must exercise final responsibility over the prosecuting authority;

… the Constitution provides that national legislation must ensure that the Directors of Public Prosecutions are appropriately qualified and are responsible for prosecutions in specific jurisdiction;

… the Constitution provides that national legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice;

… the Constitution provides that the National Director of Public Prosecutions must determine, with the concurrence of the Cabinet member responsible for the administration of justice, and after consulting the Directors of Public Prosecutions, prosecution policy which must be observed in the prosecution process;

… the Constitution provides that the National Director of Public Prosecutions may intervene in the prosecution process when policy directives are not being complied with, and may review a decision to prosecute or not to prosecute;

… the Constitution provides that the prosecuting authority has the power to institute criminal proceedings on behalf of the state, and to carry out any necessary functions incidental to instituting criminal proceeding;

… the Constitution provides that all other matters concerning the prosecuting authority must be determined by national legislation;

… the Constitution does not provide that the prevention, combating or investigation of crime is the exclusive function of any single institution;

… the Constitution does not prohibit Parliament from amplifying the powers and functions of the prosecuting authority in national legislation;

This is exactly what Parliament is actually doing with the enactment of this legislation -

… and in order to ensure that the prosecuting authority fulfils its constitutional mandate to institute criminal proceedings on behalf of the state and to carry out the necessary functions incidental thereto, to make provision for -

 ... the establishment of an investigating directorate, with a limited
 investigative capacity, to prioritise and to investigate particularly
 serious criminal or unlawful conduct committed in an organised fashion
 ...

I would like to underline ``in an organised fashion’’ -

… or certain offences or unlawful conduct, with the object of prosecuting such offences or unlawful conduct in the most efficient and effective manner; and

the necessary infrastructure and resources to perform these functions.

The Deputy Minister has indicated how the composition of the prosecuting authority would be structured. Obviously, we have the national director, who was welcomed into this House, and who was a member of this House in the past.

With regard to the operations of the directorate, the Deputy Minister and I have indicated that its primary task is to investigate; to carry out functions incidental to investigation; to gather, keep and analyse information; and, where appropriate, to institute criminal proceedings and carry out any functions necessary to instituting criminal proceedings. It is expected that members of this authority will have to meet certain security requirements. The national director, after gathering and evaluating information, may appoint a person as a special investigator if he is satisfied that there is no possibility that such a person might be a security risk or that he or she might act in any way prejudicial to the objectives of the Directorate of Special Operations. If he is satisfied, the national director may issue a certificate in respect of such a person in which it is certified that he or she has successfully undergone security clearance. The director has a right to withdraw security clearance in cases in which certain developments come to the fore indicating that the person given a clearance actually does not meet the necessary requirements.

The other inclusion in the Bill relates to the conditions of service. It provides that no permanent member of the directorate may strike or induce or conspire with any other member of the directorate to strike. Some members of the committee asked whether this provision did not infringe upon the constitutional rights of members of the directorate. But I think that members will all know that the constitutional rights are not absolute but can be limited to the extent that such limitation is reasonable and justifiable in an open and democratic society.

What cannot be taken away from the workers, ie the members of the directorate, are their collective bargaining rights. The employment contract would make it clear that there is no right to strike. These provisions would meet the constitutional challenge because, in terms of the Bill that we will be passing this morning, the employees in the directorate render an essential service.

Also, the Scorpions, the directorate we are talking about, are not attached to any geographic area in the Republic but can work throughout South Africa. This is provided for in order to eliminate the problems of constitutionality and jurisdiction, as well as the lack of clarity regarding the line of command of the directorate. In conclusion, I have addressed the question of the role that they have to play in investigations.

With regard to the last issue that the Deputy Minister indicated, a ministerial committee will be established which will deal with policy guidelines and the spread of functions of the directorate, and we hope that this legislation will help to create the necessary legislative framework for a body that already exists. As members of the ANC as well as those of the select committee, we support this Bill. [Applause.]

Mr L G LEVER: Mr Chairperson, the legislation that regulates the unit that has come to be known as the Scorpions was originally introduced as a stand- alone piece of legislation entitled the Directorate of Special Operations Bill. In that form there were a number of objections to the Bill.

The legislation necessary to regulate the Scorpions was later drafted for incorporation into the National Prosecuting Authority Act as an amendment to that Act. This is the appropriate place to regulate the Scorpions, and the objections and difficulties of the original Bill were adequately dealt with and fell away.

The amendments to the National Prosecuting Authority Act ensure that there is close co-operation between investigating units and prosecutors who will be responsible for running the prosecution of a case.

This will ensure that criminals do not escape conviction owing to misunderstandings between investigative units and the prosecutors, or owing to legal technicalities. The Directorate of Special Operations will be staffed by prosecutors, investigators, experts from the Public Service who can be seconded to the directorate, and experts from the private sector who can be hired for specific tasks. This is a flexible arrangement that will allow the Scorpions to react quickly and efficiently to the constantly changing practices of criminal syndicates. The aims of the Directorate of Special Operations are to investigate, gather, keep and analyse information and to institute criminal proceedings related to organised crime or any other specified offence.

The amendments to the National Prosecuting Authority Act provide for the manner in which special investigators are appointed, their conditions of service and their remuneration. Special investigators will undergo periodic screening to ensure that the Directorate of Special Operations is not infiltrated by corrupt elements. The Directorate of Special Operations shall be deemed to be an essential service in terms of the Labour Relations Act, and members of the Scorpions shall not be entitled to strike. The Bill provides the Scorpions with the necessary powers to perform their functions.

In an era in which organised crime is often as sophisticated as many large corporations and also has access to significant resources, a unit such as the Scorpions is certainly necessary. The DP supports the Bill before the House. [Applause.]

Prince B Z ZULU: Chair, Deputy Minister for Justice and Constitutional Development, hon members, since 1994 the Government has systematically developed policies and legislation to deal with one of the major legacies of apartheid, namely crime. If one looks back on all the policies adopted and the legislation passed since then, one gets a clear picture of a government that knows what it is doing. It is a picture of a government which has identified crime as one of its priorities and which has developed a clear framework within which to address the issue of crime.

The South African Police Service Act, the National Strategic Intelligence Act, the International Co-operation in Criminal Matters Act, the Extradition Amendment Act, the Criminal Procedure Second Amendment Act, the National Prosecuting Authority Act, the Witness Protection Act and the Prevention of Organised Crime Act, as well as policies such as the National Crime Prevention Strategy which links crime prevention with social upliftment, have all contributed towards laying a solid foundation on which we can reduce and eventually eradicate crime from our society.

The National Prosecuting Authority Amendment Bill builds on this foundation. It is a logical follow-up to the Prevention of Organised Crime Act, which was passed to outlaw organised criminal activities and to lay siege on the proceeds derived from these criminal activities.

After the Prevention of Organised Crime Act was passed, we realised we were sitting with a problem because while we had an Act which outlawed organised crime on the one hand, we lacked the means to enforce its provisions on the other. The reason we were unable to enforce the Act was because the old policy we inherited lacked the skills that we required to investigate organised crime. The main tool used by the old police was to beat confessions out of suspected criminals in order to secure convictions. Such methods have become wholly inappropriate to investigate organised crime and are also unacceptable in our new democracy. While we have been faced with this problem, organised criminal syndicates have increased their activities in our country in their traditional spheres of activity, such as prostitution, the arms trade and trafficking in drugs. Organised crime has now added to its activities money laundering, trade in human organs and the transporting of illegal immigrants. Money laundering in particular can have enormous economic implications for our country if we do not deal with it. Money laundering impacts on our country by reducing tax revenues through underground activities, and competes unfairly with legitimate businesses, damaging and eroding the integrity of our financial institutions and disrupting real economic growth.

The danger posed by organised crime to our society cannot be taken lightly. The only way we can successfully combat organised crime is to establish a national co-ordinated body with the resources and capacity to deal with it. I have no doubt that the Directorate of Special Operations is indeed such a body. We need to give them our support and encourage them to continue to do the excellent work they have performed until now. [Applause.]

Dr P J C NEL: Chair, hon Deputy Minister, hon members, the legislation to regulate the activities of the Scorpions was initially introduced as the Directorate of Special Operations Bill. In this format the legislation was unacceptable in that it created a very powerful unit which was not directly linked to an existing administrative structure, with no clear line of authority and no clear jurisdiction. The said format has, however, been changed and the legislation is now presented as an amendment to the National Prosecuting Authority Act of 1998. Most of the objections now fall away.

The Scorpions unit is being dealt with as an investigating directorate known as the Directorate of Special Operations. The existing Act already makes provision for the establishment of an investigative directorate. These provisions have now been adopted to accommodate the Scorpions. The head of the directorate shall be a deputy national director of public prosecutions assigned by the National Director of Public Prosecutions, and functioning within the structure of the national prosecuting authority.

The unit’s aims are clearly spelled out in clause 7, namely, to investigate, and to carry out any functions incidental to investigations; to gather, keep and analyse information; and where appropriate, institute criminal proceedings and carry out any necessary functions incidental to instituting criminal proceedings, relating to offences or any criminal or unlawful activities committed in an organised fashion; or such other offences or categories of offences as determined by the President by proclamation in the Gazette.

The New NP supports this Bill and trusts that the Scorpions, who are doing excellent work and have already had some brilliant successes, will play a major role in the reduction of the totally unacceptable high levels of crime in our country. [Applause.]

Mr T S SETONA: Chairperson, hon Deputy Minister, in the light of the unanimous support by all political parties for this Bill, I want to add the support of the ANC on its behalf. I also want to thank everyone who participated in the debate. [Applause.] [Interjections.] [Laughter.]

The DEPUTY CHAIRPERSON OF THE NCOP (Mr M L Mushwana): Order!

The DEPUTY MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT: Mr Chairperson, I would like to congratulate the previous speaker on knowing when to keep silent. They say it is an art. I congratulate the hon member. [Laughter.]

I have just been advised by the National Director of Public Prosecutions, Mr Ngcuka, that in the early hours of this morning the national prosecuting authority arrested three prominent members of Pagad for the murder of Mr Rashaad Staggie. They will appear in court later today. These persons were identified by the national prosecuting authority from the tapes seized from the media recently. They are Salie Abader, Moegsien Mohammed and Abdurazak Ebrahem, a former emir of Pagad. [Applause.]

My congratulations go to the national director and his team. A very important part of this effort has been the teamwork. Fighting crime is a collaborative effort. The structure of this piece of legislation to be passed in this Chamber today emphasises the need to unite and join forces in the fight against organised crime, gangsterism and the urban terror campaign of pipe and strike bombs that has gripped the Western Cape recently. I would like to use this opportunity to call on councillors in this House to encourage their constituents to actively join the fight against crime. The full participation of communities and individuals in the criminal justice system is crucial to eradicating crime. We need to join hands to combat crime so that everyone can claim their right to feel safe and secure in this country.

May this legislation inspire and enable many more successful prosecutions. To the National Director of Public Prosecutions, Mr Bulelani Ngcuka, and the deputy national director and head of the Scorpions unit, Adv Percy Sonn, I say: Our best wishes to them in their challenging task of bringing all those criminals on the ``wanted list’’ to book.

In conclusion, I wish to thank the members of the Select Committee on Security and Constitutional Affairs and its chairperson, Comrade Mahlangu, for their thorough examination of the Bill. I also thank all members of the NCOP for their support.

Debate concluded.

Bill agreed to in accordance with section 75 of the Constitution.

                   JUDICIAL MATTERS AMENDMENT BILL

            (Consideration of Bill and of Report thereon)

The DEPUTY CHAIRPERSON OF THE NCOP (Mr M L Mushwana): Order! I have been informed that only the chairperson will make a statement.

Mr J L MAHLANGU: Chairperson, the Judicial Matters Amendment Bill is a Bill that encompasses in a single Bill a variety of amendments to laws which are administered by the Department of Justice and Constitutional Development, which amendments do not require individual amending bills.

This Bill provides for and brings the oath that magistrates are supposed to take before assuming office in line with the Constitution. Previously, only magistrates who were employed in the permanent capacity had to take an oath. Now the Bill provides for even those employed in an acting capacity to take the oath.

Clause 2 of the Bill flows from the case of State v Manamela. This case dealt with the presumptions regarding section 37 (1) dealing with stolen property in the General Law Amendment Act of 1955, where it was stated that the effect of requiring the state to bear the burden may mean that the offence would only be effectively prosecuted in extremely rare circumstances, if at all. For that reason, it falls as well with any class of exemptions identified by Kentridge A J in State v Zuma in 1995, where the judge stated that there may be presumptions which are necessary if certain offences are to be effectively prosecuted and the state is able to show that for good reason it cannot be expected to produce evidence itself.

The presumption that a person who habitually cohorts with a prostitute is living off the proceeds of prostitution was upheld on that basis in R v Downey by the Supreme Court of Canada.

Another interesting provision of this Bill is the fact that it now allows a legal clinic that provides services free of charge to the community to collect costs from the unsuccessful party when it wins the case. This is, indeed, a progressive change, as it will actually help to fund the organisations that provide free legal services.

There are other minor amendments which affect the rights of individuals, such as with section 72 of the Administration of Estates Act of 1965. This was done in order to substitute the archaic and stigmatising expression illegitimate child or minor'', which was in contrast with our culture, especially as Africans, because we really did not have illegitimate children, with the expressiona minor born out of wedlock’’.

The Bill also amends section 38 of the National Prosecuting Authority Act of 1998 so as to provide that where the engagement of persons to perform services in specific cases will not result in financial implications for the state, the National Director of Public Prosecutions may, under an agreement in writing and without prior consultation with the Minister for Justice and Constitutional Development, on behalf of the state, engage persons with suitable qualifications and experience to perform such services. I am sure those services will help us with issues such as the one contained in the report from the Deputy Minister that some people who are involved in some criminal offences have, indeed, been apprehended.

Clause 22 of the Bill impacts directly on members of the National Council of Provinces by amending section 3 of the Magistrates Act of 1993 in order to bring the designation procedures in respect of delegates to this Council as members of the Magistrates Commission in line with the designation procedures prescribed in section 178 of the Constitution.

The reason we decided not to debate this Bill is that all members were in agreement and the chairperson was tasked to present the Bill and also to indicate that all members and parties support it. I so move. [Applause.]

Debate concluded.

Bill agreed to in accordance with section 75 of the Constitution.

CONSIDERATION OF REPORT OF SELECT COMMITTEE ON SECURITY AND CONSTITUTIONAL AFFAIRS - RSA/AUSTRALIA EXTRADITION TREATY

The DEPUTY CHAIRPERSON OF THE NCOP (Mr M L Mushwana): In this case I have been advised that the hon member Mr L G Lever will make a statement.

Mr L G LEVER: Chairperson, criminals have become more sophisticated and more organised on an international level. Criminals show no respect for the sovereignty of nations. In fact, criminals try to abuse the sovereignty of nations to evade capture and avoid paying their debt to society. For this reason, extradition treaties, such as the one now before our House between South Africa and Australia, have been used for many years as a tool in combating the spread of crime at an international level.

Treaties of this nature are important for another reason. They are indicative of our nation being accepted into the family of responsible nations. Crime has to be fought by every responsible nation, for crime not only undermines the fabric of society; it also undermines the economy of our nation in many different ways.

Extradition treaties are usually the result of long and complex engagements. South Africa and Australia started this process before 1995. The domestic law of the contracting states has to be respected and complied with.

This treaty defines offences where an extradition request would be competent. It also sets out the circumstances in which an extradition request may be refused. Extradition requests may be refused where, broadly speaking, the offence in respect of which extradition is sought is of a political nature, or where due to a time lapse, a statute of limitations precludes a prosecution. There are certain other limitations which I do not have time to outline. However, the committee is of the view that none of these limitations will assist the international criminal. Limitations of the nature included in this treaty are important and necessary safeguards.

The treaty defines the procedures and formalities necessary to give effect to a request for the extradition of an individual. Our country cannot be seen as or perceived to be a safe haven for criminals seeking to evade justice in another country. We also need to pursue criminals who commit criminal acts in our country and who flee to other countries. We cannot allow criminals to think they can escape justice by simply fleeing from the country. Our committee feels that this treaty does not offend against our Constitution. We feel that it is an important and necessary step to take in combating crime. Accordingly we recommend to this House that it ratify the extradition treaty between the Republic of South Africa and Australia. [Applause.]

Debate concluded.

Report adopted in accordance with section 65 of the Constitution.

CONSIDERATION OF REPORT OF SELECT COMMITTEE ON SECURITY AND CONSTITUTIONAL AFFAIRS - ROME STATUTE

The DEPUTY CHAIRPERSON OF THE NCOP (Mr M L Mushwana): In this case the chairperson of the Select Committee on Security and Constitutional Affairs will make a statement.

Mr J L MAHLANGU: Chairperson, we have made good time and I am sure the Chair would not mind giving me an extra minute to complete this presentation.

The DEPUTY CHAIRPERSON OF THE NCOP (Mr M L Mushwana): No, I would mind. [Laughter.)

Mr J L MAHLANGU: This presentation was supposed to have been made by Mr Matthee, who is a member of the committee, as compensation for the good co- operation that we got from other political parties in our committee. That is why Mr Lever presented the other one.

The Rome Statute seeks to establish a permanent international criminal court with inherent jurisdiction over serious crimes of international concern namely, crimes of genocide, crimes against humanity, war crimes and crimes of aggression. The International Criminal Court established under the Rome Statute is complementary to national criminal jurisdiction, and both have the duty to exercise their respective jurisdictions over persons responsible for the commission referred to.

The ICC shall have jurisdiction only with respect to crimes committed after the entry into force of the Rome Statute. The Rome Statute will be operational after 60 instruments of ratification have been lodged with the UN Secretary-General. Presently, there are 22 ratification instruments. The seat of the court is The Hague in the Netherlands, but it may sit in any other country.

World Wars I and II and subsequent trials before the Nuremberg and Tokyo War Crimes Tribunals set the stage for efforts to create a permanent ICC. During 1949 to 1954, the International Law Commission, as mandated by the UN General Assembly, prepared a draft statute for the ICC. However, the General Assembly abandoned the efforts due to opposition from powerful states on both sides of the Cold War. At the end of the Cold War, in 1989, the General Assembly asked the International Law Commission to prepare a draft statute. In 1992, the ILC was requested to complete the draft statute for the ICC.

The war in Bosnia and Herzegovina and Rwanda during 1992 and 1994 respectively, and the establishment of the ad hoc tribunal for these countries strengthened the urgent need for the establishment of a permanent court. The General Assembly convened six preparatory committee meetings to continue to draft documents for the ICC from 1996 to 1998. South Africa was represented in those meetings by a delegation comprising the Department of Justice and then the Departments of Foreign Affairs and of Defence. In September 1997, the 14 SADC nations set out 10 basic principles to be included in the ICC. On 17 July 1998, the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an ICC, at which South Africa was represented, adopted the Rome Statute of the ICC. This was the first important step towards the establishment of a permanent international criminal justice system which will complement national laws in the prosecution of individuals for the said crimes of international concern.

Out of 160 participant states, only seven, namely China, Iraq, Iran, Libya, Qatar, Yemen and the US, voted against the treaty. In terms of article 125 of the statute, the statute is open to signatures by all states until 31 December 2000. Thereafter, it is subject to ratification by signatory states. South Africa has already signed the statute. In terms of article 126, the statute enters into force only after the deposit of the 60 instruments, as indicated earlier on.

The implications arising from the ratification of the Rome Statute are twofold, namely the promotion of legislation which will incorporate the Rome Statute into our national legal system and ensuring co-operation with the ICC. This legislation should criminalise the crimes of genocide, crimes against humanity and other crimes that I have mentioned. The crime of aggression will only be criminalised once a provision defining the crime has been agreed to by the review conference of Assembly of State Parties that are included in the Rome Statute. Another implication involves financial resources relating to co-operation with the ICC and State Parties.

While the Rome Statute will become operational after 60 countries have ratified it, and while 122 countries including Lesotho and Botswana have, to date, deposited their instruments of ratification, South Africa’s early ratification is of paramount importance, particularly in view of South Africa’s leadership role among the SADC countries, both during negotiations in Premcom and during the diplomatic conference of the ICC. Cabinet has approved that steps be taken to request Parliament to approve the ratification of the Rome Statute. This decision underscores the commitment demonstrated by South Africa, especially with the SADC, during these negotiations.

In conclusion, a short overview of the important provisions of the Rome Statute is that the state law advisers and international law advisers supported the ratification of the Rome Statute during the international departmental meeting, and our recommendation to this House is that the committee recommend unanimously that Parliament approve the ratification of the Rome Statute and that, after approval by Parliament, the hon Minister of Foreign Affairs prepare an instrument of ratification and deposit it with the Secretary-General of the United Nations. This is so that, in the words of Mr Kenneth Roth, the executive director of Human Rights Watch, the ICC can target those responsible for the worst human rights crimes personally. When tomorrow’s student contemplates war crimes or crimes against humanity, an effective international court will make him think twice.

At this point in time I would also like to thank the department officials for their good work. I thank the members of my committee and I recommend that the Council ratify this treaty. [Applause.]

Debate concluded.

Report adopted in accordance with section 65 of the Constitution. The DEPUTY CHAIRPERSON OF THE NCOP (Mr M L Mushwana): Order! Hon members, allow me this opportunity to thank the hon the Deputy Minister for her presence in this House and for engaging this House in a debate on the passage of a most important Bill. We appreciate her presence.

The Council adjourned at 10:37. ____

            ANNOUNCEMENTS, TABLINGS AND COMMITTEE REPORTS

TABLINGS:

National Assembly and National Council of Provinces:

Papers:

1. The Minister of Home Affairs:

 Reports and Financial Statements of the Film and Publication Board for
 1998-99 and 1999-2000,  including the Reports of the Auditor-General on
 the Financial Statements for 1998-99 and 1999-2000.

COMMITTEE REPORTS:

National Council of Provinces:

1. Report of the Select Committee on Economic Affairs on the Abolition of Lebowa Mineral Trust Bill [B 49B - 2000] (National Assembly - sec 75), dated 8 November 2000:

   The Select Committee on Economic Affairs, having considered the subject of the Abolition of Lebowa Mineral Trust Bill [B 49B - 2000] (National Assembly - sec 75), referred to it, reports that it has agreed to the Bill.