Address by Advocate Johnny de Lange, Deputy Minister for Justice and Constitutional Development on the Second Reading Debate, Criminal Procedure Amendment Bill

Madame Speaker
Honourable Ministers and Deputy Ministers
Honourable members
Comrades and friends

There are two Bills which are to be debated today, the Judicial Matters Amendment Bill and the Criminal Procedure Amendment Bill (the Bill). While both these Bills might not be regarded as sensational from a media point of view and might even be considered to be of a technical and mundane nature, their impact is more than meets the eye.

Both the Judicial Matters Amendment Bill and the Criminal Procedure Amendment Bill, under discussion now are intended to address practical issues which will have an enormous impact on a diverse range of processes, procedures and mechanisms within the administration of justice. The approval of these two Bills by Parliament will have a very positive effect in relation to a number of aspects within the administration of justice.

They are intended to streamline the application of existing Acts administered by the department and to create new processes and procedures which, I believe, will be hugely beneficial to our people and for the administration of justice.

They will save the tax payer's money, they will create certainty where there is uncertainty, they will make aspects of the Criminal justice System (CJS) more efficient and effective, they will address the legislative and other wrong-doings of the previous constitutional dispensation, with specific reference to the apartheid crimes that will be expunged automatically, and they will give effect to constitutional imperatives.

I turn now to the Criminal Procedure Amendment Bill

This Bill deals with two issues. The first is to regulate, for the first time, the postponement of certain criminal proceedings by way of audiovisual link. The
second reading is to provide for the expungement of certain criminal records. Clause one of the Bill deals with the audiovisual postponement of criminal proceedings. Four new provisions are proposed for insertion in the Criminal Procedure Act, 1977, namely new sections 159A, 159B, 159C and 159 D.

These new provisions, because they are straight forward, do not require elaboration and I will not go into any further detail on what they provide for. They are based largely on the legislative recommendations of the South African Law Reform Commission's report on the use of electronic equipment in court proceedings, with a few meaningful additions proposed by the Portfolio Committee. Allow me to elaborate in this regard.

I refer, firstly, to the insertion proposed by the committee in new section 159B(4), in terms of which a presiding officer is required to inquire into the physical and mental well-being of the person appearing before him or her by means of audiovisual link. A presiding officer knows that the postponement of a case entails more than just remanding the case to another day. The presiding officer sees the accused person before the court and makes an almost subconscious assessment as to his or her well-being. Because the presiding officer will not be in the actual presence of the accused in terms of these provisions, it is necessary, in my opinion, for specific legislative directives, requiring the presiding officer to go the proverbial "extra mile" in audiovisual proceedings to make sure that the accused person is in fact being kept in custody in accordance with certain minimum standards and norms and is not being subjected to any form of abuse. The proposed new section 159B (4) is therefore welcome.

I also welcome the changes to the introduced Bill which regulate situations where there are glitches in technology. Provisions of this nature are necessary because technology does sometimes let us down. The new section 159C(2) proposed by the Portfolio Committee spells out what is to happen if there is an interruption of an audiovisual link, if an audiovisual link is of a poor quality or if the audiovisual facilities malfunction.

Before I step off the audiovisual provisions, I want to point out that they also give effect to a crucial component of the review of the Criminal Justice System (CJS), which government has embarked upon, and of which the implementation is under way. The review of the CJS is working towards the establishment of a new, modernised, efficient and transformed CJS. This will be underpinned and driven by a package of seven fundamental and far reaching transformative changes to the present CJS. These proposed changes have all been adopted by Cabinet, on 7 November 2007 and now require full implementation in an integrated and holistic manner.

The sixth pillar of the seven point plan deals with modernisation projects. This particular plan deals with projects which aim to modernise, in an integrated and holistic manner, all aspects of the systems and equipment of the CJS, including the fast tracking of the implementation of present projects and modernisation initiatives.

A number of solutions and modernisation projects have been developed and are being implemented. One of these projects deals with the video postponement of cases by the provision of high quality multi-protocol communication links between court rooms, referred to as "court points" in the Bill and correctional services facilities, referred to as "remote points" in the Bill.

The proposed video postponement of cases will also be hugely cost effective, avoiding transporting prisoners long distances each day if their cases will not proceed on that day, with the concomitant advantage that high risk prisoners will have less opportunity to escape during transportation and processing at courts.

The Memorandum on the Objects of this Bill deals in some detail with the savings, benefits and other implementation issues of this clause. I am consequently not going to say anything further in this regard. I turn now to clauses 2 and 3 which deal with the expungement of criminal records. These provisions have their origins in section 271A of the Criminal Procedure Act, 1977, as well as in the prerogative of the President to pardon offenders in terms of section 84(2)(j) of the Constitution of 1996.

Section 271A of the Criminal Procedure Act provides that a person's conviction for certain less serious offences falls away as a previous conviction after a period of 10 years has lapsed since that conviction, if the person has not, during that 10 year period, been convicted of a further offence and received a sentence exceeding six month's imprisonment without the option of a fine. The category of persons qualifying for this benefit is based on the sentences they received, which are of a minor nature.

Section 271A, however, really only comes to the assistance of accused persons as far as previous convictions are concerned. It does not take the matter to its logical conclusion by providing a mechanism in terms of which an accused person can have his or her slate wiped clean. By this I mean there is no mechanism for such a person to have his or her criminal record deleted at the Criminal Record Centre of the South African Police Service.

The result of this gap is that there is an ever-increasing number of persons who approach the President for a presidential pardon which, if granted, leads to the
expungement of the criminal record. The numbers have grown to hundreds, if not thousands, each year. I have no doubt that presidential pardons should not be granted routinely. They should be the exception and not the norm.

However, over the last few years, a practice has developed that the President is approached for a Presidential pardon and expungement of the criminal
record of persons who have committed minor offences and where 10 years or so have elapsed since the commission of the offence without any other serious crime being committed. We have processed hundreds, even thousands, of cases to the President annually and the numbers are growing rapidly. In order to address this gap the Bill proposes the creation of an application procedure, in terms of which persons who have committed minor offences in the past which did not result in incarceration and at least 10 years has elapsed since then without a further crime not leading to incarceration being committed, can have their past misdemeanours removed administratively.

That is what the Bill seeks to do, using section 271A as a basis on what qualifies for automatic expungement, with a few adaptations and a new section 271B which creates an application procedure leading to expungement of minor offences if all criteria are met. The impact will be positive for persons who require clean police clearance certificates for work and travel purposes, among others. The intention is certainly not to interfere with sentences imposed by the courts.

The mechanism provided in the Bill will only impact on sentences imposed by the courts which have been fully complied with and where the person did not serve any term of imprisonment.

Again, I am not going to go into too much detail regarding the provisions.
They are self explanatory. I do, however, want to make specific reference to the proposed new section 271C. I trust that the Honourable Member, Mr Selfe, who introduced a private members Bill dealing with the same subject matter, will be satisfied with this aspect of the Bill, although the mechanisms proposed are not the same as he suggested, I think the outcomes are the same.

This section provides for the automatic expungement of criminal records of persons who were convicted of certain specified offences that would never be considered to be offences under our new constitutional dispensation. There were
hundreds of thousands of unfortunate persons who were stigmatised and subjected to criminal sanctions under these so-called "apartheid offences", for instance persons who were convicted under the notorious Group Areas Act, the Immorality Act and the Prohibition of Mixed Marriages Act, to mention a few.

A provision of this nature is long overdue and I trust the Criminal Record Centre will do all in its power to ensure that the undeserved humiliation of the
persons who suffered under these provisions will be addressed as soon as possible. If automatic expungement does not take place or where expungement of an "apartheid" crime not specifically listed is applied for, we have provided for an application procedure to allow for expungement where all criteria have been met.

I am aware that there have been calls for all expungements envisaged in this legislation to be done automatically and the affected persons should not have to apply for the relief. That is the ideal but, unfortunately it will, at this stage, be difficult for the Criminal Record Centre to implement. The Centre has indicated that it is in a position to deal with the automatic expungement of the apartheid crimes, but it is not in a position to do all expungement in that manner. This is a goal towards which we can work in future.

I have taken note of the report of the Portfolio Committee which indicates that this Bill should be seen as the first step in a bigger process. The Committee has suggested that further research and consultation be undertaken relating to the system of keeping criminal records and the procedures to be followed when they are expunged. I shall request the Department or perhaps the South African Law Reform Commission to start working immediately on this aspect.

The department agrees with these proposals because the understandably narrow approach taken creates scope for some minor crimes not being covered by the Bill, allowing the present practise for such minor offences to be referred to the President for a pardon and expungement to continue. This is undesirable. Lastly, my thanks again to the Chairperson and other members of the Portfolio Committee for ensuring that we processed this Bill before the term of this third democratic Parliament ends, despite a very heavy workload. Congratulations to all of you - from all parties. May I thank members of my department for their assistance in processing the Bill, especially Advocate Lawrence Bassett.

It is for this reason that I, on behalf of government and the governing party,
the ANC, unconditionally support the passing of this Bill and recommend it to
House urging for the support of all parties.
I thank you.

Issued by: Department of Justice and Constitutional Development
22 October 2008