SUMMARY OF SUBMISSIONS ON THE WITNESS PROTECTION AND SERVICES BILL [B9-98]
Written submissions on the Bill were received from the following interested parties:
WIT 1 Cape Bar Council
WIT 2 Attorney-General: Port Elizabeth
WIT 3 - Attorney-General: Cape Town
WIT 3(a) Attorney-General: Cape Town (Addendum to WIT 3)
WIT 4 - Department of Home Affairs
WIT 5 - Attorney-General: Transvaal
WIT 6 - Human Rights Committee of South Africa
WIT 7 - Law Society of South Africa
2. Establishment of Office for Witness Protection
3. Functions of Director
5. Witness protection panels
6. Application for protection
7. Powers and duties of Director
8. Review by Minister
9. Civil proceedings against protected person
11. Publication of information concerning protected person
12. Protected person not obliged to disclose certain information
14. Agreements with foreign countries
15. Offences and penalties
CLAUSE-BY-CLAUSE SUMMARY OF COMMENTS
1. WIT 3
The expression "member of family or household" should be defined.
2. WIT 6
To enable the Bill to effectively achieve its objective, the following terms should be
(The definition should be extended to include "any member of the family or household". The deletion of the word "witness" and the insertion of the word "protected person" is recommended. The definition must also clarify whether applicants may be both State or defence witnesses.)
(b) "relocation" and "resettlement"
(The public sometimes get confused by the meaning and implication of these terms).
1. WIT 6
(a) A clause, similar to section 50 of the South African Police Services Act, 1995, providing for the establishment and independence of the Independent Complaints Directorate, should be inserted so as to reaffirm the complete independence of the witness protection unit. Provision should be made that-
(i) the unit shall function independently from the police service;
(ii) no organ of state and no member or employee of an organ of state nor any other person shall interfere with the functioning of the protection unit in the exercise and performance of its powers and functions; and
(iii) all organs of state shall accord such assistance as may reasonably be required for the protection of the independence, impartiality, dignity and
effectiveness of the unit in the exercise and performance of its powers and functions.
(b) The issue of secondment in clause 2(7) needs to be carefully considered. In practice secondment has led to various problems (See Part A, par. 3 of submission). The HRC believes that the witness protection programme requires staff who, inter alia, are -
(i) specifically skilled and trained in the needs of the programme;
(ii) available on a permanent basis; and
(iii) carefully screened to ensure that they are impartial.
1. WIT 3
Clause 3(c) has no provision that compels any person, organisation, institution or other Department to carry out any requests or orders from the Director or to fulfill any specific function. The Director should have the power to contract other role players to fulfill functions. The working relationship between the Director and other role players and his or her authority must be defined in the Bill otherwise the regulations may be ultra vires.
1. WIT 2
Clause 5(2)(b) presupposes that the composition of panel will only be considered on an ad hoc basis and only after the Director has been furnished with certain information.
The following questions are raised:
(a) Would the urgency of deciding the fate of a potential witness not be defeated by the procedure to be followed in appointing persons to a panel?
(b) Should panels not be standing structures composed of and comprising ex officio holders of certain positions in the area/region, for example the Attorney-General or persons charged with the prosecution of proceedings referred to in clause 6(1)(a) to (d)?
(c) Should provision not be made for the appointment, in all panels, of the Attorney-General or his or her delegate, instead of leaving the composition of the panel in the discretion of the Director?
2. WIT 3
(a) A witness should not be protected without the input of the Attorney-General concerned and therefore it is proposed that clause 5(2) be amended to provide as follows:
"...protection panel consists of persons, of which at least one has to be a member of the personnel of the relevant Attorney-General or a prosecutor delegated by him for that purpose
(b) The factors referred to in clause 5(2)(b) should be considered by a panel or the Director when a decision is made concerning protection, because they are relevant to the questions whether or how a witness should be protected, and not to the composition of the panel.
(c) A panel should be composed to deal with matters on a continuing basis, because it would not be possible to compose a new panel for every case.
(d) Clause 5(3) does not stipulate the factors which a panel should take into account when considering the merits of an application for protection. Clause 5(3) should be amended so as to include a reference to the factors referred to in clause 6(5).
(e) Subclause (4) must be amended so as to empower the panel and the Director to employ, on an ad hoc basis, the services of persons with specialised knowledge in the relevant particular field.
3. WIT 5
The view is expressed that the more people that are involved in panels, the more the security is at risk. Although panels provide the necessary check and balances that no oppressive use of the powers of the State exist, it can create an expensive bureaucratic and cumbersome procedure.
4. WIT 6
(a) An ad hoc panel which changes from time to time, differs according to regions
and circumstances and which is composed of individuals working on a part-time basis, would result in inconsistent and superficial evaluations being made.
(b) Although the Bill is deliberately left flexible in that it grants the Director a discretion regarding the establishment of panels in each region, the legitimacy and credibility of the unit can only occur where appointment processes of such panels are transparent.
(c) The concern is expressed that the appointment criteria and the practical functioning of a panel are not provided for in the Bill, but are to be regulated in the regulations (clause 16(1)(e)). The Bill, for example, does not provide for the following:
(i) Qualification and job descriptions of panel members.
(ii) Whether a panel, working on an ad hoc temporary basis, would have the requisite expertise, especially in areas of law, to undertake a thorough investigation as to whether the evidence of a witness is sufficient to aid in securing a conviction.
(iii) The time within which a panel must make its recommendations.
(iv) The number of members to serve on a panel and their terms of office.
(v) When and how often a panel will meet to evaluate witnesses.
(vi) Matters relating to the funding of a panel.
(d) The recommendation of a panel that a request for protection should be refused (clause 5(6)), must be "in writing" in order to be used in review proceedings.
(e) The witness protection programme requires a "distinct structure to work efficiently, effectively, impartially and independently". The following proposals are made in this regard:
(i) In stead of establishing panels, the Director should, in accordance with criteria to be prescribed in the Bill, appoint legal officers who are efficient, well-known and accessible.
(ii) Such legal officers must be placed in key centres throughout the Republic and their jurisdiction must be determined by the Minister, in consultation with the Director.
(iii) The primary functions of the legal officers will be-
- to examine and evaluate the veracity of the evidence of a witness
- to consult with other bodies having an interest in witness protection
- to seek advice from a select group of experts, if necessary
(Other functions of such legal officers are set out in par 2.1.2 of the
(iv) The regulations should provide for a reporting procedure to the Director, a monitoring formula and the control of expenditure.
(v) The Director should appoint security officers whose functions will be-
- to grant temporary protection pending evaluation by a legal officer
- to be responsible for investigations to enable the legal officers/Director to make their evaluations.
(These functions will include the protection, general care and well-being of witnesses.)
(vi) The regulations should provide for grievance procedures.
5. WIT 7
(a) The number of members of a panel should be stipulated as being "no less than five or more than seven". Alternatively, it is proposed that the number of members, the qualifications and ambit of experience of proposed members of the panels should be dealt with in the regulations. To have "lay persons on a panel would be unacceptable.
(b) Panels should not be too large and should clearly be in communicable positions so as to provide easy access, easy gathering and speedy setting up for the purposes for which it is established.
1. WIT 2
(a) Situations may arise where a potential witness can not personally report his or her belief or apply to be placed under protection (clause 6(1)(aa) and (bb)). It is suggested that a member of the family or household of such witness or the investigating officer (who believes on reasonable grounds that a potential
witness requires protection) should, in such circumstances, be accorded the liberty to apply on behalf of the potential witness or to set in motion an investigation by the Director.
(b) The question is posed as to whether or not the decision to grant temporary protection should not be vested in the panels, whilst communication and correspondence is entered into with the Director? (see clause 6(3))
(c) The question is posed as to how the information in the police docket (some of which might be of a very sensitive nature) would in practice be conveyed to the Director without compromising security, costs, time etc? (see clause 6(6))
2. WIT 3
(a) The category of persons that could be protected in terms of clause 6(1), is too narrow. The words "or any person otherwise closely connected to such person should be included whenever reference is made to the above category of persons.
(b) The provisions, in clause 6(3), for temporary protection are inadequate because it only empowers the Director to grant temporary protection. Clause 6(3) should be amended to extend such power also to any person delegated by the Director. Such delegation must be restricted to a member of the office, an Attorney-General or member of a panel. Such restriction would allow the Director to retain control and discipline.
(c) Provision should be made that the person to whom the report (referred to in clause 6(1)(aa)) has been made, may, in emergency situations (where a person who is empowered to grant protection can not be contacted immediately) refer the matter to any officer in charge of any police station or prison who could provide temporary protection in any manner without incurring costs for the State. Such officer should be empowered to detain the person in need for protection, subject to such person's consent, in protective custody in a police cell or prison for a period not exceeding 48 hours.
3. WIT 6
(a) Prisoners should have an alternative stipulated in the Bill to apply for protection via social workers at the prison. Social workers at the prison are more accessible to the prisoners and the Act should place a duty on social workers 10 assist the prisoner/potential witness to gain admission into the programme.
(b) A clause, empowering the Director to request the Minister of Correctional Services or the person designated by him or her, to make internal custodial arrangements for the protection of witnesses who are serving sentences of imprisonment or who are awaiting trial, should be inserted into the Bill.
(c) Clause 6(3) poses a problem in respect of the granting of temporary protection by the Director only, because:
(i) The Director may not be in the geographical area of the applicant and is thus not always easily accessible.
(ii) The Director may not have the time to familiarise himself/herself with the case due to the numerous tasks allocated to him/her.
(iii) It is easier for a Director who is a part of a region to be aware of the specific dynamics and history regarding organised crime and political violence in the region to enable him or her to make a decision as to whether temporary protection should be granted as a matter of urgency.
(d) A concern is expressed regarding the reliance on panels which are too loosely structured, not transparent and impracticable. This aspect of the Bill would hamper the State in achieving its aim. (See WIT 6, par (a) under "General Comments" for alternative system proposed.)
(e) The fact that the Bill does not, as in the case of the Director (clause 6(5)), set out the factors which a panel may take into account in respect of an application for protection, is concerning and problematic, as panels form the thrust of the Bill.
(f) The Bill does not specify whether members of a panel, as in the case of the Director (clause 6(6)), will be afforded access to any police docket, statement of a potential witness and to any testimony given in any proceedings. The question is posed whether a panel can make a proper evaluation without access to such documents and, on the other hand, whether the fluctuating members of a panel should be afforded access to such documents. If a panel is afforded access to these confidential documents a comprehensive screening process of panel members must take place.
(g) Provision should be made for a curator to be appointed by a High Court when the Director places a minor under protection without the consent of his or her parent or guardian (clause 6(4)).
1. WIT 2
Apart from clause 7(5), the involvement of the Attorney-General or prosecuting authority in matters pertaining to the protection of witnesses is undermined in the Bill. The following questions are raised in this regard:
(a) Should the final decision to grant a witness protection, at least in criminal investigations and inquest proceedings, not be left to the judicious discretion of the Attorney-General?
(b) Would the above proposal not obviate the obligation, in terms of clause 6(6), to afford the Director access to any police docket, which disclosure could lead to other problems?
2. WIT 3
(a) The Bill contains no clear empowering provisions pertaining to the relocation of witnesses. Clause 7(3) does not provide for the execution of relocation of witnesses. Specific provision has to be made for the power to employ, utilise or instruct others to assist with the relocation of protected persons, for instance the power to request or instruct a local authority to make subsidised accommodation available for the relocation of witnesses. (See WIT 3(a) under clause 16)
(b) Clause 7(4) should be amended so as to provide that where a prosecution is still pending, the Director may not discharge a person from protection without consulting with and proper notification to the Attorney-General concerned.
(c) The Bill does not provide for the summary discharge of a protected person who grossly misbehaves himself or herself to such an extent that the behaviour might jeopardise the safety of other protected persons. Although such discharge would necessitate immediate action, the Director may, due to specific circumstances, not be in a position to draft a notice referred to in clause 7(4) immediately. Provision should therefore be made that the officer in charge of the protection of such person, in consultation with a member of the panel concerned, could discharge such person summarily from protection, provided that the officer concerned reports the matter within 48 hours to the Director and the panel and Attorney-General concerned.
3. WIT 6
(a) The "memorandum of agreement" between the witness and the Director (clause 7(1)(a)), must be written in plain language which is understandable to the witness. The agreement must contain information necessary to enable the witness to understand all aspects relating to his/her protection as well as a clear stipulation of his/her rights. See par 5.2 of Part Two of the submission for matters to be dealt with in such agreement, and in particular the proposal in respect of the parties who are required to sign the agreement.
(b) Provision should be made that a witness may be discharged from protection if he or she contravenes any provision of the "memorandum of agreement".
(c) Witnesses who were willing to testify in the first instance can not suddenly be discharged from the programme when they are no longer needed. A witness should still be entitled to protection for a limited period to enable him/her to once again be self sufficient.
(d) The Bill does not address the issue of permanent resettlement. The following proposals are made in this regard:
(i) An independent group must be specifically tasked to deal with the whole issue of resettlement.
(ii) One of the criteria should be that the witness must have been found to be an honest and reliable witness whose evidence contributed to the finding handed down.
(iii) Other factors to be considered are civil obligations of the witness,
insurance policies, career qualifications etc.
(iv) If a new identity is required to conceal the identity of the witness, then the relevant Home Affairs legislation needs to be amended urgently to incorporate such a change.
4. WIT 7
The question is posed as to whether there should not be a period of continued detention provided for until the review has been considered by the Minister against the decision not to provide protection (clause 7(1)(b) read with clause 8(1)).
1. WIT 3
A person whose application for protection has been refused or whose protection has been terminated (clause 7(4)) should, apart from the right of review, have a limited right to further temporary protection in the form of protective custody, as described in section 185A of the Criminal Procedure Act,1977. Provision should be made that such temporary protection will be the only temporary protection available pending the decision of the Minister.
2. WIT 6
Clause 8 should be amended to provide for the following:
(a) That the notice of discharge must state that the protected person is entitled to take the matter on review within seven days of receipt of such notice.
(b) The method of service of such notice.
(c) That the Minister must give the protected person a reasonable opportunity to state his or her case and, after the review, must confirm or set aside the decision of the Director.
(iv) That the Minister may give such direction with regard to the protection of the applicant or any member of his or her family or household as he or she may deem appropriate.
3. WIT 7
A witness who has been discharged from protection may, within 7 days of the notice of discharge, apply to the Minister to review such discharge. Such witness, in the meanwhile, is not afforded protection. Provision should be made that such notice of discharge must be given 7 days prior to the discharge so that this aspect can be clarified before the witness is released.
1. WIT 1
(a) The suspension of the prosecution of civil proceedings instituted against a protected person is considered unwarranted and against the interests of the administration of justice. It is unacceptable to provide for such suspension on the strength of an ex parte application since it may prejudice a claim of a bona fide plaintiff and might lead to an abuse of the protection system by a litigant in civil proceedings so as to escape civil liability.
(b) Clause 9 should be amended so as to provide for an order in the discretion of the judge to prevent the disclosure of the identity or whereabouts of a protected person, but without the power to suspend the proceedings.
2. WIT 6
(a) If the protected witness is a defendant, clause 9 could be seen as a limitation of the right of access to court for a third party (section 34 of the Constitution). It may result in a failure to prosecute the case and cases may even be dismissed. It entitles the State to become a party to a process frustrating the claims of a third party. A safeguard should be built into the Bill to protect such a third party. A qualifying clause would render it a reasonable and justifiable limitation (section 36 of the Constitution).
(b) In the memorandum of agreement between the witness and the Director, the witness must disclose and nominate the address of the Directorate to receive any court processes to be served upon him/her and must also disclose any proceedings which may be against him/her.
3. WIT 7
(a) Clause 9(1) seems to infer that the civil action would be against a witness who would be in the situation of being a defendant. The wording should be changed to include "any party".
(b) Clause 9(1) does not provide for how long the prosecution of the civil proceedings may be suspended and therefore it could be argued that it provides for the indefinite suspension of such proceedings. The indefinite suspension of a civil action in order to protect a witness, will infringe on the right to have a dispute decided before a court (section 34 of the Constitution). The Constitutional Court dealt, inter alia, with the infringement of the right to have a civil dispute heard by a court, in Azanian Peoples Organisation (AZAPO) v President of the Republic of South Africa and Others 1996 (8) BCLR 1015 (CC). The Constitutional Court adopted the view that the infringement of the right of access to courts was not to be treated lightly. In the light of the above, the view is expressed that such limitation will not easily pass constitutional scrutiny, especially where there is no specific right or constitutional provision to justify the infringement. (See submission for a discussion of the AZAPO-case.)
(c) If the suspension is temporary, a litigant may still be prejudiced. Section 35(3)(d) of the Constitution provides that, in the context of a criminal trial, every accused has the right "to have their trial begin and conclude without unreasonable delay". The view is expressed that a litigant in civil proceedings should equally enjoy a reasonable degree of finality in the matter of his or her litigation.
1. WIT 3
Clauses 11 and 12 do not provide adequate protection to a witness in a court. See the various proposals in this regard which are discussed in par (d) of WIT 3 and WIT 3a under the heading "General Comment".
2. WIT 6
Clause 11 should be amended to expressly state that "any information" includes any photographs, sketches or audio-visual footage or other material which may reveal either the identity or location of a protected person.
1. WIT 3
See comment in respect of clause 11.
2. WIT 7
Clause 12 should be amended by the insertion of the words "and prohibited from disclosing" after the words "be obliged to", which is to be read in conjunction with the provisions of clause 15 of the Act.
1. WIT 5
In extra-ordinary circumstances there can be a need to protect a witness in a foreign country. Provision must be made to regulate this issue.
1. WIT 2
Should "unauthorised person" in clause 15(1)(a) not be defined?
2. WIT 7
The provisions of clause 15(2) appear to give rise to a factual enquiry arising out of the trial of a person who is alleged to have contravened subclause (2). This is an aspect which should have been clarified at the time by the panel/Director.
1. WIT 3
Clause 16 should be amended so as to empower the Minister to make a regulation which should provide that "the Director may request and may negotiate with any local authority, organ of State, or any public or private body or organisation to make accommodation available, be it subsidised or rented accommodation or otherwise, for the temporary or permanent relocation of protected witnesses or persons". Although a local authority, body or organisation can not be compelled to make such accommodation available immediately, provision should be made that such authority, body or organisation should prioritise the request, unless it provides satisfactory reasons for its inability or reluctance to accede to the request.
2. WIT 6
The Portfolio Committee is urged to set in motion a consultative process in the drafting of the regulations. The insertion of the following clause is proposed:
"(1) The Minister must before making regulations under this Act:
(a) publish the draft Regulations in the Gazette for public comment within a specified time;
(b) send copies and invite comments on the draft regulations from-
(i) any relevant Ministry,
(ii) any relevant organisation,
(c) consider all comments timely received; and
(d) on request, report on the extent to which a specific comment or comments have been taken into account or if a comment was not taken into account, provide reasons therefore.
(2) The Minister must, within 30 days after making a regulation under this Act, table it in Parliament for consideration.".
3. WIT 7
The proposals regarding the numbers and qualification of members of panels (see WIT 7 under "Clause 5") could be incorporated in the envisaged regulations to be made under clause 16(1), but more specifically than suggested in paragraph (g) thereof.
1. WIT 3
Corruption must be added to the list of offences in the Schedule, but without any monetary limitation.
2. WIT 5
Corruption in government or the security force circles could possibly be added to the list of offences in the Schedule.
1. WIT 2
Although the need for a centralized structure and a uniform policy is recognized, care should be taken not to erode and render ineffective the very object of such a programme, namely the protection of witnesses required in courts and other fora in preference of centralizing judicial functions better performed by those located in proximity to witnesses.
2. WIT 3 and WIT 3a
(a) The Bill does not address the shortcomings of the present legislation adequately because it does not identify the role players and their functions properly.
(b) The Bill does not provide for the protection of witnesses who are in custody, whether as persons awaiting trial or sentenced prisoners, and also lacks provision as to how the Department of Correctional Services could be directed to fulfill certain functions.
(c) The Department of Welfare is an important role player and that must be embodied in the Bill. The role of the Attorneys-General should also be clearly stipulated since certain Attorneys-General had in the past been reluctant to fulfill any functions.
(d) The pre-trial physical and psychological protection of witnesses should be extended to the courtroom and be supported and reinforced by protective court procedures. The following proposals are made in this regard:
(i) Specific provisions in either the Bill or the Criminal Procedure Act, 1977, providing for "in camera hearings" is a necessity.
(ii) Forceful legislation to alleviate the burden on the State is necessary. Provision should be made that in the instances of clauses 11 and 12 and section 153(2) of the Criminal Procedure Act, 1977, the onus should be on the accused to convince the court that the requested order should not be made. It is proposed that the following subsection be added to section 153:
"(5A) Besides subsections (2) and (5), where a witness at criminal proceedings before any court is being protected in terms of the Witness Protection Act, Act of 1996 the Court should upon an application on behalf of a protected witness, direct that no person, other than such witness, shall be present at such proceedings, unless such person's presence is necessary in connection with such proceedings or is authorised by court if it is convinced by the party opposing such application that the interests of justice necessitates otherwise.".
(iii) Apart from shifting the above onus, provision should also be made to allow hearsay evidence in support of an application in terms of section 153 of the Criminal Procedure Act, 1977. Provision should further be made that the success of an application should not only depend upon the evidence of an applicant, that the applicant should not be obliged to testify at all and that the court should be empowered to consider the matter on hearsay evidence adduced in support of the application.
(iv) Provision should be made that such disputed application should, upon a request by any of the parties, be heard in camera and further, that the presiding officer could for purposes of that dispute also temporarily exclude the accused from the hearing whenever dealing with particularly sensitive issues and where the presence of the accused may jeopardise those issues.
(v) Section 154 of the Criminal Procedure Act, 1977, should be amended to
provide for the prohibition of publication of certain information relating to witnesses placed under protection. It is proposed that the following subsection be inserted into section 154:
"(3A) With regard to witnesses who have been or are being placed under protection in terms of the Witness Protection Act, Act .. of 1996, no person shall publish in any manner whatever, and at any stage before, during or after appearance in court, any information which reveals or may reveal:
(a) the identity of such a witness; or
(b) the place or the location of the place where such witness has been or is being protected, unless the witness authorises the publication of his/her identity, and provided that a court or the presiding judge or judicial officer may authorise the publication of so much of the witness's identification as he may deem fit if he is convinced that the publication thereof would be just and equitable."
Consideration could be given to the use of stronger words than "just and equitable", for example "if he or she is convinced that the interests of justice necessitate the publication thereof".
(vi) Prohibition of publication of identity of witnesses under protection should be embodied in an Act and, particularly, the Criminal Procedure Act, 1977, rather than merely in regulations.
(vii) The penalty prescribed by section 154(5) of the Criminal Procedure Act, 1977, should be increased substantially.
(viii) Witnesses under protection should be protected against unfair cross-examination regarding their protection, the places where they were protected or the identity of other witnesses under protection. Such protection should be embodied in legislation and not in the regulations because it should be a substantive right of protection. Since section 166 of the Criminal Procedure Act, 1977, provides for cross-examination, it follows that any limitation to such a right should be embodied in the same section, but it could also be considered to be part of section 210 of the said Act. Otherwise, since it concerns the protection of witnesses placed under the programme only, it could be dealt with in the Bill. The following draft provision could be considered in this regard:
"A witness that has been or is being placed under protection in terms of the Witness Protection Act, Act ... of 1996, should not at criminal proceedings before any court be asked any questions in order to reveal:
(a) the circumstances under which such witness has been or is being protected;
(b) the place or places or the location(s) of such place(s) where the witness has been or is being protected, or any other information concerning where he/she has been resettled; or
(c) the identity of any other witness that has been or is being protected in terms of the said Act, provided that the presiding judge or judicial officer may allow questions about so much of such information as he may deem the interests of justice to necessitate and provided further that he is convinced that the said information would not jeopardise the safety of the said other witnesses.
(ix) Provision should be made for testifying under a pseudonym, otherwise relocation in the same area would be futile.
(x) It would often not be necessary to exclude all public from the hearing, but only specific persons that may pose a threat to the witness or may intimidate him/her in court. The American example could possibly be followed in this regard. See par 2 of WIT 3a.
(e) The following is also suggested:
(i) Provision should be made for an order that where a protected witness testifies, spectators will only be allowed to attend the hearing upon proper identification of themselves and after a body search.
(ii) A video recorder, recording the behaviour of spectators in court, would be so intimidating that no spectator would venture to misbehave and intimidate a witness in court. This should be done in conjunction with the prior identification of everyone on the gallery, as well as specific legislation providing for stiff sentences in contravention of any prohibition of intimidation in court.
(iii) In order to avoid that a witness is intimidated by the presence of the accused or any spectator, consideration should be given to the introduction of a procedure in terms of which a protected witness is separated and screened off from the accused and public by means of a barrier of one way glass or by giving evidence through closed circuit television.
(iv) The insertion of a provision, providing that it would not be incumbent upon the State to provide full statements of protected witnesses as part of further particulars, but that a factual summary of his/her evidence would suffice until the day of the hearing of such evidence, should be considered.
3. WIT 4
The Department of Home Affairs intends to amend the Births and Deaths Registration Act, 1992, 50 as to provide that the new particulars of a person under the witness and protection plan. who applied to change his or her surname in terms of the above Act, may not be published in the Gazette.
4. WIT 5
(a) The disregarding in the Bill of the role of the Attorney-General or prosecutor is the biggest lacuna in the proposed legislation. The Attorney-General/Prosecution remains a very important role player and that must be reflected in the Bill. It is recommended that the present position, where an Attorney-General or a person designated by him or her must give his or her imprimatur during the provisional time of 30 days, must be enacted in the Bill.
(b) Witness protection services are presently provided by members of the SAPS. Situations do arise where those persons or the existing infrastructure can not be used. Statutory provision must be made that an alternative witness protection scheme may, in conjunction with the Minister, be used in exceptional circumstances.
(c) Prisoners sometimes provide valuable information. The Correctional Services Act, 1959, must be amended to provide witness protection in a prison setting for those type of witnesses.
(d) In sensitive investigations where politicians are implicated, witnesses would not voluntarily be part of a scheme where an official of the Department of Justice (the Director) is afforded full access to the statements. The Attorney-General can play an important role in that regard. In extreme cases there is a need for the use of a pseudonym.
5. WIT 6
(a) The alternative system which is proposed, is largely based and drawn from the views put forward by Mr Chris McAdam Head of the Witness Protection Unit of the Truth and Reconciliation Commission. A system that should strive for independence and in which potential witnesses and/or their families would feel safe and secure, is proposed. The witness protection programme must be seen by the public to be an independent tightly knit institution, able to perform its function effectively and without interference from other sectors. (See proposed structure of the witness protection programme discussed under "Clause 5".)
(b) A witness can not be placed in a better position as he or she would ordinarily have been prior to his/her resettlement. Care should be taken to ensure that a witness is not seeking protection to "disappear" from society for other specific reasons.
6. WIT 7
(a) In terms of regulation 7, made under section 185A(5) of the Criminal Procedure Act, 1977, a "place of safety" is presently a prison. Such a situation is most unsatisfactory and unacceptable because the prisons are overcrowded. The atmosphere of detention in a prison for a person who voluntarily requires detention and protection starts off at a disadvantage and this aspect needs to be addressed in any new proposed regulations providing for an appropriate place of safety. It is a priority to the implementation of the Bill that a "place of safety" should not be associated in any manner or form with a "prison". Proper facilities should be provided for and be made available to make the envisaged detention for the safety of persons acceptable.
(b) It is suggested that any person who apply for placement under witness protection or any person whose application for such protection has been refused and who has applied for the review of such refusal, should have the right to legal representation. If such person can not afford legal representation, he or she should have the right to have a legal practitioner assigned to him or her by the State and at State expense.
(c) Any provision that hearings may be held in camera, may also be open to constitutional challenge. Section 33(3(c) of the Constitution provides that every accused person has a right to a fair trial, which includes the right to a "public trial before an ordinary court". However, it 5 arguable that a witness may be entitled to protection in terms of the residual rights under section 12 of the Constitution, wnl.ch provides for freedom and security of the person.