19 August 1998 PREVENTION OF ORGANISED CRIME BILL, 1998
The following comments are made in respect of the above-mentioned Bill:
1.AD CLAUSE 5(1) The identified functionaries who may launch the contemplated application are in accordance with section 179(1) of the Constitution (Act 108 of 1996). However, the National Prosecuting Authority Act, 1998 (Act 32 of 1998) has now been promulgated. Section 4 of the latter Act (as well as various other sections) provide that the prosecuting authority comprises the National Director, Deputy National Directors, Directors, Deputy Directors and prosecutors. In order to make the provisions of clause 5(1) complete it should also contain a reference to "Deputy National Directors" and "Deputy Directors". This anomaly also appears in various other clauses of the Bill, e.g., 6,15, 17, 20, 25 and others.
2. AD CLAUSE 5(3) The word "or" in the expression "for the or district concerned" is misplaced.
3. AD CLAUSE 6(1) Clause 6(1) empowers the High Court to grant a restraining order prohibiting any person "from dealing in any manner" with the property forming the subject-matter of the order. No provision is made therein for orders of seizure. Clause 10(1) does, however, clothe a police officer with such power. In terms of clause 10(2) the property so seized must be dealt with subject to the directions of the High Court. Clause 6(1) ought to be extended to provide the court hearing an application for a restraining order to also order seizure where the circumstances justify it.
4. AD CLAUSE 6(3) The guideline contained in this sub-clause is confined to an "order contemplated in subsection 1(b)". The purpose why this is so is not clear and it is recommended that the '"(b)" be deleted.
5. AD CLAUSE 8(a) The form and manner of service of the contemplated notice is not specified. It may be argued that clause 33 is applicable. However, clauses 5(3) and 5(4) make specific provision for these aspects in respect of a "notice of suspicion". A restraining order has far-reaching consequences and it is recommended that these aspects also be specified in the same way as those in respect of a "notice of suspicion".
6. AD CLAUSE 15 It is not clear what the "order under this section" is. If it Is the order concerning the taxation of expenses (clause 15(3)) only, then the necessity for this clause can be questioned. It could be more effectively catered for under clause 13.
7. AD CLAUSE 16(1)(a) The word "recission" is incorrectly spelt.
8. AD CLAUSE 16(1)(b)(ii) This provision contemplates an application for rescission in order to achieve compliance therewith. The sub-clause should rather merely provide for the lapsing of the order on conclusion of the proceedings in question.
9. AD CLAUSE 16(2)(b)(ii) Sub-clauses (bb) and (cc) make specific provision for matters pertaining to the curator bonis. Provision ought also to be specifically made for the substitution of that functionary.
10. AD CLAUSE 17(2) (a) In view of the restriction contained in clause 21(1) regarding the persons who may note an appeal, it is essential that there be proper compliance with clause 17(2). The comments contained in paragraph 5 are therefore equally applicable to this clause.
(b) Clause 18(3) provides for an order being made in the absence of a person who is entitled to be given notice of the application. This also demands that the clause 17(2) notice be properly served.
11. AD CLAUSE 16(6)(b) The word "off" should be '"of".
12. AD CLAUSE 21(1) In view of the provision of clause 18(3) a person who, for cogent reasons was absent when the application was heard, should also be afforded the right to note an appeal. Alternatively, such a person should be afforded the opportunity to apply for the rescission of the order.
13. AD CLAUSE 25(1)(c)
(a) This provision appears to be confusing in that it initially excludes the legal professional privilege but then in sub-clauses (i) and (ii) reintroduces it.
(b) Section 201 of the Criminal Procedure Act, 1977 (Act 51 of 1977 recognises the principle of legal professional privilege. In matters where that section is not applicable the common law rule will apply.
(c) It is recommended that the wording "Subject to any statutory provision or the common law pertaining to professional privilege," be inserted at the commencement of clause 25(1) and that sub-clause (c) be scrapped.
14. AD CLAUSE 42(1) (a) The expressions "section 41(a) or (b)" and "section 41 (c)(d) or (e)" should read "section 41(1)(a) or (b)" and "section 41(1)(c), (d) or (e)".
(b) Having regard to the tenor of the preamble to the Bill (e.g. "To introduce extra-ordinary measures so as to combat organised crime..." and "AND WHEREAS the pervasive presence of criminal gangs in many communities is harmful to the well being of those communities, ….") the prescribed maximum penalties appear to be lenient. Clause 42(2) creates the circumstances which are regarded as being aggravating. In order to give proper effect to the intention with this legislation, the maximum period of imprisonment should be increased to five years in respect of each of the offences created by clause 41(1).