CAPE BAR COUNCIL
24 August 1998
PREVENTION OF ORGANISED CRIME BILL, 1998
I have been asked by the Chairman of the Parliamentary Committee of the General Council of the Bar, Mr J J Gauntlett SC, to submit the attached report on the above Bill to you for your urgent attention and appropriate circulation.
Cape Bar Council
MEMORANDUM ON THE PREVENTION OF ORGANISED CRIME BILL, 1998
1. The Bar fully supports the Department of Justice in its endeavour to deal more effectively with organised crime and criminal gang activities. The following aspects of the Prevention of Organised Crime Bill, 1998, should however be reconsidered before the bill is finalised for presentation to parliament.
Legal Professional Privilege - Clauses 25 and 26
2.2.1 In Euroshipping Corporation of Monrovia V Minister of Agricultural Economics and Marketing and Others 1979(1) SA 637(C) Friedman J, (as he then was) dealt with legal professional privilege and called it "this fundamental right of a client". He further stressed that "... inroads should not be made into the right of a client to consult freely with his legal adviser, without fear that his confidential communications to the latter will not be kept secret" (at 643H).
2.2 In Baker V Campbell (1983) 49 ALR 385 legal professional privilege was recognised as "a mere manifestation of a fundamental principle upon which our judicial system is based" (at 417). In S V Safatsa and Others 1988(1) SA 868(A) our Highest Court of Appeal said with reference to the quoted passage in Baker V Campbell that "the same holds true for our own judicial system" (at 8851-J).
2.3 The justification for legal professional privilege "is to be found in the fact that the proper function of our legal system depends upon a freedom of communication between legal advisers and their clients which would not exist if either could be compelled to disclose what passed between them for the purpose of giving or receiving advice". Baker V Campbell (supra) as quoted in S V Safatsa and Others (supra) at 8868-C.
3.1 Should clauses 25(1 )(c) and 26(1) of the bill become law in their present form, serious inroads will be made into "this fundamental principle upon which our judicial system is based".
3.2 In terms of clause 25(1)(c) a person being examined as contemplated in clauses 7 or 20 of the bill, will not be excused from answering any question or from producing any document or other thing on the ground that the answer or production would disclose information that it the subject of legal professional privilege, unless that disclosure relates to information communicated to a legal representative so as to enable such legal representative to provide advice, to defend or to render other legal assistance to a client in connection with an offence under any law of which the client is charged, in respect of which he or she has been arrested or summonsed to appear in the High Court or in respect of which an investigation with a view to instituting criminal proceedings is being conducted against him or her, and the client does not consent to the disclosure or production.
3.3 The Bar is strongly opposed to any attempt to curb, in any manner, the safeguard that legal professional privilege provides to ensure that clients can make full and frank disclosures to their legal representatives in the knowledge that what they say will remain confidential, unless they consent to the disclosure thereof. As is pointed out above, legal professional privilege is the cornerstone of the relationship between a legal adviser and his client and a fundamental principle of our judicial system. The Bar consequently opposes this attempt to restrict the ambit of legal professional privilege. It should be borne in mind that legal professional privilege is as applicable in civil matters as it is in criminal matters.
3.4 The same objection applies to clause 26(1) of the bill. It has to be pointed out that in this clause the reference to "the High Court" highlighted above is replaced with a reference to 'in Court". It is not clear at all why the draftsman made this differentiation between the two clauses.
3.5 In passing it must be pointed out that clause 26 also affects the position of trust that exists between the taxpayers and the South African Revenue Service as to the confidentiality of information supplied to that body. That it is the clear intention of the draftsman to totally breach this confidence flows from the provisions of clause 28, which provides for the 'sharing of information" between the Commissioner of the South African Revenue Services and the various directors referred to in the bill.
4. Other aspects of the bill that warrant discussion are the following:
4.1 Clause 2(1)
4.1.1 Clause 2(1)(a)(i) makes it an offence for any person to receive or retain property derived, directly or indirectly from a pattern of illegal conduct. The sub-section is however silent on the cardinal question of whether knowledge on the part of the person in question that the property was derived from a pattern of illegal conduct, is an element of this offence. In view of the wording of sub-clause 2(1 )(a)(ii), the ambit of the offence that clause 2(1)(a)(i) creates, should be clearly defined in this respect.
4.1.2 Sub-clauses 2(1)(a)(ii) and (iii) should presumably be read as a single sub-clause, as sub-clause (ii) makes no sense as it stands at present.
4.1.3 The concept of holding a person criminally liable on the basis that he or she "ought to have known" that, for instance, property that he or she invested in the acquisition of an interest in an enterprise derived directly or indirectly from a pattern of illegal conduct, is in our view, casting the net too wide, especially in view of the fact that sentence of up to 30 years' imprisonment can be imposed for a contravention of this section. The same misgivings apply to sub-clause 2(1)(d) of the bill.
4.2 Clause 2(2)
The provision made in clause 2(2) for the leading of inadmissible evidence to prove that a person is involved in a pattern of illegal conduct so as to secure a conviction in terms of section 2(1), provided that such evidence would not render the trial unfair, will be impossible to apply in practice. It is unthinkable that a person, who is convicted of a criminal offence on the basis of inadmissible evidence, could possibly have had a fair trial.
4.3 Clause 2.3
4.3.1 The provisions of clause 2(3)(b) simply do not make sense. The concept "organised crime" is not defined in the bill and it is impossible to understand what the draftsman had in mind.
4.3.2 In any event, the national director should certainly only authorise a prosecution when he is of the view that sufficient admissible evidence is available against a particular person (or persons) to enable the prosecuting authorities to institute a prosecution with a reasonable prospect of success, and clearly not when there is only "a reasonable suspicion that a crime has been committed". The national director should be led in his decision to authorise a prosecution by the availability of admissible evidence to prove the facts necessary for a conviction, and not merely by a reasonable suspicion that a crime was committed.
4.3.3 In any event, the safeguard" provided for in clause 2(3)(a), to make prosecutions dependent on the written authorisation of the person in control of the prosecuting authority, is a relic of the apartheid era usually resorted to in an attempt to make the provisions of some or other draconian piece of legislation more palatable to the public, and must certainly not be resorted to again.
5. Clause 12(2)
The words in the last line of clause 12(2)(c) "If the owner of that immovable property has not made the payment referred to in that subsection to the State" do not make any sense at all. We presume that the words remained in that sub-clause per incuriam.
6. Clause 18
6.1 In terms of clause 8(1)(a), the High Court shall "unless cogent reasons exist to the contrary" declare property forfeited to the State if it finds on a balance of probabilities not only that the property is concerned in the commission of an offence but also if it finds on a balance of probabilities that the property is concerned in the "suspected Commission of an offence" which forms part of a pattern of illegal conduct. Moreover the setting aside of a conviction for an offence which forms part of a pattern of illegal conduct does not affect the validity of such an order which was made before or after the conviction was set aside and which was based on that offence.
6.2 The Bar cannot support the forfeiture of property based merely on a suspicion that it is concerned in a pattern of illegal conduct. The mere fact that such a forfeiture order can be made if a court finds on a balance of probabilities that the property in question is so concerned in the commission of an offence which forms part of a pattern of illegal conduct, is already a grave inroad into the individual's right of ownership. Forfeiture orders as a result of the fact that property was concerned with the commission of an offence, usually follow on criminal convictions where the commission of the offence was proved beyond reasonable doubt. To enable the authorities to forfeit a person's property on a mere suspicion that it is concerned in the commission of an offence as clause 8(1 )(a) stipulates, cannot be supported.
7. Clause 28
Cause 28(1) stipulates that any notice authorised or required to be given to a person under this chapter is, in the case of a deceased person, sufficiently given to the person's legal representative. The question immediately arises, what if the person did not have a legal representative, and if he had, what must the legal representative do with such a notice where he is not in a position to obtain instructions from his "client" . It is suggested that consideration should be given to provide for such notices to be given to the executor of the deceased estate and/or the master of the High Court which deals with the estate of the deceased person.
8. Clause 43
8.1 Clause 43 stipulates that if a court, after having convicted an accused of any offence, other than an offence contemplated in chapter 5, finds that the accused was a member of a criminal gang at the time of the commission of the offence, it may regard such factor as an aggravating factor for sentencing purposes, despite the fact that the offence of which the accused was convicted had nothing to do with the fact that he was such a member. Surely the fact that an accused was a member of a gang at the time of the commission of an offence can only be an aggravating factor if there is some nexus between that fact and the commission of the offence.
8.2 Moreover, if the definition of "criminal gang member" in clause 1 (iv) is considered, a court may find that a person is a criminal gang member if he is, inter alia, identified as such "by a documented reliable informant" (clause 1(iv)(c)) or is identified as a criminal gang member "by an informant of previously untested reliability and such identification is corroborated by independent information" (clause 1 (iv)(e)). Certainly it should be left to the courts to decide whether it has sufficient cogent evidence to find that a person is or was a gang member, without having to resort to prescribe that the court can rely on "independent information" or "documented reliable informants" (whatever that may mean).
8.3 Our courts will certainly regard a gang related offence as an aggravating factor, without the need to legislate therefor. Compare in this regard the provisions of section 2 of Act 1 of 1988 which provides that where it is proved that the faculties of a person convicted of any offence were impaired by the consumption or use of a substance when he committed the offence, the court may regard that fact as an aggravating factor for sentencing purposes. This section is simply not applied in practice.
Prepared on behalf of the Chairman of the Parliamentary Committee of the GCB