Summary of submissions [B118-98]
SUMMARY OF REPRESENTATIONS ON PREVENTION OF ORGANISED CRIME BILL, 1998

1. INTRODUCTION
Most of the commentators support the Bill and is of the opinion that the Bill will go some way in addressing the problem of organised crime and criminal gang activities. There are also a few commentators that, although they support the Bill, are of the opinion that a few amendments are necessary before the Bill can be approved.

2. CONSTITUTIONAL ISSUES
Some of the commentators are of the view that the Bill contains many novel features which could attract constitutional challenge. Some of these issues are the following:

(a) The Attorney-General: Eastern Cape (Org 3) is of the view that one of these constitutional issues may be the way in which membership of a criminal gang can be proved. In this regard he refers to the definition of "criminal gang member" in clause 1 and the provisions of clause 2(2). Clause 2(2) provides that the court may hear evidence that may show that the accused is involved in a pattern of illegal conduct, notwithstanding that such evidence might otherwise be inadmissible, provided that such evidence would not render a trial unfair. The Attorney-General: Eastern Cape holds the view that this type of proof "departs radically from all accepted rules of evidence".

(b) The Attorney-General: Free State (Org 15) is of the view that clause 25 appears to make enormous inroads into various fundamental rights of the Constitution.

(c) Nadel (Org 35 and oral submissions) also holds the view that the Bill is unconstitutional. Although Nadel does not refer to any particular clause it is argued that under certain provisions of the Bill, "suspects and other innocent people will not have the right to remain silent...". Nadel is also of the opinion that the Bill breaches a number of other fundamental freedoms of the Bill of Rights, which include the right to freedom of opinion, religion and belief; the right to freedom of association; the right to the free use and practice of language and culture of choice; the right of privacy; and the right to property.

(d) The Human Rights Committee (Org 32) is of the opinion that the definitions of "criminal gang", "criminal gang member" and "pattern of criminal gang activity" are so vague that they could be challenged constitutionally. In paragraph 3 of its submission, the HRC refers to some of the provisions that they regard to be unconstitutional.

(e) There are also a few other provisions that will, according to some commentators, attract constitutional challenges. These provisions will be deal with when discussing these particular clauses.

Comment
We are of the opinion that the following comments of the Chief Justice (Org 23, paragraph 5) are relevant:
"Many provisions of this Bill are innovative and far-reaching. It is understood why. However, although much of the Bill relates to matters concerning the judicial function, I feel that the best test of its provisions will be by way of the judicial application and interpretation when eventually the enactment is law.".

3. IMPLEMENTATION OF BILL

3.1 Some of the commentators are of the opinion that the proper application and the usefulness of the provisions contained in the Bill are dependent upon adequately trained and experienced police officials and prosecutors. In this regard the Attorney-general: Eastern Cape (Org 3) comments as follows:

"The Bill should only be used as a very specialised weapon in the hands of a very specialised prosecuting team, which has had every opportunity for careful preparation.

It is therefore imperative that the Bill be reinforced by the commitment of sufficed prosecuting and police resources to make it work on the basis of selective application in those cases where there is a good chance of successful prosecution.".

3.2 The South African Institute of Race Relations, (Org 30) also emphasizes the point that it is crucial to the Bill's success that the people dealing with it are properly trained and knowledgeable of its provisions. In this regard the Institute remarks as follows:
"It is submitted that structures, investigation teams, training courses and the requisite personnel are adequately developed and trained prior to the promulgation of the Prevention of Organised Crime Act.".

3.3 The Human Rights Committee of South Africa (Org 32) also raises the following questions with regard to the implementation of the Bill:
If passed, do we have sufficient police members to deal with the consequences of the Bill?
Do we have the space in our places of safety to accommodate the numerous youngsters who will undoubtedly be caught in the web of this law?".

See also the comments of the Attorney-General: Free State (Org 15, paragraph 4.2).

4. COMMENTS ON SPECIFIC CLAUSES
4.1 Clause 1
4.1.1 Many of the commentators criticise the definitions of "criminal gang", "criminal gang member" and "pattern of criminal gang activity". In this regard the following comments are important:

(a) The Parliamentary Committee of the General Council of the Bar (Org 11) ("GCB") specifically refers to this definition of "criminal gang member" and is of the opinion that 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 members, without having to resort to prescribe that the court can rely on "independent information (clause 1(iv)(e)) or "documented reliable informants" (clause 1(iv)(c)).

(b) The Judge President" Northern Cape Division (Org 13) points out that the definition of "criminal gang member" refers to "usual criminal gang activities" and it is unclear to him what is meant by "usual" criminal gang activities. According to him there would be no vagueness if the activities which are contemplated are described with reference to the first and/or second schedules of the Bill.

(c) The Attorney-General: Free State (Org 15, paragraph 6.1) is of the opinion that it is not wise to rely on the evidence of informants because then it will be difficult to protect them against exposure when the evidence is challenged. Furthermore, he is not in favour of a list of factors and is of the opinion that mere prima facie evidence would be adequate.

(d) The Judge President: Pretoria (Org 17) refers to various phrases in the definition of "criminal gang member" and therefore holds the view that the definition is ambiguous.

(e) The Attorney-general: Natal (Org 18, paragraph 2.2) and the South African Police Service (Org 21) propose the following amendments to the definition of "criminal gang member", respectively:

(i) On page 4, from line 17, to omit "when applicable, take into account two or more of" and to substitute "have regard to".

(ii) On page 4, from line 11, to omit the definition of "criminal gang" and to substitute "'criminal gang' means a formal or informal ongoing organisation, association, or group that has as one of its primary activities, the commission of criminal acts and that consists of three or more persons of whom two or more are individually or collectively engaged in or have engaged in a pattern of criminal gang activity;".

(f) The Judge President: Pretoria (Org 17) is of the opinion that the definition of "criminal gang" is ambiguous.

(g) The Attorney-General: Natal (Org 18) proposes the following amendment to the definition of "criminal gang":

On page 4, from line 11, to delete the definition of "criminal gang" and to substitute "(iii) 'criminal gang' means a formal or informal organisation, association or group that is as such involved in the commission of criminal acts through the individual or collective activities of its members;".

(h) The Judge President: Northern Cape Division (Org 13) refers to the definition of "pattern of criminal gang activities" and is of the opinion that it seems artificial and grammatically wrong to describe two acts as a "pattern".

(i) The Attorney-general: Natal (Org 18) proposes the following amendment to the definition of "pattern of illegal conduct:

On page 6, from line 26, to omit the definition of "pattern of illegal conduct" and to substitute "(xiv) 'pattern of illegal conduct', means the continuous or repeated participation or involvement in illegal conduct, including two acts of illegal conduct not more than 10 years apart (excluding any period of imprisonment);".

4.1.2 Other amendments proposed to clause 1 are the following:

(a) The Chief Justice (Org 23, paragraph 1) proposes the following amendments to clause 1:

(i) On page 4, in line 12, to omit "primary".

(ii) On page 6, in line 18, to omit "legal entity" and to substitute "juristic person".

(b) According to the South African Police Service (Org 21, paragraph 3.1), nor the Criminal Procedure Act, nor the South African Police Services Act contains a reference to "police officer". It is therefore proposed that the term "police officer" on page 4, in line 7, be substituted for "police official".

(c) The South African Institute of Race Relations (Org 30) proposes that the "authorised police officer" in Clause 1 should have a specified minimum rank for the purposes of the restraining orders provision of the Bill. Furthermore it is suggested that "unlawful activity" should mean a criminal offence or offences.

(d) Nadel (Org 35) is of the view that the Bill contains "a combination of wide and arbitrary definitions - of a criminal gang, of criminal gang members, of a pattern of illegal conduct, of a pattern of criminal gang activity, of an enterprise - " which make provision for the potential widespread criminalisation of black working class people.". Nadel alleges that because the definitions are very wide, guilty and innocent persons could be tarred with the same brush.

4.2 Clause 2
4.2.1 Clause 2(1)
The following comments were received on clause 2(1):
(a) The GCB (Org 11, paragraph 4.1) is of the opinion that clause 2(1)(a)(i) is silent on the question of whether knowledge on the part of the person on question that the property was derived from a pattern of illegal conduct, is an element of this offence.

Comment
It should be pointed out that clause 2(1)(a)(i) does not, on its own, create an offence. Clause 2(1)(a)(i) should be read with clause 2(1)(a)(ii) and (iii). All three elements, which include knowledge as contained in clause 2(1)(a)(ii), must be present.
(b) The GCB (Org 11) is furthermore of the opinion that the concept of holding a person criminally liable on the basis that he or she "ought to have known" is casting the net to wide.

Comment
Culpa is already required in terms of the Proceeds of Crime Act, 1996.

(c) The Banking Council of South Africa (Org 14) is of the opinion that clause 2(1)(a) could easily apply to the normal commercial activities of a bank. The question is what should the Bank do under these circumstances? The Banking Council consequently proposes the following amendment:

On page 8, after line 11, to insert the following proviso:
Provided that where this subsection relates to the normal commercial activities of a bank registered in terms of the Bank Act, 1990, it shall be a defence to a charge that the accused had reported the facts and suspicions as required under section 31 of the Proceeds of Crime Act, 1996;

(d) According to the South African Police (Org 21, paragraph 3.4) conspiracy is already dealt with in section 18(2)(a) of the Riotous Assemblies Act, 1956 (Act No. 17 of 1956), and therefore clause 2(1)(e) is superfluous.

Comment
Most of the other offences contained in the Bill may be brought under one or other provision contained in our statutory law or common law. However, to include the general offence of conspiracy under the heading "Riotous Assemblies Act" is clearly wrong and furthermore the provisions contained in the Bill are an attempt to address conspiracy with regard to organised crime and not any petty offence.

4.2.2 Clause 2(2)
The GCB (Org 11) and the Judge President: Pretoria are of the opinion that the meaning of section 2(2) is unclear. The GCB is further of the opnion that 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. The South African Police Service (Org 21, paragraph 3.5) is of the view that this clause throws suspicion on the constitutionality thereof and in particular where the evidence obtained violates another person's fundamental rights.

4.2.3 Clause 2(3)
The following comments were received on this clause:

(a) According to the GCB (Org 11), clause 2(3)(b) does not make sense. The GCB is of the opinion that the National Director should only authorise a prosecution when he or she is of the view that sufficient admissible evidence is available against the suspect to enable the prosecuting authorities to institute a prosecution with a reasonable prospect of success and not where there is only "reasonable suspicion that a crime had been committed". The GCB is furthermore of the view that the safeguard in clause 2(3)(a), namely to make prosecutions dependent on the written authorisation of the head 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 not be resorted to.

(b) According to the Judge President: Northern Cape (Org 13), clause 2(3)(b)(i) serves no purpose. If the National Director is to be of the opinion that an organised crime "has been committed" then the reference to a "reasonable suspicion" that a crime has been committed is meaningless. He is also of the view that the reference to "organised crime" is vague and a definition in clause 1 should be considered.

(c) The Banking Council of South Africa (Org 14) also proposes the inclusion of a definition of "organised crime" whereas the Attorney-General: Natal (Org 18), paragraph 3.2) also questioned the need for the requirement in clause 2(3)(b).

(d) The South African Police Service (Org 21, paragraph 3.6) proposes the following definition of "organised crime":
"organised crime" means the systematic commission of crimes motivated by a craving for profit or power.".

(e) With regard to the inclusion of a definition of "organised crime", the South African Institute of Race Relations (Org 30, paragraph 2.1) remarks as follows:
"It is submitted that, given the broad definition given to 'pattern of illegal conduct', and an 'enterprise', the term organised crime be defined by the Bill so as to exclude organisations and enterprises which are not involved in organised crime ........ - It is submitted that a definition of organised crime excluded people who engage in crime - both on an organised basis-for purposes other than financial gain profit or greed.".

(f) The South African Police Service also purpose the following new clause 2(3)(b):
"The National Director shall only authorise prosecution if he or she is of the opinion that an offence contemplated in subsection (1) has been committed.".

4.3 Clause 3
The Attorney-General: Natal (Org 18, paragraph 4) suggests that a period of imprisonment combined with a fine, should be included as a sentencing option.

Comment
That is the position in the Bill.

4.4 Clause 4

(a) The South African Police Service (Org 21, paragraph 3.7) is of the opinion that separate criminal forfeiture provisions will promote legal uncertainty and suggests that the Proceeds of Crime Act, 1996, should regulate criminal forfeiture and the Organised Crime Bill, 1998, civil forfeiture.

(b) The Judge President: Northern Cape Division (Org 13) is of the view that the expression "gross profits" in clause 4(3) is unclear. He suggests that if it is intended to convey that such a person may be fined not more than twice the monetary value of such proceeds, that is what should be said. The South African Police Service (Org 21) also questions the meaning of the expression "gross profits" and proposes the deletion of this subclause as it is too prescriptive.

(c) The Judge President: Northern Cape (Org 13) proposes the following amendment to clause 4(4)(b):
On page 10, in line 10, to omit "established" and to substitute "establishes".

(d) The South African Police Service (Org 21, paragraph 3.9) proposes that the expression "bona fide purchaser" in clause 4(4)(b) should also make provisions for persons other than purchasers, for instance, persons who inherited property.

(e) The Attorney-General: Free State (Org 15, paragraph 6.2) is of the view that clause 4(4)(b) should also contain a stayed period of 30 days pending appeal procedures.

4.5 Clause 5
4.5.1 Clause 5(1)

The following comments were received on clause 5(1):

(a) The Chief Magistrate: Pretoria (Org 10) points out that in view of the provisions of the National Prosecuting Authority Act, 1998 (Act 32 of 1998), clause 5(1) should also contain a reference to "Deputy National Directors" and "Deputy Directors".

Comment
We agree with this proposal and the following amendment is proposed:
On page 6, in line 27, after "Constitution" to insert:
and for the purposes of sections 6, 15, 17, 20 and 25 includes a Deputy National Director and a Deputy Director referred to in section 1 of the National Prosecuting Authority Act, 1998 (Act No. 32 of 1998).

(b) The Attorney-General: Free State (Org 15, paragraph 6.3), the Judge President: Pretoria (Org 17, paragraph (d) the Chamber of Mines of South Africa (Org 22) and the SAPS (Org 21, paragraph 3.10) are of the opinion that the purpose of clause 5 is unclear.

(c) The Judge President: Northern Cape (Org 13) questions the meaning of the phrase "property concerned in the Commission of an offence". He proposes the inclusion of a definition in clause 1.

4.5.2 The Chief Magistrate: Pretoria (Org 10) proposes the following amendment to clause 5(3):
On page 10, in line 34, to omit "or" where it appears for the second time.

4.5.3 The Banking Council of South Africa (Org 14) is of the opinion that given the focus of the Bill on organised crime, and in particular gang activities, clause 5(4) could pose challenges for messengers of the court. It is therefore suggested that "provision should be made to permit summons to be served by a policeman if the circumstances warrant it.".

4.6 Clause 6
4.6.1 The Chief Magistrate : Pretoria (Org 10) points out that no provision is made in clause 6(1) empowering the Court to grant orders of seizure. Although clause 10(2) empowers a police officer to seize property under certain circumstances, it is suggested that clause 6(1) should be extended to provide the court hearing an application for a restraining order to also order seizure where the circumstances justify it.

COMMENT
We support this proposal.

4.6.2 The Chief Magistrate: Pretoria (Org 10) and the Judge President: Northern Cape (Org 13) propose amendments to clause 6(3) of the Bill. Since clause 6(3) is not contained in the present Bill, these comments are not relevant anymore.

4.7 CLAUSE 7
4.7.1 The Judge President: Northern Cape (Org 13) is of the view that the reference in clause 7(1)(a)(ii) to "any property" is too wide, and can lead to abuse. He proposes that "only possession etc. of property in regard to which there is a reasonable suspicion that it is of the nature contemplated in clause 5 should render the possessor liable to examination, and then only in respect of that property.".

4.7.2 The Judge President: Northen Cape (Org 13) proposes the following amendment to clause 7(2)(a):
On page 12, in line 29, to omit "order" and to substitute "orders".

4.7.3 The South African Police Service (Org 21) holds the view that clause 7(2)(a)(ii) is unnecessary because it is already covered by the offence of perjury.

COMMENT
We do not agree with this argument. For common law perjury you need to proof two conflicting affidavits. For statutory perjury you only need one "false" statement.

4.8 CLAUSE 8
The Chief Magistrate: Pretoria (Org 10) points out that the form and manner of service of the contemplated notice is not specified in clause 8(a), and since a restraining order has far-reaching consequences it is recommended that these aspects should be specified in the same way as those in respect of a "notice of suspicion".

COMMENT
We agree with this proposals. It is recommended that a mutatis mutandis provision be included in clause 8.

4.9 Clause 11

The Judge President: Northern Cape (Org 13) is of the opinion that the phrase "to perform any particular act" in clause 11(1)(a)(i) is to vague and he proposes the following amendments:

(a) On page 14, from line 19, to omit subparagraph (i) and to substitute:

"(i) to assume control over the property;"

(b) On page 14, in line 22, after "property" to insert "and to do any act necessary for that purpose".

COMMENT
We support these amendments.

4.10 Clause 12
4.10.1 The comments of the GCB (Org 11) and the Judge President: Northern Cape (Org 13) in respect of clause 12(2)(c) are not relevant anymore because the expression referred to, does not appear in the clause anymore.

4.10.2 The Judge President: Northern Cape (Org 13) points out that the rights and obligations of the trustee or liquidator in respect of the property are left in the air. He suggests an amendment to provide what they should do with the property.

4.11 Clause 13

4.11.1 The Judge President: Northern Cape (Org 13) points out that a High Court cannot make provision for living expenses and legal expenses. "It can only order that such provision be made and then only if it indicates by whom or out of what fund such provision is to be made.".

4.11.2 The South African Police Service (Org 21, paragraph 3.13) is of the view that clause 13(2)(b) is not clear, because it is unclear whether "property" refers to restrained or unrestrained property. They are further of the view that criminals involved in organised crime should not be in a better position then ordinary criminals or any other person as far as legal representation or expenses are concerned. They are also of the view that it is unclear how one can bring "your interests in immovable property within the jurisdiction of a High Court that has granted a restriction order" (See also the comments of the Judge Present: Northern Cape (Org 13)).

4.11.3 The Judge President: Northern Cape (Org 13) proposes the following amendment to clause 13(2)(b):

On page 16, in line 42, to omit "is" and to substitute "was".

4.12 Clause 15
4.12.1 The Chief Magistrate: Pretoria (Org 10) points out that it is not clear in clause 15(1), in the words following paragraph (b), what the "order under this section" is. He is of the view that if it is the order concerning the taxation of expenses referred to in clause 15(3), then the necessity for this clause can be questioned. He therefore proposes that it could be more effectively catered for under clause 13 which deals with orders in respect of living and legal expenses. (See also SAPS (Org 21, paragraph 3.15)).

4.12.2 The Judge President: Northern Cape (Org 13) proposes the following amendment to clause 15(4):

(a) On page 18, in line 14, to omit "except as ordered by the High Court" and to substitute "unless ordered by the High Court to do so"; and

(b) on page 18, in line 18, to omit "otherwise" and to substitute "other".

COMMENT
We agree with these proposals.

4.13 Clause 16
4.13.1 The Chief Magistrate: Pretoria (Org 10) proposes the following amendment to clause 16(1)(a):

4.13.2 On page 18, in line 21 to omit "recission" and to substitute "rescission".
In respect of clause 16(1)(b)(ii) the Chief Magistrate: Pretoria (Org 10) recommends that this clause should "merely provide for the lapsing of the order on conclusion of the proceedings in question.".

COMMENT
We are of the opinion that it is better to place a specific duty on the court to rescind the order. Although the suggestion that the order should lapse automatically will have the same effect, there is always the danger that no person will specifically attend to the matter and then the order will be outstanding for an indefinite period.

4.13.3 The Chief Magistrate: Pretoria (Org 10) points out that since clause 16(2)(b)(ii)(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.

4.13.4 The Judge President: Northern Cape (Org 13) proposes that it should be indicated in clause 16(3)(a) what orders are contemplated i.e. orders in terms of which sections?

4.14 Clause 17
4..14.1 According to the Judge President: Northern Cape (Org 13) the final phrase "when the forfeiture order takes effect" in clause 17(1) is meaningless.

4.14.2 The Chief Magistrate: Pretoria (Org 10) is of the opinion that, 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). It is therefore recommended that the form and manner of service also be specified. He also points out that since 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, it is essential that the clause 17(2) notice be properly served.

4.14.3 The Chamber of Mines of South Africa (Org 22) suggests that there should be a specific obligation on the State, and in particularly the court, to return any property to any person who may otherwise be legally entitled thereto. Furthermore the Chamber suggests that there should also be an obligation on the State to locate such lawful owners, etc.

4.15 Clause 18
4.15.1 According to the GCB (Org11) they cannot support the forfeiture of property based merely on a suspicion that it is concerned in a pattern of illegal conduct. They are of the opinion that the mere fact that 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.".

4.15.2 The Judge President: Northern Cape (Org 13) proposes the following amendment to clause 18(3):

On page 20, from line 24, to omit subclause (3) and to substitute:
(3) The absence of a person, despite proper notice in terms of section 17(2) having been given, does not prevent the High Court from making the order.

4.15.3 According to the Banking Council of South Africa (Org 14) the constitutionality of Clause 18(4) is problematic, and according to the Judge President: Pretoria (Org 17, paragraph (e)) the meaning of Clause 18(4) is unclear and difficult to understand.

4.15.4 The Chief Magistrate: Pretoria (Org 10) proposes the following amendment to Clause 18(6)(b):

On page 20, in line 34, to omit "of" and to substitute "off".

4.16 Clause 19

The Judge President: Northern Cape (Org 13) is of the opinion that whereas clause 19(1) empowers the court when it makes a forfeiture order, "or at any time thereafter" to make the order envisaged, clause 19(5) conflicts with this.

4.17 Clause 20

4.17.1 The Banking Council of South Africa (Org 14) points out that it generally takes 14 days for posted Government Gazettes to reach parties, and therefore the Council proposes the following amendment:

On page 22, in line 12, to omit "30" and to substitute "60".

4.17.2 The Banking Council also suggests that clause 20(8) should refer not only to "interests in property" but also to "property".

4.18 Clause 21

4.18.1 The Chief Magistrate: Pretoria (Org 10) argues that in view of the provisions 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.

4.18.2 The Judge President: Northern Cape (Org 13) proposes the following in respect of Clause 21:

(a) On page 24, in line 5, to omit "19(3)" and to substitute "17(1)".

(b) If the application was heard by a High Court, the appeal should be to the Full Bench of the Court.

(b) A person that did not receive a notice should have the right to appeal.

4.19 Clause 22
4.19.1 The Judge President: Northern Cape (Org 13) proposes the following amendment to clause 22(1):

On page 24, from line 10, to omit subclause (1) and to substitute:
"(1) Upon the making of a forfeiture order the property subject to the order vests in the curator bonis on behalf of the State.".

The Judge President: Northern Cape further suggests that provision should be made for the appointment of a curator bonis.

4.20 Clause 23

The Banking Council of South Africa (Org 14) proposes the following amendment to clause 23(1):
On page 24, in line 17, to omit "19(2)" and to substitute "19(2)(a)".

4.21 Clause 25

4.21.1 The GCB (Org 11) is of the opinion that should clauses 25(1)(c) and 26(1) of the Bill become law in their present form, serious inroads will be made into the fundamental principle of legal professional privilege upon which our judicial system is based. The GCB 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 disclosure to their legal representatives in the knowledge that what they say will remain confidential unless they consent to the disclosure thereof. (See also SAPS, Org 21 paragraph 3.16). The GCB further points out that in clause 25(1)(c)(i) reference is made "to appear in the High Court", whereas in clause 26(1), in the proviso, reference is made "to appear in court". According to the GCB it is not clear why there is a differentiation between these clauses.

4.21.2 The Judge President: Northern Cape (Org 13) proposes the following amendment to clause 25(1)(c)(i):

- On page 26, in line 6, to omit "of" where it appears in the first line and to substitute "with".
- He also points out that it is not clear why only proceedings in the High Court should be subject to the exception and suggests that proceedings in any court of law should be covered.

4.21.3 The Chief Magistrate: Pretoria (Org 10, paragraph 13) points out that section 201 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), recognises the principle of legal professional privilege and that in matters where that section is not applicable the common law rule will apply. It is therefore recommended that clause 25(1) be amended as follows:

(a) On page 24, in line 39, after "25.(1)" to insert:
"Subject to any statutory provision or the common law pertaining to professional privilege".

(b) On page 26, from line 1, to omit paragraph (c).

4.22 Clause 26
4.22.1 As indicated in paragraph 4.21.1 above the GCB (Org 11, paragraph 3.5) also opposes the provisions of clause 26(1). In this regard the GCB comments as follows:
"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.".

4.22.2 The Banking Council of South Africa (Org 14) proposes the following amendments:

(a) On page 26, in line 46, after "them" to insert "in writing".

(b) On page 28, in line 21, after the first "the" to insert "written".

4.23 Clause 28

4.23.1 The GCB (Org 11) poses the question what the legal position is if the deceased person did not have a legal representative, and if he had, what must the representative do with such notice? The GCB recommends that such notice be given to the executor of the deceased's estate and or the Master of the High Court which deals with the estate of the deceased person. (See also SAPS, Org 21, paragraph 3.17).

4.23.2 The Banking Council of South Africa (Org 14) proposes the following amendment to clause 28:
On page 28, in line 48, after "information" to insert the following:
"notwithstanding the provisions of section 4 of the Income Tax Act and with regard to any other secrecy provision in similar fiscal legislation.".

4.23.3 The Attorney-General: Free State (Org 15, paragraph 4.5) points out that the clause places no obligation on the Commissioner "to reciprocate with such information as he may have in assisting the investigation.".

4.24 Clause 31
4.24.1 The Judge President: Northern Cape (Org 13) proposes the following amendment to clause 31(c):
On page 30, in line 26, to omit "action" and to substitution "application".

4.24.2 The South African Police Service (Org 21, paragraph 3.18) is of the view that the words "any category" in clause 13(1)(b)(ii) might be discriminatory.

4.25 Clause 32
The Chief Justice of South Africa (Org 23) points out that clause 32(1)(a) only refers to sections 7, 17 and 20 although there are also other hearings in the Bill. He recommends that all hearings should be public.

4.26 Clause 34
The Judge President: Northern Cape (Org 13) indicates that it is not clear who the "claimant" is referred to in clause 34(2)(a). "Is it the person claiming the attachment or is it a person laying claim to the property in question?"

4.27 Clause 36
4.27.1 (a) The South African Police Service (Org 21, paragraph 3.19), points out that there are no mechanisms in the Bill, which provide for money to be deposited into the Fund. Clause 36 merely provides that the board, to be appointed by the Minister of Justice, will manage the moneys paid into the Fund, all such moneys are paid into the Central Treasury in accordance with existing legislation.".

(b) The SAPS also holds the view that the sole purpose of the Fund should be to benefit the law enforcement agencies and the victims of organised crime. According to the SAPS the current wording of clause 36 does not clearly state that they are the sole contenders for the moneys paid into the Fund.

(c) SAPS also suggests that the Bill should provide in clear terms that the moneys paid into the Fund be subject to the scrutiny of the Auditor-General.

COMMENT
See Clause 40(6).

4.28 Clauses 37 and 38
4.28.1 The Judge President: Northern Cape (Org 22) proposes the following amendment to clause 38(2) (previously 37(2)):
On page 34, in line 46, to omit "diverted" and to substitute "divested".

4.28.2 The Chamber of Mines of South Africa (Org 22) proposes the following amendment to clause 37(c):
On page 34, in line 21, to omit "the financial position of the Fund and".

4.28.3 The Chamber of Mines of South Africa (Org 22) recommends that the Fund only be utilized by law enforcement agencies in the fight against crime, and therefore proposes the following amendment:

On page 34, from line 22, to omit paragraphs (c) and (d).

4.29 Clause 42 (previously clause 41)
4.29.1 The South African Police Service (Org 21, paragraph 3.20) recommends that the term "intentionally" should be used throughout the Act where dolus is required.

4.29.2 The Attorney-General: Eastern cape (Org 3) is of the opinion that clause 42(3) is confusing. He recommends that it should be made clearer that the requirement that there be more than mere speech does not exclude liability of one who incites, instigates, commands, etc, others to do acts which are subsequently carried out. Otherwise there will be the anomaly that the lower rank gang members who do acts can be convicted, whilst those who command such acts escape liability.

4.29.3 The Chief Justice of South Africa (Org 23, paragraph 4) recommends the following amendment to clause 42(3):

On page 38, in line 6, to omit "eminently" and to substitute "the occurrence of physical harm was a strong likelihood".

4.30 Clause 43 (Ex clause 42)

4.30.1 The Chief Magistrate: Pretoria (Org 10) proposes the following amendment to clause 43(1):

(a) On page 38, in line 9, to omit "42(a) or (b)" and to substitute "42(1)(a) or (b)".

(b) On page 38, in line 11, to omit "42(c), (d) or (e)" and to substitute "42(1)(c), (d) or (e)".

4.30.2 The GCB (Org 11) argues that the fact that an accused was a member of a gang at the time of the commission of the offence can only be an aggravating fact if there is some nexus between the fact and the commission of the offence.

4.30.3 The Chief Magistrate: Pretoria (Org 10) is of the opinion that the penalties in clause 43(2) should be increased to five years in respect of each of the offences created by clause 42(1).

4.31 Clause 46

- The South African Police Service (Org 21, paragraph 3.21) proposes the following amendment to clause 45(1)(b):

On page 38 from line 35, to omit paragraph (b) and to substitute:
"(b) as to any matter which is necessary or expedient to be prescribed in order that the purpose of this Act may be achieved.".

4.32 Schedule 1

4.32.1 The South African Police Service (Org 21, paragraph 3.22) is of the opinion that offences relating to the dealing in or smuggling of ammunition, firearms, explosives or armament should be expanded to include "trafficking (illicit trade) and possession of such goods".

4.33 Schedule 2

4.33.1 The State Attorney: Johannesburg argues that the offence "sodomy" should not be included in Schedule 2. (This offences has already been omitted from the Bill.)

4.34 Schedule 3

4.34.1 The South African Police Service (Org 21, paragraph 3.23) proposes that item 5 be amended as follows:
On page 46, in the first line of item 5, to omit "subsection (2)" and to substitute "subsections (2), (3) and (4)".

4.35 Schedule 4

4.35.1 The Banking Council of South Africa (Org 14) proposes the following amendments to item 13 of Schedule 4:

(a) On page 58, from the third line of item 13, to omit "who carries on a business or is in charge of a business undertaking".

(b) On page 60, after subclause (1C) in item 13(b) to add the following subsection:

"(1D) A reasonable charge may be made by the reporting institution or person to recoup the costs associated with providing the information and copies required under this section.".

4.35.2 The Banking Council of South Africa (Org 14, paragraph 2.17) also proposes the following amendment to item 15 of Schedule 4:
On page 62, in the eight line of item 15, after "information" to insert "within the normal reasonable course of his or her business transactions".

5.1 Oral submissions
During public hearings the following persons, institutions or organisations made oral submissions to the Portfolio Committee on Justice:

(a) The South African Institute of Race Relations (Org 30)

(b) The South African Police Service (Org 21)

(c) The Human Rights Committee of South Africa (Org 32)

(d) The National Association of Democratic Lawyers (NADEL, Org 35)

(e) The Western Cape Anti Crime Forum (Org 34)

(f) The Banking Council of South Africa (Org 14)

5.2 The recommendations and proposals of the above-mentioned commentators have been included in the previous paragraphs where applicable. The oral submissions can be summarised as follows:

5.2.1 The South African Institute of Race Relations (Org 30)

(a) The Bill has good and acceptable intentions, but in its present form raises a number of concerns.

(b) Components of the criminal justice system which deal with organised crime need to be properly funded and its personnel adequately trained before the Bill is promulgated.

(c) It is submitted that, given the broad definition given to a "pattern of illegal conduct", and an "enterprise", the term "organised crime" be defined so as to exclude organisations and enterprises which are not involved in organised crime.

(d) The definition of "illegal conduct" is not satisfactorily.

(e) Clause 2(1)(a) is too broad and open to misuse. The following amendments are proposed in this regard:

(i) For a person to be convicted in terms of clause 2(1) a court must be satisfied that an organised crime has been committed.

(ii) Some of the offences listed in Schedule 1 could be more narrowly defined. For example, theft of items to the value of more than a certain amount, fraud involving moneys exceeding a certain amount, etc.

(f) The following amendments are proposed in respect of restraining orders:

(i) An authorised police officer should have a specified minimum rank for the purpose of the restraining orders provision of the Bill.

(ii) An "unlawful activity" should mean a criminal offence or offences.

(iii) The expression "suspected commission of an offence" should be deleted, because it is to broad and its potential application and meaning are vague.

(g) Regarding the civil asset procedure the opinion is held that the possibility of abuse is great, and therefore safeguards should be considered to minimise the possibility of an injustice occurring. The safeguards in the Bill are not sufficient. It is suggested that everybody who has had his or her property forfeited by the state should be assisted by the state to make an application to the High Court to have his or her property excluded from the forfeiture order. It is therefore recommended that clause 13(2)(a) be deleted.

(h) It is recommended that the listed factors in respect of the definition of "criminal gang member" be omitted. The opinion is held that judicial officers, prosecutors and accused persons are in a position to call any witnesses and present evidence they deem necessary to show, for example, that a person is or is not a member of a criminal gang.
It is submitted that structures, investigation teams, training courses and the requisite personnel are adequately developed and trained prior to the promulgation of the Bill.

(j) Lastly the opinion is held that the Bill is based on insufficient analysis and research.

5.2.2 The South African Police Service (Org 21)

(a) The SAPS supports the Bill and the fundamental principles embodied in it, with reference to developments in the international arena, in the field of combatting crime.

(b) The United Nations Commission on Crime Prevention and Criminal Justice initiated the drafting of a comprehensive Convention against transnational organised crime. If one studies the contents of the draft Convention, it is clear that the Bill is the type of legislation which will be required by the Convention, once adopted, in order for member states to comply with the Convention.

(c) The Bill already gives effect to many of the requirements of the Convention which will become the guiding light in future, regarding the combatting of organised crime.

(d) In the written submission of the SAPS (Org 21) certain amendments to the Bill are proposed. Inter alia it is proposed that a definition of "organised crime" be included in the Bill.

(e) Certain constitutional problems are also pointed out. Each of those proposals are dealt when dealing with the different clauses above.

(f) The SAPS is in the process of drafting a thorough police plan to implement the Bill.

5.2.3 Human Rights Committee of South Africa (Org 32)

(a) The HRC is not convinced that the extraordinary measures proposed in the Bill can be justified.

(b) The HRC believes that thorough debate on the Bill is needed. Therefore it is recommended that the Portfolio Committee allows far more time to properly consider some of the objections to the Bill.

(c) The HRC believes that Chapter 5 and the definitions in Chapter 1 are to vague and wide reading. These provisions are loosely defined and are thus open to massive abuse. The Bill can criminalise an entire segment of society without any criminal actions being recorded apart from in terms of this Bill.

(d) The Bill should rather target organised crime as part of a holistic plan. Forfeiture laws passed in isolation have not achieved the reduction of organised crime elsewhere. Legislation which complements a holistic plan of action would also serve the country better than a "quick-fix" plan.

(e) The introduction of the Bill was necessitated by the State's inability to prosecute gangsters and people involved in organised crime. Unless the criminal justice system is given the requisite back up including modern database and information systems, and adequate training, resources and remuneration for police, prisons and justice officials, attempts to alter the status quo laws alone, will not succeed.

5.2.4 NADEL (Org 35)

(a) Not enough time has been granted for civil society organisations and communities to respond to the Bill.

(b) Nadel is concerned about the timing of the Bill. The Bill should not be used for election purposes.

(c) Organised crime and gang activities are serious social problems. An integrated and multi-pronged approach is required.

(d) The Bill's "catch-all definitions" and the wide discretion granted to the police, represents an attack on black working class communities, especially the youth.

(e) The Bill is unconstitutional because there is a serious breach of due process. The Bill also breaches a number of fundamental freedoms in the Bill of Rights.

(f) The Bill departs from the National Crime Prevention Strategy.

(g) If the Bill becomes law, it is conceivable that it could be used by sections of the police either to incriminate, harass or intimidate people for reasons of narrow self-interest or against legitimate opponents of the government.

(h) There is a failure to recognise the socio-economic realities that the youth face.

(i) The Bill does not provide a definition of organised crime. "It casts a wide net, with small holes.".

(j) The Criminal Assets Recovery Fund might be a good idea, but if approved in its present form might create further problems.

(k) Nadel requests that the Bill be withdrawn.

5.2.5 The Western Cape Anti-Crime Forum (Org 34)

(a) There was not sufficient time to consult the various community organisations. The Forum request permission to hold further discussions with community organisations and to submit further written submissions.

(b) The Forum recognises the importance of the Bill, but raises the following concerns:

(i) There is potential for the law to be exploited by the accused and their legal representatives. There is also potential for the state to abuse the law through harassment and unjustified arrests.

(ii) Existing laws for example, the Intimidation Act of 1982 can be used effectively.

(iii) Currently there is very little protection for witnesses, in particular from the moment they come forward with evidence. It is proposed that the Bill should contain a clause granting immediate protection to any witness who came forward with permissible information and evidence which would lead to a conviction in court.

(iv) The rights of the victims should outweigh the rights of the perpetrators.

(v) Conviction of known drug- and ganglords are scarce.

5.2.6 The Banking Council of South Africa (Org 14)

(a) The Council welcomes the Bill as another in the process of fighting crime, and in particular of reinforcing the maxim that "crime does not pay".

(b) The amendments to the Proceeds of Crime Act, 1996, are also welcomed.

(c) The Council refers to various specific provisions in the Bill and proposes certain amendments. All these proposals are mentioned in paragraphs 2 to 4 above.