South African Human Rights Commission
Report on Submission to Portfolio Committee for Justice and Constitutional Development on the Criminal Procedure Second Amendment Bill (Plea Bargaining)
The South African Human Rights Commission (SAHRC) was invited by the Portfolio Committee to come and present its submission on the Criminal Procedure Second Amendment Bill (Plea Bargaining) on Friday, 12 October 2001. Commissioner Jody Kollapen accompanied by Judith Cohen, Parliamentary Officer, appeared before the Committee.
The Independent Complaints Directorate had presented the submission the previous Friday, 5 October 2001 and the National Prosecuting Authority (NPA), represented by Mr. Jan DíOliviera, appeared before the Committee earlier in the afternoon before the SAHRC. The Committee had received a further submissions from: the Department of Justice, Kimberley; Regional Court President, Johannesburg; Judge Presidentís Chambers, Northern Cape; Judge Presidentís Chambers, Cape Town; and, Judge Presidentís Chambers, Bloemfontein.
Commissioner Jody Kollapen stated that the SAHRC supports the Bill. However the SAHRC has some concerns over how victims are dealt with in the bill. It was from this perspective that we were making submissions on the Bill. It is interesting to note, that save for the NPA all the other submissions commented that victims had not been adequately dealt with in the Bill.
Commissioner Kollapen, placed the Bill within the context of developments in South Africa that are moving towards greater recognition for victims within the criminal justice system. The Draft Victims Charter of August 2001 and the SALC report on Sentencing Frameworks amongst others were mentioned. Within the context of these developments it was clear that the legislative drafters had missed an opportunity for the recognition of victims rights.
The current form of the Bill does not allow for the participation of victims in the criminal justice process. Wording within the Bill such as placing a duty on the Prosecutor to consult with the victim only where circumstances permit such consultation is vague and is not strong enough to ensure victim participation. This wording should be altered and the Prosecutor should be compelled to consult:-
"Ö where it is reasonable to do soÖ.. .with due regards being had to the nature and seriousness of the offence."
Commissioner Kollapen stressed that it may be difficult for consultation to be peremptory in all circumstances. However, a reasonable approach was being motivated for by the SAHRC. This approach would send a strong message to victims that there rights are being recognized.
Another option put forward by the SAHRC to the Committee in line with developments in South Africa for victim impact statements to be included in the criminal justice system was for a duty to be placed on the presiding officer to inquire if the Prosecution had consulted with the victim prior to concluding the sentence agreement.
It was also recommended that to ensure the smoother administration of justice it might be wise to legislate that the accused must sign the sentence agreement. Also, that the Committee should consider the accusedís previous criminal convictions being attached as an annexure to the sentence agreement.
Jonny De Lange of the Committee indicated that the Committee was very keen to pass the piece of legislation this session. They realized that the legislation might not be perfect. He thanked the SAHRC for making themselves available to come and present their submission and requested the legislative drafter to redraft the sections of the Bill, which were problematic as a matter of priority.
Judith R Cohen
15 October 2001