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DRAFT BILL

REPUBLIC OF SOUTH AFRICA

_________

CRIMINAL PROCEDURE

AMENDMENT BILL

_________

(As introduced)

___________

(MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT)

[B –2000]

___________________________________________________________________

REPUBLIEK VAN SUID-AFRIKA

___________

STRAFPROSESWYSIGINGS-

WETSONTWERP

__________

(Soos ingedien)

__________

(MINISTER VAN JUSTISIE EN STAATKUNDIGE ONTWIKKELING)

[W –2000]

GENERAL EXPLANATORY NOTE:

[ ] Words in bold type in square brackets indicate omissions from existing enactments.

_____ Words underlined with a solid line indicate insertions in existing enact-

ments.

BILL

To amend the Criminal Procedure Act, 1977, so as to amend the provisions related to the payment of admissions of guilt, to provide for out of court settlements; and to provide for matters connected therewith.

__________

BE IT ENACTED by the Parliament of the Republic of South Africa, as follows:–

The Criminal Procedure Act, 51 of 1977, hereinafter referred to as the principal Act, is hereby amended by -

(1) The amendment of section 6 of the principal Act, by the substitution for paragraph (c) of the following paragraph:

6 Power to withdraw charge, [or] stop or conditionally discontinue prosecution

“(c) if it is determined that the withdrawal or stopping of prosecution, as provided for in subsection (a) or (b) would be inappropriate, nevertheless conditionally discontinue prosecution of the accused, by entering into an out-of-court settlement, as provided for in section 104A of the Act.”

(2) The substitution for section 57 of the following section:

57 Payment of amount of money without appearance in court

(1) Where –

• a summons is issued against an accused under section 54 (in this section referred to as the summons) and the public prosecutor or the clerk of the court concerned on reasonable grounds believes that a magistrate's court, on convicting the accused of the offence in question, will not impose a fine exceeding the amount determined by the Minister from time to time by notice in the Gazette, and such public prosecutor or clerk of the court endorses the summons to the effect that the accused may [admit his guilt in respect of the offence in question and that he may] pay [a fine] an amount stipulated on the summons in respect of such offence without appearing in court; or

• a written notice under section 56 (in this section referred to as the written notice) is handed to the accused and the endorsement in terms of paragraph (c) of subsection (1) of that section purports to have been made by a peace officer,

the accused may, without appearing in court,[ admit his guilt in respect of the offence in question by paying the fine] pay the amount stipulated [(in this section referred to as the admission of guilt fine)] either to the clerk of the magistrate's court which has jurisdiction or at any police station within the area of jurisdiction of that court or, if the summons or written notice in question is endorsed to the effect that the [fine] amount may be paid at a specified local authority, at such local authority.

• (a) The summons or the written notice may stipulate that the [admission of guilt fine] amount shall be paid before a date specified in the summons or written notice, as the case may be.

• [An admission of guilt fine] Payment of the amount stipulated may be accepted by the clerk of the court concerned notwithstanding that the date referred to in paragraph (a) or the date on which the accused should have appeared in court has expired.

• (a) (i) Subject to the provisions of subparagraphs (ii) and (iii), an accused who intends to pay an [admission of guilt fine amount in terms of subsection (1), shall surrender the summons or the written notice, as the case may be, at the time of the payment [of the fine].

(ii) If the summons or written notice, as the case may be, is lost or is not available and the copy thereof known as the control document –

(aa) is not available at the place of payment referred to in subsection (1), the accused shall surrender a copy of the summons or written notice, as the case may be, at the time of the payment [of the fine]; or

(bb) is available at the place of payment referred to in subsection (1), the [admission of guilt fine] amount may be accepted without the surrender of a copy of the summons or written notice, as the case may be.

(iii) If an accused in respect of whom a warrant has been endorsed in terms of section 55(2A) intends to pay the relevant [admission of guilt fine] amount, the clerk of the court may, after he or she has satisfied himself or herself that the warrant is so endorsed, accept the [admission of guilt fine] amount without the surrender of the summons, written notice or copy thereof, as the case may be.

(b) A copy referred to in paragraph (a)(ii) may be obtained by the accused at the magistrate's court, police station or local authority where the copy of the summons or written notice in question known as the control document is filed.

• Notwithstanding the provisions of subsection (1), an accused referred to in paragraph (a)(iii) may pay the [admission of guilt fine] amount in question to the clerk of the court where he appears in consequence of such warrant, and if the said clerk of the court is not the clerk of the magistrate's court referred to in subsection (1), he shall transfer such [admission of guilt fine] amount to the latter clerk of the magistrate's court.

• No provision of this section shall be construed as preventing a public prosecutor attached to the court concerned from reducing [an admission of guilt fine] the stipulated amount on good cause shown.

• (a) [An admission of guilt fine] The amount stipulated in respect of a summons or a written notice shall be in accordance with a determination which the magistrate of the district or area in question may from time to time make in respect of any offence or, if the magistrate has not made such a determination, in accordance with an amount determined in respect of any particular summons or any particular written notice by either a public prosecutor attached to the court of such magistrate or a police official of or above the rank of non-commissioned officer attached to a police station within the magisterial district or area in question or, in the absence of such a police official at any such police station, by the senior police official then in charge at such police station.

• [An admission of guilt fine] The amount determined under paragraph (a) shall not exceed the maximum of the fine prescribed in respect of the offence in question or the amount determined by the Minister from time to time by notice in the Gazette, whichever is the lesser.

• [An admission of guilt fine] The amount paid at a police station or a local authority in terms of subsection (1) and the summons or, as the case may be, the written notice surrendered under subsection (3), shall, as soon as is expedient, be forwarded to the clerk of the magistrate's court which has jurisdiction, and such clerk of the court shall thereafter, as soon as is expedient, enter the essential particulars of such summons or, as the case may be, such written notice and of any summons or written notice surrendered to the clerk of the court under subsection (3), in the [criminal record book for admissions of guilt] relevant register, whereupon the [accused concerned] the matter shall, subject to the provisions of subsection (7), be [deemed to have been convicted and sentenced by the court in respect of the offence in question] considered as finalised and the amount so paid shall be dealt with as if it were a fine.

• [The judicial officer presiding at] An officer appointed or designated by the magistrate of the court in question shall examine the documents and if it appears [to him that a conviction or sentence under subsection (6) is not in accordance with justice or] that any such [sentence] amount, except as provided in subsection (4), is not in accordance with a determination made by the magistrate under subsection (5) or, where the determination under that subsection has not been made by the magistrate, that the [sentence] amount is not adequate, such [judicial] officer may [set aside the conviction and sentence and direct that the accused be prosecuted in the ordinary course] return the amount paid, whereupon the accused may be summoned to answer such charge as the public prosecutor may deem fit to prefer: Provided that where the [admission of guilt fine] amount which has been paid exceeds the amount determined by the magistrate under subsection (5), the said [judicial] officer may, in lieu of [setting aside the conviction and sentence] returning the amount in question, direct that the amount by which the said [admission of guilt fine] amount exceeds the said determination be refunded to the accused concerned.”

(3) The deletion of section 57A of the principal Act.

(4) The insertion of the following section in the principal Act:

“104A Out-of-court settlements

(1) If the prosecutor is satisfied, at any time before any substantial evidence has been adduced against the accused and considering all the facts at his or her disposal that -

(a) it is in the public interest to do so; and

(b) a court would, in the case of a conviction, impose a sentence other than imprisonment, or imprisonment for a period not exceeding one year,

he or she may enter into an out-of-court settlement with the accused, in terms of which the prosecution undertakes to discontinue prosecution on condition that the accused complies with the conditions as agreed upon in the settlement.

(2) In considering whether it will be in the public interest to enter into an out-of-court settlement, the prosecution shall have regard to –

(a) whether the accused poses a significant threat to the community and is likely to benefit from the settlement;

(b) the effect of a conviction on the accused;

(c) whether, in the case of an accused with two or more previous convictions for the same or similar offences or an accused who have entered into a settlement as provided for in this section on two or more occasions for the same or similar offences, there are substantial and compelling circumstances meriting the settlement; and

(d) the interests of the victim of the crime.

• A settlement contemplated in subsection (1) can only be entered into –

(a) once a charge sheet, setting out the offence or offences for which the accused is being charged, has been served on the accused;

(b) if the prosecution is satisfied that there is sufficient evidence to warrant the prosecution of the accused; and

(c) through the accused's legal representative, if the accused is legally represented.

(4) (a) The prosecution must, in exercising its discretion in terms of this provision, if circumstances permit, obtain the views of the investigating officer and the victim of the offence, and must consider such views, before entering into a settlement with the accused.

(b) If the victim is not available to make representations, the prosecution must notify him or her of the intention to enter into an out-of-court settlement and such notification must give the victim a reasonable time to respond with representations, whether orally or in writing, whether in person or otherwise.

(c) For the purposes of this subsection, a “victim” is any person who, as a result of the accused's offence, suffered damage to or loss of property, or injury, whether physical, psychological or otherwise, or loss of income or support.

(5) An out-of-court settlement is, for a period as agreed upon between the parties, but not more than two years, subject to one or more of the following conditions, as expressly stipulated in the settlement:

(a) Compensation;

(b) the rendering to the person aggrieved of some specific benefit or service in lieu of compensation for damage or pecuniary loss;

(c) the performance without remuneration and outside the prison of some service for the benefit of the community under the supervision or control of an organization or institution which, or person who, in the opinion of the court, promotes the interests of the community (in this section referred to as community service);

(d) payment of an amount of money of not more than the amount prescribed from time to time by the Minister in the Gazette, to the State or a state agency as directed by the prosecution;

(e) submission to instruction or treatment;

(f) submission to supervision or control (including control over the earnings or other income of the person concerned) of a probation officer as defined in the Probation Services Act, 1991 (Act No 116 of 1991);

(g) the compulsory attendance or residence at some specified centre for a specified purpose;

(h) referral to community dispute resolution structures that have been put into place in terms of an Act of Parliament.

Notwithstanding the above, a condition in terms of paragraph (c) shall be limited to a maximum period of one year.

(6) (a) If the conditions to a settlement under this section requires the accused to perform community service, to undergo instruction or treatment or to attend or reside at a specified centre for a specified purpose, the prosecutor shall cause a notice to be served on the accused, directing him or her to report on a date and time specified in the notice or (if prevented from doing so by circumstances beyond his or her control) as soon as practicable thereafter, to the person specified in that notice, whether within or outside the area of jurisdiction of the court, in order to perform that community service, to undergo that instruction or treatment or to attend that centre or reside thereat, as the case may be.

(b) A copy of the said notice shall serve as authority to the person mentioned therein to have that community service performed by the person concerned or to provide that instruction or treatment to the person concerned or to allow the person concerned to attend that centre or to reside thereat.

(c) Any person who, when he or she reports to perform community service, to undergo instruction or treatment or to attend or reside at a specified centre for a specified purpose, is under the influence of intoxicating liquor or drugs or the like shall be guilty of an offence and liable on conviction to a fine or imprisonment for a period not exceeding three months.

(7) The terms of the out-of-court settlement –

(a) must be in writing, and must be signed by the prosecutor and the accused;

(b) has to be approved by the Director of Public Prosecutions having jurisdiction or an official authorised thereto by him or her;

(c) may be amended on good cause shown, with consent from both parties: Provided that any amendment must also comply with paragraph (b).

(8) If the accused fails to comply with any of the conditions of the out-of-court settlement and the prosecutor is satisfied that such failure was beyond the accused's control, or for any other good and sufficient reason, the prosecutor may, having due regard to the extent to which the conditions of the prior settlement has been complied with, enter into a further out-of-court settlement.

(9) If the accused fails to comply with any of the conditions of the out-of-court settlement under circumstances other than those referred to in subsection (8), the criminal proceedings against the accused on that charge can be resumed from where they were when the out-of-court settlement was entered into: Provided that sections 118 and 275 of the Act applies with the necessary changes: Provided further that, should the accused be convicted, the court imposing sentence shall take into consideration the extent to which the conditions of the out-of-court settlement have been complied with.

(10) Once the accused has complied with the conditions of the out-of-court settlement, the charge is considered finalised and no prosecution resulting from the same offence may be instituted.

(11) (a) The provisions of section 106(4) shall not apply where the accused has already pleaded to a charge, except if the trial is resumed as provided for in subsection (9).

(b) A private prosecution as provided for in section 7 of the Act shall not be allowed during the course of an out-of-court settlement, or after its successful implementation.”

(4) The amendment of section 297A of the principal Act by the substitution for subsections (1) and (5) of the following subsections:

“297A Liability for patrimonial loss arising from performance of community service

• If patrimonial loss may be recovered from an accused on the ground of a delict committed by him or her in the performance of community service in terms of sections 104A or 297, that loss may, subject to subsection (3), be recovered from the State.

(5) If any person as a result of the performance of community service in terms of sections 104A or 297 has suffered patrimonial loss which cannot be recovered from the State in terms of subsection (1), the [Director-General: Justice] Minister may, with the concurrence of the Treasury, as an act of grace pay such amount as he or she may deem reasonable to that person.”

(5) The amendment of section 341 of the principal Act by:

(i) the substitution for paragraph (b) of subsection (2) of the following paragraph:

“(b) Any sum of money paid to a local authority as provided in paragraph (a) shall, for administrative purposes only, be deemed to be a fine imposed in respect of the offence in question.”

(ii) the substitution for subsection (3) of the following subsection:

• “Any money paid to a magistrate in terms of subsection (1) shall, for administrative purposes only, be dealt with as if it had been paid as a fine for the offence in question.”

(iii) the substitution for subsection (5) of the following subsection:

• “The amount to be specified in any notification issued under this section as the amount of the fine which a court would probably impose in respect of any offence, shall be determined from time to time for any particular area by the magistrate of the district or area in which such area is situated, and may differ from the [admission of guilt fine] amount determined under section 57(5)(a) for the offence in question.”