BRIEFING:CRIMINAL MATTERS AMENDMENT BILL, 2015 : SELECT - PowerPoint Presentation

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BRIEFING:CRIMINAL MATTERS AMENDMENT BILL, 2015 : SELECT

COMMITTEE ON SECURITY AND JUSTICE: 28 OCTOBER 2015Slide2

STATISTICS

SACCI Copper Theft Barometer indicating metal theft from Eskom, Telkom and Transnet:

Cost of replacing stolen metal: 7,08% increase

April 2015: R13,6 million

March 2015: R12,6 million

(April 2014: R12,5 million)

Copper Theft Volume Indicator: Increase

April 2015: 179 metric tons

March 2015: 173 metric tons

April 2014: 176 metric tonsSlide3

STATISTICS CONTINUED

International Average Monthly Copper Spot Price:April 2015: $6 432March 2015: $6 026

May 2014: $6 885Relationship between the level of theft and US$ priceSA exports of waste copper products:March 2015: $7,2 millionJanuary 2015: $3,4 millionAugust 2014: $7,0 millionSlide4

STATISTICS CONTINUED

Upward movement in the level of exports since Jan 2015SA has only 2% of the global copper reservesSA now the largest exporter of copper to China and

IndiaLoss to the economy: R5 – R7 billion per yearStolen cables must be replaced before essential maintenance Slide5

BACKGROUND

The level of crime in South Africa in respect of essential infrastructure, which is defined in the Bill, is unacceptably high. Offences committed in respect of essential infrastructure, involve metal

(both ferrous and non-ferrous metal).Essential infrastructure is used to provide or distribute the “means”, such as electricity, water sanitation and transport, to the broad public, including hospitals, schools, businesses and individuals, which is needed in order to operate on a daily basis. Slide6

BACKGROUND CONTINUED

This type of criminal activity poses a risk to, among others, public safety.It has a very negative impact on South Africa’s economy, society and infrastructure.

These offences are becoming increasingly more organised.They are often committed by armed and dangerous criminal groups. Slide7

BACKGROUND CONTINUED

We need protect our essential infrastructure, in which public investment is placed, and to ensure that the country meets its economic growth targets and increases employment. The Bill provides for stricter provisions for the granting of bail and the sentencing of offenders who

steal or damage or tamper with essential infrastructure which often results in the interference with the functioning of basic services.The Bill is intended to build safer communities by addressing the threat and damage caused to essential infrastructure through metal theft.Slide8

SUMMARY OF BILL

The aim of the Bill is to change the law relating to –

the granting of bail; andthe imposition of minimum sentences,in respect of persons accused of essential infrastructure-relatedoffences. A new offence is also created, and which is included in the Prevention of Organised Crime Act, 1998.Slide9

SUMMARY OF BILL CONTINUED

The laws to be changed are the following:The Criminal Procedure Act, 1977 (the CPA), which deals with bail; and

the Criminal Law Amendment Act, 1997 (the Criminal Law Amendment Act), which deals with minimum sentences.The Prevention of Organised Crime Act, 1998.The new offence to be created relates to the tampering with or the damaging or destroying of essential infrastructure, which is defined in clause 1 of the Bill. Slide10

CLAUSE 1: DEFINITIONS

Clause 1 contains three definitions: “basic services”, “

essential infrastructure” and “tamper”.The purpose of the first two definitions is to make it clear that the provisions of the Bill are applicable to privately and publicly owned infrastructure, providing or distributing basic services “means”, such as energy, transport, communications, water and sanitation, to the public. The definition of “tamper” clarifies its meaning and distinguishes it from damaging property. Slide11

CLAUSE 2: BAIL

Clause

2 seeks to amend sections 59 and 59A of the CPA by removing the discretion of police officials and prosecutors to grant bail to persons charged with any essential infrastructure-related offence

.The amendment will ensure that only the courts may deal with bail applications for these offences in terms of section 60 of the CPA. This aims to send out a message of the seriousness of the crimes in question.Slide12

CLAUSE 2 CONTINUED

Persons out on bail often attempt to delay the criminal proceedings for as long as possible, resulting in the loss of evidence and the disappearance of witnesses. Moreover, if accused persons are out on bail, police investigations become more difficult.Slide13

CLAUSE 3

: OFFENCE RELATING TO ESSENTIAL INFRASTRUCTURE

Clause 3 creates a new offence. I

t criminalises the unlawful and intentional tampering with or damaging or destroying of essential infrastructure.It provides for a severe penalty, namely imprisonment not exceeding 30 years.The seriousness of this offence is emphasised by prescribing a harsh sentence.Slide14

CLAUSE 3 CONTINUED

The aim of the new offence is to ensure that legislation is in place to regulate this aspect adequately instead of having to rely on the common law offence of malicious damage to property, which is often regarded as a minor offence.

The new offence also criminalises tampering with essential infrastructure which may in certain circumstances not be covered under the concept of “damaging”. Slide15

CLAUSE 4

: AMENDMENT OF SCHEDULE 5 TO THE CPA

The CPA, which regulates the granting of bail, determines who may grant bail to accused persons in custody, that is the police, prosecutors and the court.

As a result of this Bill only a court will be able to grant bail to persons in custody for essential infrastructure-related offences.Slide16

CLAUSE 4 CONTINUED

The CPA also provides that if the court is to grant bail, two possibilities exist:

The accused is entitled to be released on bail and the State must proof that the interests of justice do not permit his or her release on bail. The accused must be detained in custody unless he or she adduces evidence which satisfies the court that the interests of justice permit his or her release on bail.The second possibility is only applicable in respect of offences listed in Schedule 5 to the CPA. Slide17

CLAUSE 4 CONTINUED

Hence it can be said that Schedule 5 to

the CPA contains a list of offences in respect of which the reverse onus relating to bail applies which means that the burden of proof is placed on the accused and not the State.Clause 4 of the Bill aims to ensure that an accused who is in custody in respect of essential infrastructure-related offences may only be released on bail if he or she adduces evidence which satisfies the court that the interests of justice permit his or her release. Slide18

CLAUSE 4 CONTINUED

The following essential infrastructure-related offences are to be inserted in Schedule 5 to the CPA so that the reverse onus in respect of bail applies

to an accused who is in custody in respect of these offences: 1. Offences under the Prevention of Organised Crime Act, 1998 (POCA) which relate to racketeering activities (section 2), proceeds of unlawful activities (sections 4, 5 and 6), including money laundering, and criminal gang activities (section 9).Slide19

CLAUSE 4

CONTINUEDA person commits an offence of racketeering if he or she receives, retains, uses or invests any property derived from a pattern of racketeering activity and knows

or ought reasonably to have known that such property is so derived. Pattern of racketeering means the planned, ongoing, continuous or repeated participation or involvement in at least two offences referred to in Schedule 1 to the POCA, one committed after the commencement of this Act and the other within 10 years after the commission of such prior offence.Slide20

CLAUSE 4 CONTINUED

As indicated, offences relating to the proceeds of unlawful activities are also to be included in Schedule 5 to the CPA.These offences are committed if, for instance, a person knows that property forms part of the proceeds of unlawful activities and enters into any agreement with anyone in connection with that property which has the effect of concealing the nature, source or movement of the said property.An unlawful activity is any conduct which constitutes a crime or which contravenes any

law.Slide21

CLAUSE 4 CONTINUED

The offences relating to criminal gang activities which are to be included in Schedule 5 to the CPA refer to activities committed by any formal or informal ongoing organisation, association or group of three or more persons which has as one of its activities the commission of one or more criminal offences and which has an identifiable name, sign and symbol.

POCA offences are therefore committed in relation to other offences, such as dealing in drugs, trafficking in persons and rhino-poaching. Slide22

CLAUSE 4 CONTINUED

2.The offences referred to in section 54(1) of the International Trade Administration Act, 2002 (Act 71 of 2002)(the ITA Act), which relate to the failure to comply with the following:A notice prescribing the goods that may not be imported or exported into or from the Republic;

a condition stated in an import or export control permit or rebate certificate;a directive given to the importer/exporter to provide information relating to the imports or exports of goods;Slide23

CLAUSE 4 CONTINUED

An interim or final order made in terms of the Act.These offences carry a fine not exceeding R500 000 or imprisonment not exceeding 10 years or both. 3. The offences referred to in section 32(1)(

a), (b), (c), (d), (k), in so far as they relate to section 21(1), (l),(m), or (o) of the Second-Hand goods Act, 2009. These offences are the following:The carrying on of a business as a scrap metal dealer without being registered;Slide24

CLAUSE 4 CONTINUED

failure to apply for registration for all premises from which the business will be carried out;furnishing of false information in support of an application;

failure to record the required particulars when acquiring or disposing of scrap metal; failure to report to the SAPS items suspected to be stolen or tampered with in order to conceal the identity of the item or to refrain from continuing with the transaction;Slide25

CLAUSE 4 CONTINUED

contravention of restrictions relating to the prohibition of the acquisition of goods unless the dealer is convinced that the seller is the owner or titleholder thereof; p

ossession of any apparatus that can be used for the recycling of any controlled metal (including copper and aluminium) without being registered or the acquisition or disposal or possession of any cable consisting of controlled metal of which the cover has been burnt without being able to provide a reasonable explanation for the burnt cover and failure to report the matter to the SAPS. Slide26

CLAUSE 4 CONTINUED

All these offences carry a maximum penalty of 10 years. The offences in items 2 and 3 are limited to offences involving essential infrastructure. The inclusion in Schedule 5 to the CPA of the offences in items 2 and 3 will ensure that the reverse onus relating to bail is also applicable to dealers in second-hand scrap metal and agents involved in exports.Slide27

CLAUSE 4 CONTINUED

4. Theft involving essential infrastructure, if it is alleged that the offence –

caused an interference with a basic service rendered to the public; orcaused damage to essential infrastructure; orwas committed by persons in positions of trust and for whom it may be easy to tamper with evidence, namely -a law enforcement officer ito section 58(1);a security officer;Slide28

CLAUSE 4 CONTINUED

an employee; a contract worker; or was committed by a group of persons acting with a common purpose.

Essential infrastructure-related offences committed by individuals, stealing small amounts of metal, for instance petty thieves or subsistence thieves are therefore also covered. These offences are not minor offences as they often have a significant negative social impact on society.  Slide29

CLAUSE 4 CONTINUED

Theft committed under the following circumstances, is already included in Schedule 5 to the CPA: If the amount involved is more than R500 000;

if the amount involved is more than R100 000 and if it is committed by a group of persons or syndicate acting in the execution or furtherance of a common purpose of conspiracy; andif the offence was committed by a law enforcement officer and the amount involved isSlide30

CLAUSE 4 CONTINUED

more than R10 000,00 or if he/she acted as a member of a group of persons or syndicate acting in the execution or furtherance of a common purpose of conspiracy. 5. Contraventions of –section 36 of the General Law Amendment Act, 1955,

which deals with the inability of a person to give an account of the possession of goods suspected of being stolen; andSlide31

CLAUSE 4 CONTINUED

section 37 of the General Law Amendment Act, 1955, which deals with the receipt of stolen property without reasonable cause,if it is alleged that essential infrastructure is involved.

This is intended to cover cases where perpetrators cannot be charged with theft because it is not known who has stolen the property, where the property in question was stolen from and who the owner thereof is. 6. The offence created in clause 3 of the Bill.Slide32

CLAUSE 5:

AMENDMENT OF SECTION 51 OF THE CRIMINAL LAW AMENDMENT ACT

Clause 5 seeks to amend section 51 of the Criminal Law Amendment

Act.Section 51 prescribes the minimum period of imprisonment that must be imposed by the courts for first, second and subsequent offenders convicted of the offences listed in Schedule 2 to that Act. Section 51 provides for different periods of imprisonment for offences listed in Parts I, II, III and IV of Schedule 2.Slide33

CLAUSE 5 CONTINUED

The periods of sentencing are as follows:Part I: Imprisonment for lifePart II: 15, 20 or 25 years’

imprisonmentPart III: 10, 15 or 20 years’ imprisonmentPart IV: 5, 7 or 10 years’ imprisonment.Clause 5 inserts a new Part V in Schedule 2 which makes provision for prescribed minimum sentences ranging from 3 to 7 years. The offences to be listed in Part V are discussed later.Slide34

CLAUSE 6

: AMENDMENT OF PART II OF SCHEDULE 2 TO THE CRIMINAL LAW AMENDMENT ACT

Ito section

51 a court may depart from the prescribed minimum sentences, if substantial and compelling circumstances exist which justify the imposition of a lesser sentence. Clause 6 inserts in Part II of Schedule 2 the following offences, which are very similar to the offences inserted in Schedule 5 to the CPA, so that the minimum sentencing regime of 15, 20 or 25 years, depending on the convicted person’s previous convictions, may be imposed for these offences:Slide35

CLAUSE 6 CONTINUED

The offences referred to in section 2, 4, 5 and 6 of the POCA relating to an offence involving essential infrastructure. Unlike with bail, the offences in section

9 of the POCA, dealing with criminal gang activities, are not included in Schedule 2 since the penalties prescribed for these offences only provide for maximum sentences of imprisonment ranging from 3 to 8 years.Slide36

CLAUSE 6

CONTINUED2. Theft, involving essential infrastructure –causing interference with a basic service; causing damage to essential infrastructure; or

committed by persons in positions of trust, namely-law enforcement officers;security officers;employees;contract workers; and committed by a group of persons (syndicates).Slide37

CLAUSE 6 CONTINUED

3. The offence created in clause 3.The high levels of essential infrastructure-related offences result in

the disruption of basic services, negatively affecting the well-being of the public, giving rise to service-related discontent within affected communities and resulting in losses to the economy. The proposed sentences signify the seriousness of the offences and the intent to safeguard the interests of society by signalling to the courts that the imposition of harsher sentences must be considered.Slide38

CLAUSE 7: AMENDMENT OF PART IV OF SCHEDULE 2

To

ensure that minimum sentences ranging from 5 to 10 years’ imprisonment

can be imposed on dealers in second-hand scrap metal and agents, where essential infrastructure-related offences are involved, the offences referred to in –section 54(1) of the ITA Act; andsection 32(1)(a), (b), (c), (d), (k), in so far as they relate to section 21(1), (l), (m) or (o) of the Second-Hand Goods Act, are inserted in Part IV by clause 7. Slide39

CLAUSE 8: AMENDMENT OF SCHEDULE 2

Clause

8 inserts a new Part V in Schedule 2 in order to provide for –

the offences referred to in sections 36 and 37 of the General Law Amendment Act; andtheft involving essential infrastructure not covered in Part II of that Schedule. The effect of this insertion is that minimum sentences ranging from 3 to 7 years can be imposed for these offences. Slide40

CLAUSE 8 CONTINUED

The minimum sentence for any of the included essential infrastructure-related offences

is 3 years.Slide41

CLAUSE 9

Clause 9 amends Schedule 1 to the POCA by inserting the newly created offence in clause 3 into that Schedule so that certain provisions of POCA will be applicable to the offence created.Slide42

CLAUSE 10: SHORT TITLE AND COMMENCEMENT

This clause contains the short title and commencement date.A commencement provision is necessary so that the directives and instructions issued by the head of the institutions to police officials, prosecutors and the judiciary can be changed and that they can be informed of the changes to the law.Slide43

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