BRIEFING:CRIMINAL MATTERS AMENDMENT BILL, 2015 : PORTFOLIO COMMITTEE ON JUSTICE AND CORRECTIONAL SERVICES: 19 AUGUST 2015

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 tons

STATISTICS CONTINUED International Average Monthly Copper Spot Price: April 2015: $6 432 March 2015: $6 026 May 2014: $6 885 Relationship between the level of theft and US$ price SA exports of waste copper products: March 2015: $7,2 million January 2015: $3,4 million August 2014: $7,0 million

STATISTICS CONTINUED Upward movement in the level of exports since Jan 2015 SA has only 2% of the global copper reserves SA now the largest exporter of copper to China and India Loss to the economy: R5 – R7 billion per year Stolen cables must be replaced before essential maintenance

BACKGROUND The level of essential infrastructure-related crimes in South Africa is unacceptably high. Offences of this nature are committed in respect of essential infrastructure, used to provide or distribute basic services to the public, involving metal (both ferrous and non-ferrous metal). This type of criminal activity poses a risk to, among others, public safety, electricity and water supplies, communications and transportation.

BACKGROUND CONTINUED 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. The Bill is intended to build safer communities by addressing the threat and damage caused to essential infrastructure through metal theft.

BACKGROUND CONTINUED The Bill also seeks to protect our infrastructure, in which public investment is placed and to ensure that the country meets its economic growth targets and increases employment. Therefore, 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.

SUMMARY OF BILL The aim of the Bill is to change the law relating to – the granting of bail; and the imposition of minimum sentences, in respect of persons accused of essential infrastructure-related offences. A new offence is also created.

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 new offence to be created relates to the tampering with or the damaging or destroying of essential infrastructure. Essential infrastructure is defined in the Bill and will be discussed under clause 1.

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, such as energy, transport, communications, water and sanitation, to the public. The definition of “tamper” clarifies its meaning and distinguishes it from damaging property.

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.

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.

CLAUSE 3: OFFENCE RELATING TO ESSENTIAL INFRASTRUCTURE Clause 3 creates a new offence. It 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.

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”.

CLAUSE 4: AMENDMENT OF SCHEDULE 5 TO THE CPA As already indicated, the CPA regulates the granting of bail. As also indicated already, the CPA 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.

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.

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.

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).

CLAUSE 4 CONTINUED A 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.

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.

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.

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;

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;

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;

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; possession 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.

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.

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; or caused damage to essential infrastructure; or was 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;

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.  

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; and if the offence was committed by a law enforcement officer and the amount involved is

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; and

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.

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.

CLAUSE 5 CONTINUED The periods of sentencing are as follows: Part I: Imprisonment for life Part II: 15, 20 or 25 years’ imprisonment Part III: 10, 15 or 20 years’ imprisonment Part 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.

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: The offences referred to in section 2, 4, 5 and 6 of the POCA involving essential infrastructure.

CLAUSE 6 CONTINUED 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. 2. Theft, involving essential infrastructure – causing interference with a basic service; causing damage to essential infrastructure; or

CLAUSE 6 CONTINUED committed by persons in positions of trust, namely- law enforcement officers; security officers; employees; contract workers; and committed by a group of persons (syndicates).

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.

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; and 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, are inserted in Part IV by clause 7.

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; and theft 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.

CLAUSE 8 CONTINUED The minimum sentence for any of the included essential infrastructure-related offences is 3 years.

CLAUSE 9: 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.

THANK YOU