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Memorandum of Objects

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Criminal Procedure Amendment Bill

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PURPOSE OF BILL
1.1 Section 154 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977) (the ‘‘Act’’), prohibits the publication of certain information relating to criminal proceedings. Section 154(3) provides that no person shall publish in any manner whatsoever any information which reveals or may reveal the identity of an accused under the age of 18 years or of a witness at criminal proceedings who is under the age of 18 years: Provided that the presiding judge or judicial officer may authorise the publication of so much of such information as he or she may deem fit if the publication thereof would in his or her opinion be just and equitable and in the interest of any particular person.

1.2 In Centre for Child Law and Others v Media 24 Limited and Others 2019 ZACC 46 (the ‘‘Centre for Child Law judgment’’), the Constitutional Court held that section 154(3) of the Act does not afford protection to child victims of criminal offences and that the protection does not continue to apply even after a child accused, witness or victim turns 18 years of age, whereas it ought to, and section 154(3) is, for those reasons, inconsistent with the Constitution of the Republic of South Africa, 1996 (the ‘‘Constitution’’). The declaration of constitutional invalidity was suspended for 24 months to afford Parliament an opportunity to correct the defect giving rise to the constitutional invalidity.

The Constitutional Court granted interim relief by way of a reading-in to ensure that, during the period of suspension of invalidity, the protection—
(a) afforded by section 154(3) is also extended to child victims of criminal
offences; and
(b) continues to apply after a child accused, witness or victim turns 18 years
of age.

1.3 The Criminal Procedure Amendment Bill, 2021 (the ‘‘Bill’’), seeks to amend section 154 to address the constitutional invalidity of the provision.

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Cape Independence Advocacy Group

Dear Speaker,

I am writing to you on behalf of the Cape Independence Advocacy Group (CIAG) and the seventy thousand South Africans who actively follow our work.

We wish to comment on the ‘Electoral Commissions Amendment Act, 2021’, which is proposed by the Democratic Alliance (DA) and was published in the Government Gazette on 21 June 2021.

Given our mandate, our comments are made in the context of the Western Cape, although we appreciate and respect that the constitutional rights enacted through this bill will rightfully apply to all provinces.

This bill is essential to restoring some degree of functional democracy to the voters of the Western Cape and we therefore unreservedly and wholeheartedly endorse it.

Through their voting behaviour, Western Cape voters have made it abundantly clear that they do not endorse many of the policy and ideological positions of the South African national government, but are left utterly powerless to resist them because the voters in other South African provinces, who greatly outnumber them, hold starkly different ideological and political opinions.

In terms of seeing their democratic will enacted, for the majority of Western Cape voters, the democratic era has not offered much of an improvement over the apartheid era. It is a statistical fact that, since 1994, the majority of Western Cape voters have never been governed by the political party they voted for, and they have no foreseeable prospect of ever being governed by the party they vote for. As such, they cannot be said to have functional democracy.

One of the few glimmers of democratic hope Western Cape voters do have, is the provision of Clause 127(2)(f) of the national constitution, and 37(2)(f) of the Western Cape constitution, which allows them, at the discretion of the premier who they elected, to have their voices heard on matters which are important to them, without being drowned out by a national majority who fundamentally hold different views.

To deny Western Cape voters this constitutional right would be a very serious infringement of their political rights and freedoms, and would be a clear indication that parliament and the national government are not interested in the constitutional rights and democratic wishes of Western Cape voters.

We therefore call upon parliament to pass this bill at the earliest opportunity, and without objection.

Yours Faithfully

Phil Craig
(On behalf of the Cape Independence Advocacy Group)