Summary of the Witness Protection Act, no. 112 of 1998

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The Witness Protection Act establishes the structures, rules and procedures for the protection of people who have to testify in court. It also sets out the duties and responsibilities of all the people involved in making sure that witnesses are safe.


Contents

[edit] The Witness Protection Office

The Act sets up an Witness Protection Office in the Department of Justice and regulates the functioning of witness protection.

Branch offices are also established in terms of the Act. These are headed by witness protection officers.


[edit] Who Heads Up the Office?

The Minister of Justice appoints a Director to head up the Office. The person may be helped by designated officers of the Department of Justice; witness protection officers; security officers; other officers who may have been seconded to the Office; and any other person employed by the Office because of their necessary skills.

The Director-General of Justice can ask the Secretary of Defence; the National Commissioner of the South African Police Service; the Director-General of the National Intelligence Agency; the Director-General of the South African Secret Service; or the Commissioner of Correctional Services to second a member of its service as a security officer to assist the Office.

What Are the Duties of the Director?

The Director must, among other duties,

  • ensure the protection of witnesses;
  • perform any administrative tasks which relate to protection;
  • enter into agreements with other state departments or institutions which can help with witness protection; and
  • generally oversee the work of the Office and its branches.

[edit] Who Is Entitled to Witness Protection?

Any person who believes that their safety is threatened can tell the investigating officer or any person in charge of a police station. If the witness is in prison, the person in charge of the prison or registered social worker should be told. A person who feels unsafe can also speak to a public prosecutor, an “interested functionary”, or an Office member. The person will then have to apply for witness protection. If the witness is unable to make the report or to apply for protection, then any “interested party or investigating officer” may do so on their behalf. In the case of a minor, the consent of a parent or guardian is needed. If concern for safety is reported to any one of the persons listed above, that person must help the witness with the application, to notify the Director and to submit the application to the Director or witness protection officer.

Once the Director or a witness protection officer is aware of an application, he or she may place the witness in temporary witness protection if deemed necessary. Temporary witness protection may not exceed 14 days. If the report or application is made by someone other than the witness, then the witness’s consent is required and if the witness is a minor, the parent or guardian’s. In exceptional cases, the Director may rule that consent is not required.

The witness protection officer must submit a report detailing, among other issues, why the application should be approved or denied.

[edit] What Are the Factors that Influence Applications for Protection?

The Director will first look at the recommendations of the witness protection officer or the recommendations of any other functionary.

Other factors which will also be considered include:

  • the risks posed to the witness or the community;
  • the importance of the evidence;
  • costs involved;
  • whether the witness will be able to cope in the protection programme, and
  • any other factors the Director thinks are relevant.

The Director is entitled to any police docket, statement given by the witness and evidence given in proceedings in order to make an assessment as to whether the application for protection should be approved or denied.

[edit] Is There Any Review or Appeal Process?

Yes, an aggrieved person can appeal to the Minister of Justice if witness protection is denied or if they wish to extend the terms of the protection agreement.

[edit] What Is a Protection Agreement?

This in agreement entered into between the Director and the witness and provides the duties and responsibilities of the parties to the agreement. It would include, among other responsibilities, a duty on the Director to take the necessary reasonable steps to ensure protection and the duty on the witness to give evidence. It would also include the responsibility of the witness to behave appropriately and not to get involved in any criminal activity.

[edit] What About Minors?

Minors cannot enter witness protection without the consent of a parent or guardian. However, there are exceptions to this rule. If the parent or guardian is a suspect or if there is no parent or guardian or neither a parent or guardian can be found, or the parent or guardian is "unreasonably withholding" consent, then the Director may place the minor under protection. The Director must then within 7 days of placing the minor in protection submit a report to the Judge President setting out the reasons for his or her action as well as a draft protection order. The Judge president can then confirm, set aside or amend the order. The Director becomes the curator ad litem of the minor if there is no consent from the parent or guardian.

[edit] How Long Does Witness Protection Last?

The witness protection will remain until the Director is of the opinion that the witness’s safety is no longer in danger. However, if the witness fails to comply with the terms of the protection agreement or fails to enter a protection agreement, then they will be discharged from witness protection. Furthermore, if the actions of the witness places other protected persons in danger or if the witness seriously damages the place of safety, they will also be discharged. Finally, if the witness lied about a material aspect when applying for protection, they will be also discharged from witness.

[edit] What About Confidentiality?

The Director and any member of the Office must take an oath of confidentiality and the Act states that no person can disclose any information obtained while fulfilling his or her duties under the Act. There are exceptions to this rule, for example if witnesses give their consent or if it is in the public interest. Nonetheless, when making the disclosure, factors such as the safety of the witness and the reasons for the disclosure must be considered.

[edit] Is the Witness Protected in Court?

Yes, the presiding officer will make an order prohibiting any publication of information which may affect the security of the witness, such as information about where the witness is staying. Furthermore, no witness can be forced to give information which will affect his or her security, such as providing details of the place of safety.

[edit] What Happens If Another Person Discloses Confidential Information?

It is an offence to:

  • disclose information that threatens the safety of the witness;
  • disclose information that jeopardises the efficiency of the witness protection programme; and/or
  • allow access to a protected person.

Offenders will have to pay a fine or can be imprisoned for a period of up to 30 years.

[edit] Can a Person Get Witness Protection Regardless of the Crime?

The Act provides a schedule which lists the crimes for which a witness can be placed under protection. The most common crimes include:

  • treason,
  • sedition,
  • murder,
  • rape,
  • robbery, and
  • kidnapping, among others.

The schedule also provides the Director with the power to provide a witness with protection even if the crime is not a scheduled offence if he or she believes that the safety of a witness is at stake.

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