To provide for the establishment of an Office for the protection of witnesses; to regulate the powers, functions and duties of the Director: Office for Witness Protection; to provide for temporary protection pending placement under protection; to provide for the placement of witnesses and related persons under protection; to provide for services related to the protection of witnesses and related persons; to amend the Criminal Procedure Act, 1977, so as to make provision for witness services at courts; and to provide for incidental matters.
'witness protection officer' means any witness protection officer appointed in terms of section 5 (1).
placed under protection, shall be deemed to have been a protected person from the date of his or her placement under temporary protection; or discharged from temporary protection without being placed under protection, shall be deemed to have been a protected person only for the period during which he or she was under temporary protection.
There is hereby established an office within the Department called the Office for Witness Protection.
abolish any branch office or incorporate it with any other such office, and may for this purpose make any administrative or other arrangements as he or she may deem necessary; or amend or withdraw a notice issued in terms of this subsection.
The Minister must, subject to the laws governing the public service, appoint a person to the office of Director: Office for Witness Protection, who shall be the head of the Office.
The Director shall exercise the powers, perform the functions and carry out the duties conferred upon, assigned to or imposed upon him or her by or under this Act, subject to the control and directions of the Minister.
Whenever the Director is for any reason unable to exercise, perform or carry out his or her powers, functions and duties or when the appointment of a person as Director is pending, the Minister may, subject to the laws governing the public service, appoint a person as Acting Director to exercise, perform or carry out the powers, functions and duties of the Director.
The Director-General may, subject to the laws governing the public service, appoint a person as Deputy Director: Office for Witness Protection who shall, subject to the control and directions of the Director, exercise, perform or carry out any powers, functions and duties conferred upon, assigned to or imposed upon him or her by the Director.
the Director may refuse to accept the services of a person so designated and may thereupon request the body, institution or organisation concerned to designate another person.
Notwithstanding any other law, any officer or person seconded to the service of the Office in terms of paragraph (a) (iv) or (v), or any person whose services have been obtained in terms of paragraph (a) (vi) may exercise the powers and must perform the functions or carry out the duties conferred upon, assigned to or imposed upon him or her from time to time by the Director and shall, in the exercise, performance or carrying out of such powers, functions or duties, act in terms of the laws applicable to the Office.
Any person referred to in paragraph (a) (v) or (vi), who is not subject to the laws governing the public service, shall be entitled to such remuneration, including allowances for travelling and subsistence expenses incurred by him or her in the exercise, performance or carrying out of the powers, functions and duties conferred upon, assigned to or imposed upon him or her by the Director, as the Minister in consultation with the Minister of Finance may determine.
any other person whose services are obtained by the Director.
may exercise the powers and must perform the functions or carry out the duties conferred upon, assigned to or imposed upon him or her by or under this Act.
The Director may, either in general or in a particular case or in cases of a particular nature, in writing delegate any power, function or duty conferred upon, assigned to or imposed upon him or her by or under this Act to any other member of the Office.
Any member of the Office to whom any power, function or duty has been delegated under paragraph (a) shall exercise that power, perform that function or carry out that duty subject to the control and directions of the Director.
The Director may at any time in writing withdraw such delegation, and the delegation of any power, function or duty shall not prevent the Director from exercising, performing or carrying out that power, function or duty himself or herself.
All Departments of State must render such assistance as may be reasonably required in the exercise, performance or carrying out of the powers, functions and duties conferred upon, assigned to or imposed upon the Director by or under this Act.
The Director-General must, subject to the laws governing the public service, appoint for each branch office established in terms of section 2 (2) a person as witness protection officer, who shall be the head of such branch office.
Whenever a witness protection officer is for any reason unable to exercise, perform or carry out his or her powers, functions and duties or when the appointment of a person as witness protection officer is pending, the Director-General may, subject to the laws governing the public service, appoint a person as acting witness protection officer to exercise, perform or carry out the powers, functions and duties of the witness protection officer concerned.
In order to achieve the objects of this Act and subject to the control and directions of the Director, a witness protection officer may exercise the powers and must perform the functions or carry out the duties conferred upon, assigned to or imposed upon him or her by the Director or under this Act.
A witness protection officer shall in the exercise of the powers, performance of the functions and carrying out of the duties conferred upon, assigned to or imposed upon him or her by the Director or under this Act, be assisted by other members of the Office designated for that purpose by the Director.
A witness protection officer must at all times control and supervise the activities of security officers in his or her area and must as often as the Director requires, but at least once every six months, submit a written report to the Director on such activities or on any other matter relating to this Act which the Director requests the witness protection officer to deal with in such report.
the Commissioner: Correctional Services, as the case may be, to second any member of the security services referred to in section 199 (1) of the Constitution, or any correctional official in the employ of the Department of Correctional Services, as a security officer to the service of the Office in terms of the laws regulating such secondment.
In order to achieve the objects of this Act and subject to the control and directions of the Director, a security officer seconded in terms of subsection (1) may exercise the powers and must perform the functions or carry out the duties conferred upon, assigned to or imposed upon him or her by the Director or a witness protection officer, or in terms of this Act, and shall, in the exercise, performance or carrying out of such powers, functions or duties, act in terms of the laws applicable to the Office.
[Date of commencement of s. 6: to be proclaimed.
apply in the prescribed manner that he or she or any related person be placed under protection.
any interested person or the investigating officer concerned, who has reason to believe that the safety of the witness or any related person is or may be threatened as contemplated in subsection (1), may make such a report or application on behalf of the witness.
Subject to section 12, an application for protection of a minor may be made by or on behalf of the minor without the consent of his or her parent or guardian.
inform the Director of the application; and submit the application to the Director or a witness protection officer.
The Director may, whenever he or she deems it necessary, refer an application for protection submitted to him or her, to a witness protection officer for evaluation and the submission of a report as contemplated in section 9 (1).
if a report or an application has been made as contemplated in section 7 (2) (a) , the witness or related person may only be placed under temporary protection if he or she has consented thereto; and no minor shall be placed under temporary protection without the consent of his or her parent or guardian, unless the Director is of the opinion that exceptional circumstances exist which do not warrant such consent.
If a witness protection officer places a witness or related person under temporary protection as contemplated in subsection (1), he or she must report such placement within 48 hours to the Director.
if the person has been placed under temporary protection as contemplated in section 8 (1), before the expiry of such temporary protection, report thereon to the Director.
particulars relating to the factors referred to in section 10 (1); and any other matter which in the opinion of the witness protection officer should be taken into account.
If a witness protection officer recommends that a person be placed under protection, he or she may make recommendations with regard to the nature of the protection, the expected duration of the protection and any particular circumstances that ought to be taken into account in the placement under such protection.
If a witness protection officer recommends that an application for protection be refused, he or she must inform the Director of the reasons for such recommendation.
In order to enable him or her to make a proper evaluation of an application for protection, the Director must be afforded immediate and full access to any police docket and statement of a witness and to any evidence given in any proceedings, and he or she is entitled to obtain copies of any such statement or of such evidence or any part thereof.
any other factor that the Director deems relevant.
approve the application and thereupon place the witness or any related person under protection in accordance with the protection agreement entered into by or on behalf of the witness or related person and the Director; or refuse the application and, where applicable, by written notice to the witness revoke any temporary protection under which he or she or any related person has been placed in terms of section 8 (1).
enter into a written protection agreement with such witness; and where applicable, enter into a separate written protection agreement with each related person, setting out the obligations of the Director and the witness or related person in respect of his or her placement under protection.
a minor; or a person who is otherwise not competent to enter into a legally binding agreement; or enter into a draft protection agreement with a minor referred to in the proviso to section 12 (1).
If the Director has entered into a protection agreement as contemplated in subsection (2), he or she may, as soon as possible after the protected person concerned becomes competent to enter into a legally binding agreement, require the protected person to enter into a new protection agreement.
any other prescribed terms and conditions or obligations agreed upon; and a procedure in accordance with which the protection agreement may, if necessary, be amended.
whose parent or guardian cannot be identified or found, notwithstanding reasonable efforts to do so; or whose parent or guardian is unreasonably withholding or is unable to give his or her consent, may be placed under protection without the consent of his or her parent or guardian if the Director is of the opinion that it is necessary to do so for the safety of the said minor.
the draft protection agreement referred to in section 11(2) (b) , for consideration by a judge in chambers.
The Director must also furnish to the minor concerned and, where applicable, to his or her parent or guardian, a copy of the report and the draft protection agreement referred to in paragraph (a).
to be in the best interests of the minor; and necessary to ensure the safety of the minor.
the Director must forthwith discharge such minor from protection.
Any draft protection agreement ratified or amended in terms of subsection (3), shall constitute a binding protection agreement.
The Director shall be the curator ad litem of a minor who, without the consent of his or her parent or guardian, has been placed under temporary protection as contemplated in section 8 (1) or protection as contemplated in the proviso to subsection (1).
The Director may, subject to subsections (4) and (5) and after consideration of any representations referred to in subsection (5), upon receipt of a written notice given by the interested functionary concerned that the evidence of a witness is no longer required in the proceedings concerned or that such proceedings have been concluded, by written notice, discharge such witness and all related persons from protection.
the person has wilfully caused serious damage to the place of safety where he or she is protected or to any property in or at such place of safety.
he or she must forthwith report the matter to the Director.
the parent or guardian of a minor; or a minor referred to in the proviso to section 12 (1), who is to be discharged from protection in terms of subsection (2), if he or she is of the opinion that the safety of such protected person is still being threatened after the conclusion of the proceedings concerned, extend the protection of such person for as long as it may in his or her opinion be necessary: Provided that the protection of a minor referred to in the proviso to section 12 (1), may not be so extended without the prior approval of a judge in chambers.
the protected person and, if he or she is a minor, his or her parent or guardian of the contemplated discharge in terms of subsection (2), and must allow the protected person, and, where applicable, his or her parent or guardian, and the interested functionary concerned to make written representations to him or her within the prescribed period and in the prescribed manner in relation to any matter regarding such discharge.
a minor referred to in the proviso to section 12 (1), submits a waiver of protection, in the prescribed manner, to the Director.
The Director must, subject to subsection (8), upon receipt of a waiver of protection referred to in subsection (6), without delay discharge the protected person from protection.
a protected person referred to in section 21 (1) (a) from protection in terms of this section without the prior approval of the Minister; or a minor referred to in the proviso to section 12 (1) from protection in terms of this section without the prior approval of a judge in chambers.
Any person who feels aggrieved by any decision of or steps taken by the Director or any person acting on behalf of the Director under a provision of this Act, may within the prescribed period and in the prescribed manner, apply to the Minister to review the decision or steps concerned.
Any civil proceedings in which a protected person is a party or a witness may, subject to the provisions of subsection (2), be proceeded with in terms of the laws regulating such proceedings.
preventing the disclosure of the identity or whereabouts of the said person; or achieving the objects of this Act.
Notice of any order made in terms of subsection (2) must be given to the parties to the proceedings concerned and to their legal representatives in accordance with the rules of court.
The address of the Office for Witness Protection shall for all purposes of service of process on a protected person, serve as the domicilium citandi et executandi of such person and notice of such address must be given in writing by the Director and delivered by hand or sent by registered mail by him or her to all other parties or their legal representatives.
If a judge of a High Court in an ex parte application, made to him or her in chambers by the Director, is satisfied that the safety of a minor who is under protection might be endangered by the exercising by anyone of his or her right of access to that minor, the judge may suspend such right of access or make any order he or she deems appropriate with regard to the exercising of such right in a manner aimed at preventing the disclosure of the identity or whereabouts of the said minor; or achieving the objects of this Act.
The Director and every other member of the Office must, upon taking office, take an oath or make an affirmation in the form specified in subsection (3).
The Director must take the oath or make the affirmation referred to in subsection (1) before the Director-General.
Any other member of the Office must take the oath or make the affirmation referred to in subsection (1) before the Director.
'I, A B, hereby declare under oath/solemnly affirm that I understand and shall honour the obligation of confidentiality imposed upon me by or under the provisions of the Witness Protection Act, 1998, and shall not act in contravention thereof.'.
if he or she is authorised thereto by the Minister; or in terms of subsection (5).
the protected person concerned; or Provided that the Director may not disclose any information in respect of a minor referred to in the proviso to section 12 (1) without the prior approval of a judge in chambers.
the protected person; or the parent or guardian of the protected person, if he or she is a minor, in the prescribed manner of the contemplated disclosure and must allow the protected person or, where applicable, his or her parent or guardian, to make written representations to him or her within the prescribed period and in the prescribed manner in relation to any matter regarding such disclosure.
The provisions of paragraph (a) do not apply if the Director is of the opinion that such notification may jeopardise the purpose for which the information is to be disclosed.
whether there are effective means available to prevent any further disclosure of the information; and any other factor that, in the opinion of the Director, should be taken into account.
which came into his or her possession; or to his or her knowledge was disclosed to him or her, if he or she ought to have reasonably suspected that such information was disclosed to him or her in contravention of the provisions of that subsection.
Notwithstanding any other law, no person in respect of whom proceedings are, or may be, or have been instituted or conducted, or who is a suspect in such proceedings, shall have access to any information, record, document or statement relating to the proceedings concerned, including any information, record, document or statement which is contained in, or forms part of, a police docket or is held by any police official charged with the investigation relating to such proceedings, which may disclose any information referred to in section 18, unless the Director otherwise directs.
the relocation or change of identity of a protected person, unless the Director satisfies the presiding officer concerned that exceptional circumstances, which are in the interest of justice, exist why such an order should not be made.
when giving evidence or producing any book, record, document or object in his or her possession or under his or her control in any proceedings or in any civil proceedings before a court; or if he or she is in terms of any law compellable to answer questions or to give evidence or to produce any book, record, document or object in his or her possession or under his or her control in any proceedings, other than the proceedings referred to in the definition of 'proceedings' in section 1, instituted or conducted in terms of any law, when answering the questions or giving the evidence or producing that book, record, document or object in such proceedings, shall be obliged to disclose any information referred to in section 18.
The Director may, with the approval of the Director-General, receive any donation, bequest or contribution, in money or otherwise, from any source for the purpose of giving effect to the provisions of this Act, and the Director-General must be notified of the receipt of any such donation, bequest or contribution.
The Director must utilise any donations, bequests or contributions contemplated in subsection (1) as prescribed and in accordance with the conditions, if any, imposed by the donor, testator or contributor concerned, in so far as such conditions are not inconsistent with the provisions of this Act.
[Date of commencement of s. 20: to be proclaimed.
Provided that no person referred to in paragraph (a) shall be placed under protection without the consent of the Minister.
For the purpose of giving effect to the provisions of subsection (1), any Minister shall, in relation to a person in respect of whom an agreement as contemplated in subsection (1) has been entered into and upon a recommendation by the Minister, exercise, perform or carry out any power, function and duty conferred upon, assigned to or imposed upon such Minister by or under any law.
wilfully or negligently contravenes any provision of section 17 (4), (8) or (9), or who discloses information in contravention of any condition determined by the Director in terms of section 17 (5), shall be guilty of an offence and on conviction be liable to a fine or to imprisonment for a period not exceeding 30 years.
with intent to gain for himself or herself or for any other person protection in terms of this Act, makes any false statement or furnishes information that he or she knows to be untrue or misleading, shall be guilty of an offence and on conviction be liable to a fine or to imprisonment for a period not exceeding five years.
Upon the conviction of any person for an offence referred to in paragraph (a) (iii), the public prosecutor must, if the State has suffered any loss as a result of such offence, apply for an order for the payment of compensation in terms of section 300 of the Criminal Procedure Act, 1977 (Act 51 of 1977).
in general, any matter which the Minister deems necessary or expedient to prescribe in order to achieve the objects of this Act.
Different regulations may be made in respect of different categories of witnesses or related persons.
Any regulation made under subsection (1) must, before publication thereof in the Gazette , be submitted to Parliament.
Any regulation made under subsection (1) may provide that any person who contravenes a provision thereof or fails to comply therewith shall be guilty of an offence and on conviction be liable to a fine or to imprisonment for a period not exceeding three years.
Any regulation made under subsection (1) which may result in financial expenditure for the State must be made in consultation with the Minister of Finance.
Repeals section 185A of the Criminal Procedure Act 51 of 1977.
any rule, notice, order, instruction, prohibition, authorisation, permission, consent, exemption, certificate or document promulgated, issued, given or granted and any other steps taken in terms of any such regulation prior to the commencement of this Act, shall remain in force, except in so far as it is inconsistent with this Act, until replaced by or in terms of a regulation made under section 23.
25 Inserts section 191A in the Criminal Procedure Act 51 of 1977.
This Act shall be called the Witness Protection Act, 1998, and shall come into operation on a date fixed by the President by proclamation in the Gazette.
[Schedule amended by s. 36 (1) of Act 12 of 2004 and substituted by s. 68 of Act 32 of 2007.
when there are aggravating circumstances; or involving the taking of a motor vehicle.
Defeating the ends of justice.
Matters Amendment Act, 2007.
the value of the dependence-producing substance in question is more than R10 000,00; or the value of the dependence-producing substance in question is more than R5 000,00 and that the offence was committed by a person, group of persons, syndicate or any enterprise acting in the execution or furtherance of a common purpose or conspiracy; or the offence was committed by any law enforcement officer.
Any offence referred to in section 1 or 1A of the Intimidation Act, 1982 (Act 72 of 1982).
the dealing in or smuggling of ammunition, firearms, explosives or armament; or the possession of an automatic or semi-automatic firearm, explosives or armament.
Combating of Corrupt Activities Act, 2004.
Any offence referred to in the Prevention of Organised Crime Act, 1998.
Any other offence which the Minister has determined by regulation.
Any other offence in respect of which it is alleged that the offence was committed by a person, group of persons, syndicate or any enterprise acting in the execution or furtherance of a common purpose or conspiracy; or a law enforcement officer, and in respect of which the Director is of the opinion that the safety of a witness who is or may be required to give evidence, or who has given evidence in respect of such an offence in any proceedings or any related person, warrants protection.
Any other offence in respect of which the Director, after having considered the factors mentioned in section 10 (1) and any information gained in terms of section 10 (2), is of the opinion that the safety of a witness who is or may be required to give evidence, or who has given evidence in respect of such an offence in any proceedings or any related person, warrants protection.