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Report No. 198

7.2 South Africa

In South Africa, 'Witness Protection Act, 1998' is applicable for the purpose of protection of witnesses. An office known as Office for Witness Protection is established. The head of the office is called Director. Powers, functions and duties of the Director are prescribed in section 4. Branch offices may also be established and Witness Protection Officer can be appointed as head of such branch offices.

Under section 7, an application for witness protection may be given. Any witness who has reason to believe that his safety or the safety of any related person may be threatened by any person or group of persons by reason of his being a witness, may report accordingly and apply that he or any related person be placed under protection. Such report may be made (i) to the investigating officer; (ii) to any person in charge of a police station; (iii) to the in-charge of the prison if he is in prison; (iv) to any person registered as a social worker under the Social Works Act, 1978, if he is in prison; (v) to the public prosecutor; (vi) to any member of the office of the witness protection.

Under section 7(2), if such witness is unable to make a report or make an application for protection, any interested person or investigation officer may make such report or application on behalf of the witness.

Any person to whom such report or application is made, shall forthwith inform the Director and submit the application to the Director or a Witness Protection Officer. The Director may refer an application to a Witness Protection Officer for evaluation and the submission of a report.

Under section 9, the Witness Protection Officer shall consider the merits of an application and, as soon as possible, report thereon to the Director. The report shall be in writing and should include particulars as to (a) whether a person concerned is a witness or not; (b) recommendations as to whether the person concerned qualifies for protection; (c) the factors taken into consideration and (d) any other matter. Witness Protection Officer may also recommend with regard to the nature and expected duration of the protection. If the Witness Protection Officer recommends that the application for protection be refused, he shall inform the Director, of the reasons for such recommendation.

Section 8 deals with interim protection, pending disposal of the application filed under section 7. The Director or a Witness Protection Officer, may, pending the finalisation of an application for protection of a witness, place the witness or related person under temporary protection for a period not exceeding 14 days for the safety of such witness or related persons.

Section 10(1) provides that the Director, while considering an application for protection, should take into account-

"(a) the nature and extent of the risk to the safety of the witness or any related person;

(b) any danger that the interests of the community might be affected if the witness or any related person is not placed under protection;

(c) the nature of the proceedings, in which the witness has given evidence or is or may be required to give evidence;

(d) the importance, relevance and the nature of the evidence given or to be given by the witness in the proceeding;

(e) the probability that the witness or any related person will be able to adjust the protection;

(f) the cost likely to be involved in the protection of the witness or any related person;

(g) the availability of any other means of protecting the witness without involving the provision of the Act;

(h) any other factor that the Director deems relevant."

Section 10(3) refers to an agreement between the witness and the Director in regard to the protection of the witness, which may be entered into under section 11. section 10(3) states that after having considered the application for protection, the Director may, (i) either approve the application and thereupon, the witness or related person under protection, in accordance with the agreement entered into by or on behalf of the witness or related person and the Director) or (ii) refuse the application.

Section 11 provides that the Director must, before he places any witness or related person under protection, enter into a witness protection agreement with such witness or related person setting out the obligations of the Director and the witness or related person in respect of such placement under protection. Obligations of the Director and the witness or related person are provided in sub section (4) of section 11. They include:

"(a) An obligation on the Directo.-

(i) to take such reasonable steps as are necessary to provide the protected person with the protection and related services, as referred to in the protection agreement concerned; and

(ii) not to keep a protected person under protection in any prison or police cell, unless otherwise agreed upon;

(b) an obligation on the witness or the related perso.-

(i) where applicable, to give the evidence as required in the proceedings to which the protection relates; Director in terms of the protection agreement;

(iii) to meet all legal obligations incurred by him or her, including any obligations regarding the custody and maintenance of children and taxation obligations;

(iv) to refrain from activities that constitute a criminal offence;

(v) to refrain from activities that might endanger his or her safety or that of any other protected person;

(vi) to accept and give effect to all reasonable requests and directions made or given by any members of the Office in relation to the protection provided to him or her and his or her obligations;

(vii) to inform the Director of any civil proceedings which have or may be instituted by or against him or her or in which he or she is otherwise involved;

(viii) to inform the Director of any civil proceedings which have or may be instituted by or against him or her or in which he or she is involved, either as a witness or as accused or otherwise; and

(ix) not to endanger the security or any other aspect of the protection of witnesses and related persons or related services or any other matter relating to a witness protection programme provided for in this Act;

(c) any other prescribed terms and conditions or obligations agreed upon; and

(d) a procedure in accordance with which the protection agreement may, if necessary, be amended."

Section 12 deals with 'protection to minors'.

Under section 13(10), the Director may, on his own accord, or upon receipt of a report from the Witness Protection Officer and after considering any representation of the protected person, by written notice, discharge any protected person.

However, under section 14, the Minister of Justice may review the decision of the Director to discharge any person from protection. Any person who feels aggrieved by any decision of or steps taken by the Director, may apply to the Minister to review the decision of the Director.

Section 15 deals with civil proceedings to which a protected person is a party or in which he is a witness. According to this section, if it appears to a judge of a High Court in an ex-parte application made to him by the Director, that the safety of any protected person might be endangered by the institution or prosecution of any civil proceedings in which a protected person is a party or a witness, the judge may make any appropriate order with regard to the institution or prosecution or postponement of those proceedings. The purpose of the order shall be to prevent the disclosure of the identity or whereabouts of the said protected person or to achieve the objects of the Act.

Section 16 refers to 'access to minor under protection'.

Section 17 provides that no person shall disclose any information which he has acquired in exercise of powers, functions etc. under the Act, except for the purpose of giving effect to the provisions of the Act or when required to do so by any court. Sub sections (5) to (7) provide the manner and condition in which the Director may disclose any information.

Section 18 prohibits publication of information concerning a protected person. The Presiding Officer shall make an order prohibiting the publication of any information, including any drawing, picture, illustration, painting, photograph (including photographs produced through or by means of computer software on a screen or a computer print out), pamphlet, poster or other printed matter, which may disclosei)

(i) the place of safety or location of any protected person or where he has been relocated;

(ii) the circumstances relating to his protection;

(iii) the identity of any other protected person and the place of safety or location when such person is being protected; or

(iv) the relocation or change of identity of a protected person.

The protected person is, however, not obliged to disclose the information mentioned above.

Section 19 contains a non-obstante clause and provides that no protected person when giving evidence or producing any book, document etc. in any proceedings or in any civil proceeding before a court, shall be obliged to disclose such information.

Under Section 20, the Director may receive any donation, bequest or contribution in money or otherwise from any source for the purpose of giving effect to the provisions of the Act.

Under section 21, the Minister of Justice may enter into an agreement with any international body, institution, organisation or foreign country in order t.-

(a) place a person who is being protected under a witness protection programme administered by that body, institution, organisation or country under protection in terms of the Act;

(b) admit protected person to a Witness Protection Programme in terms of any law applicable to that body, institution, organisation or in that country.



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