Witness Protection Act

27 November 1998 It is hereby notified following Act which information:- that the President has assented is hereby published to the for general Hierby word bekend gemaak dat die Prtxrclt’nt \y goed- ter keuring geheg het aan die onderstaande Wet \icat hierby algemene inligting gepubliseer word:- No. I 12 of 1998: Witness Protection Act, 1998. No. 112 van 1998: Wet op Getuiebeskerming. 19%. 2 No. 19523 Act No. 112, 1998 GOVERNMENT GAZE=E. 27 NOVEMBER 1998 WITNESS PROTECTION ACT. 1998 GENERAL EXPLANATORY NOTE: Words underlined with a solid existing enactments. line indicate insertions in (English text signed bJ the President.) (Assented to 19 November 1998.) ACT the powers, functions for for the establishment To provide regulate Protection; protection; protection; persons; witness services at courts; and to provide to of an Office for the protection of witnesses; and duties of the Director: Office for Witness protection under to provide of witnesses and related persons under to provide to provide for services related to the protection of witnesses and related for to amend the Criminal Procedure Act, 1977, so as to make provision temporary for the placement for incidental matters. placement pending B E IT ENACTED follows:- Definitions by the Parliament of the Republic of South Africa, as 1. (1) In this Act, unless the context otherwise (i) (ii) (iii) (iv) (v) (vi) (vii) (viii) indicates- of inquiry appointed in terms of an Act of the Republic of South Africa. the Independent Complaints Directorate, “commission” means any commission of Parliament; (xv) “Complaints Directorate” means established under section 50 of the South African Police Service Act, 1995 (Act No. 68 of 1995); (xiv) “Constitution” means the Constitution (Act No. 108 of 1996); (xi) “Department” means the Department of Justice; “Director” means terms of section 3( 1); (vi) “Director-General” means the Director-General: Justice; “Director of Public Prosecutions” means any Director of Public Prosecutions appointed under section 13( 1) of the National Prosecuting Authority Act, 1998 (Act No. 32 of 1998); (viii) “interested (a) functionary” means- the Director of Public Prosecutions conducting of criminal proceedings in the Schedule required to give evidence or has given evidence on behalf of the State; responsible in respect of any offence referred to is or may be the Director: Office for Witness Protection, to this Act, in respect of which a witness for the institution appointed I996 (vii) (v) in 5 IO I5 and 20 (i) thereto of a commission (h) any person designated the cha irperson proceedings before a commission; the person presiding the judicial Inquests Act, 1959 (Act No. 58 of 1959); or in writing by- or officer presiding at proceedings (ii) (iii) the person presiding at 25 before a Tribunal; at inquest proceedings under the - .-.- -- ..-.___... 4 No. 19523 GOVERNMENT GAZETTE. 27 YOVEMBER 1998 - Act No. 112, 1998 WITNESS PROTECTION ACT, 1998 (i~f) the Executive Director of the Complaints Directorate or the person presiding by the Complaints Directorate, at or heading an investigation conducted to sive evidence or has (c) ;1 witness is or may be required before whom given evidence: or (i) for the purposes of Chapters 5 and 6 of the Prevention Crime Act, 1998, the National Director as contemplated that Act; “law enforcement includes- (n) for the purposes of the Schedule othcer”, of Organised in section 1 of to this Act, Intelligence Agency or the South African Services Act, 1994 under the Intelligence (h) official in the employ of the Department of Correctional a member of the National Secret Service, established (Act No. 38 of 1994); and a correctional Services; (xxv) in section 3(5)((r); (xvi) to in section 179(l)(a) of the Constitution; the Director, Deputy Director and any other the National Director of Public Prosecutions, “member of the Ofice” means person contemplated “Minister” means the Minister of Justice; (xvii) “National Director” means referred “Office” means including “place of safety” means a place of safety as designated by the Director; (xix) “prescribed” means prescribed by regulation made under section 23; (xxiv) “proceedings” mean any- (a) the Office for Witness Protection, established by section 2, in respect of any offence referred to in the Schedule in terms of section 2(2); (xiii) any branch office established (xviii) criminal proceedings to this Act; (b) proceedings before a commission (c) proceedings (d) proceedings under the Inquests Act, 1959 (Act No. ,58 of 1959); relating Directorate; or (xxii) referred to in Chapters 5 and 6 of the Prevention to an investigation conducted by the Complaints (e) proceedings or a Tribunal; of Organised Crime Act, 1998; referred temporary in a close as contemplated to in section 11; (iv) in terms of this Act, excluding in section 8, and may include agreement” means an agreement the relocation or to, a “protected person” means any person who has been placed under protection; (ii) “protection” means any protection protection change of identity of, or other related assistance or services provided protected person, as prescribed; (iii) “protection “related person” means any member of the family or household of a witness, or any other person to, or association with, such relationship witness; “security 6(l); (xii) “this Act” includes “Tribunal” means any Special Tribunal established under section 2 of the Special Investigating Units and Special Tribunals Act, 1996 (Act No. 74 of 1996); (xxi) “witness” means any person who is or may be required who has given evidence “witness protection officer” means any witness protection officer appointed terms of section 5( 1). (x) officer” means any security officer seconded to give evidence, or in terms of section in any proceedings; the regulations; (ix) and (xxiii) (xx) in (ix) (x) (xi) (xii) (xiii) (xiv) (xv) (xvi) (xvii) (xviii) (xix) (xx) (xxi) (xxii) (xxiii) (xxiv) (xxv) (2) For the purposes of sections 15, 16, 17, 18, 19,21 and 22, and where applicable, in terms any witness or related person who has been placed under temporary protection of section 8( 1) and who, at the expiry of such temporary protection, is- (u) placed under protection, shall be deemed to have been a protected person from the date of his or her placement under temporary protection; or 5 10 15 20 25 30 35 40 45 50 55 6 No. 19523 GOVERNMENT GAZETTE, 27 NOVEMBER 1998 Act No. 112,199s WITNESS PROTECTION (b) discharged from temporary protection without being placed under protection, to have been a protected person only for the period during shall be deemed which he or she was under temporary protection. Establishment of Office for Witness Protection 2. (I) There is hereby established an office within the Department called the Office for 5 Witness Protection. (2) The Minister may, after consultation with the Minister for Safety and Security and the National Director, by notice in the Gazette- (a) (6) (c) of this Act; establish a branch office of the Office in any defined area for the purposes of the administration abolish any branch office or incorporate for this purpose make any administrative may deem necessary; or amend or withdraw a notice it with any other such office, and may as he or she issued in terms of this subsection. or other arrangements Director and members of Office 3. (1) The Minister must, subject the public service, appoint a person to the office of Director: Office for Witness Protection, who shall be the head of the Office. to the laws governing 10 15 (2) The Director shall exercise duties conferred upon, assigned subject to the control and directions of the Minister. the powers, perform the functions and carry out the to or imposed upon him or her by or under this Act, 20 the Director (3) Whenever 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 public service, appoint a person as Acting Director to exercise, perform or carry out the powers, functions and duties of the Director. the Minister may, subject to the laws governing (4) The Director-General may, subject 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 to or imposed upon him or her by the Director. and duties conferred upon, assigned to the laws governing (5) (a) The Director shall in the exercise of the powers, performance of the functions 25 30 and carrying out of the duties conferred upon, assigned by or under this Act, be assisted, subject to his or her control and directions, by- to or imposed upon him or her (i) officers of the Department designated for that purpose by the Director- 35 General; (ii) witness protection officers; (iii) (iv) officers of any other Department of State seconded security officers; for a particular service, in terms of the laws governing to the service of the Office, the public service; (v) persons in the service of any public or other body, institution or organisation, 0 i (vi) or organisation seconded with their consent to the service of the Office; and who can render a service in respect of any matter provided for by or under this Act and who are by arrangement with the body, institution concerned any other person whose services are obtained by the Director. (a)(v)- or organisation which made an arrangement with the if (Q)(V), must from to do so, furnish him or her with a list of the control of that body, to assist the Director as (b) For the purposes of paragraph any body, institution Director as contemplated requested by the Director the names of persons, institution or organisation, who are fit and available contemplated in the said subparagraph such a body, institution or organisation must, at the request of the Director, designate a person or persons mentioned so to assist the Director; and the Director may refuse to accept the services of a person so designated and may to designate another person. in the employ or under in the list concerned or organisation time to time, in paragraph the body, concerned in writing thereupon institution request (iii) (v); (ii) 40 45 50 55 No. 19523 GOVERNMENT GAZETTE. 27 NOVEMBER 1998 Act No. 112, 1998 WITNESS PROTECTION ACT. 1998 (c) Notwithstanding any other law, any officer or person seconded to the service of the (N)(iv) or (v), or any person whose services have been Office in terms of paragraph the obt;tinrd functions or carry out the duties conf’erred 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 ot‘ Auch powers, functions or duties. act in terms of the laws applicable the powers and must perform in terms of paragraph (cr)(vi) may exercise to the Office. Cd) Any person referred to in paragraph &j(v) or (vi), who is not subject to the laws including to such remuneration, ser\kx. the public for travetling governing allowances exercise, performance upon. assigned consultation with the Minister of Finance may determine. or carrying out of the powers, shall be entitled and subsistence expenses to or imposed upon him or her by the Director, as the Minister incurred functions by him or her in the and duties conferred in 5 10 Powers, functions and duties of Director 4. ( 1) In order to achieve the objects of this Act, the Director- for the protection of witnesses and related persons, including 15 to make use of the services of persons, bodies, is responsible temporary protection, and related services must carry out the administrative and related persons, into agreements may enter institutions or or5@sations; may make rin arrangement with any Department agreement with any person, body, institution or organisation- (i) temporary protection, duties relating including in accordance with this Act; to the protection of witnesses and related services; belonging or equipment the ORice will be authorised to or under in terms of which facilities Department. person, body, institution or organisation; in order to obtain documents for the protection of a protected person; or regarding any matter for the purpose of giving effect to the provisions of this Act: to make use of the the control of such and other information that may be required (ii) (iii) of State or enter 20 into an the manner must regulate the procedure and determine in which the provisions of this Act shall be carried out by any branch office referred to in section 2(2); may designate places to be: utilised as places of safety; must exercise control over witness protection officers and security of5cers; an d may exercise duties conferred upon. assigned Act. the functions or carry out the to or imposed upon him or her by or under this the powers and must perform (2) (II) The Director m;ty. either case or in cases of a or duty conferred upon, to or imposed upon him or her by or under this Act to any other member of the in general or in a particular in writing delegate any power, function particukir nature, assigned Office. (h) Any member of the Office to whom any power, function delegated under paragraph out that duty subject (cl) shall exercise that power, perform to the control and directions of the Director. or duty has been that function or carry (c) The Director may at any time in writing withdraw such delegation, and the 45 delegation of any power, function or duty shall not prevent performing or carrying out that power, function or duty himself or herself. the Director from exercising, (3) All Departments as may be reasonably of State must render such assistance 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. 50 2s 30 3s 40 10 No. 19523 Act No. 112, 1998 GOVERNMENT GAZETTE. 27 NOVEMBER 1993 WITNESS PROTECTION ACT. I998 Witness protection officers 5. ( I) The Director-General must. subject appoin! protection officer, who shall be the head of‘ such branch oflice, for each branch office established to the laws governing the public service, in terms of section 2(2) a person as witness (2) Whenever a witness protection is for any reason unable to exercise, officer perform or carry out his or her powers, functions and duties or when the appointment of a person as witness protection officer is pending, 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. (3) In order to achieve the Director-General may, subject the objects of this Act and subject of the Director, a witness protection officer may exercise the functions or carry out the duties conferred upon, assigned her by the Director or under this Act. to the control and directions the powers and must perform to or imposed upon him or (4) A witness protection officer shall in the exercise of the powers, performance of the to or imposed upon functions and carrying out of the duties conferred upon, assigned 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. (5) A witness protection ofticer 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 report to the Director on such activities or on once every six months. submit a written any other matter relating the witness protection officer to dea: with in such report. to this Act which the Director requests Security officers 6. (I) The Director-General may request- the Secretary for Defence: the National Commissioner: the Director-General: National (a) (0) (c) CL!, the Director-General: (t.‘) the Commissioner: Con-ectionaI Services. South African Police Service; Intelligence Agency; South African Secret Service; or 5 10 15 20 25 30 :is the case may be, to second any member of the security services referred to in section I99( 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. (2) In order to achieve the objects of this Act and subject to the control and directions 35 the of the Director, a security officer seconded 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, or carrying out of such powers, functions or duties, act in terms of the laws applicable in the exercise, performance in terms of subsection ( I) may exercise to the Office. Application for protection 7. (1) Any witness who has reason to believe that his or her safety or the safety of any is or may be threatened by any person or group or class of persons, to him or her or not, by reason of his or her being a witness, may- related person whether known (CI) report such belief- (i) (ii) (iii) (iv) (v) concerned; officer in the proceedings in charge of a police station; to the investigating to any person if he or she is in prison, to the person in charge of tbe prison where he or she is being detained or to any person registered as a social worker under the Social Work Act, 1978 (Act No. 110 of 1978), or deemed to be so registered and who is in the service of a Department of State; to the public prosecutor or the interested to any member of the Office; and concerned; or functionary 40 45 50 12 No. 19523 GOVERNMENT GAZE-I-IX. 27 NOVEMBER 1998 Act No. 112, 1998 WITNESS PROTECTION ACT, 1998 (0) apply in the prescribed manner under protection. that he or she or any related person be placed (2) (CI) If a witness is for any reason unable to make a report as contemplated in ( l)(o) or to make an application subsection (l)(b), any interested person or the investigating believe contemplated witness. in subsection that the safety of the witness or any related person to is or may be threatened as (l), may make such a report or application on behalf of the officer concerned, who has reason for protection as contemplated in subsection (6) Subject to section 12, an application for protection of a minor may be made by or on behalf of the minor without (3) Any person assist the applicant is the Director, must forthwith- to whom a report is made as contemplated in the making of an application the consent of his or her parent or guardian. (I), must in subsection for protection and, unless he or she (n) (b) inform submit the Director of the application; the application and to the Director or a witness protection officer. (4) The Director may, whenever he or she deems it necessary, for to him or her, to a witness protection officer for evaluation and the refer an application protection submitted submission of a report as contemplated in section 9( 1). Temporary protection 8. (1) The Director or a witness protection otticer- 5 10 15 20 to whom a report referred (N) (0) who has been informed of an application to in section 7( 1) has been made; for protection or to whom a written in section as contemplated for protection application 7(3)(O); or if he or she is aware that a report or an application to be made. has been submitted (c) referred to in section 7 is 25 the finalisation of an application may. pending person, place the witness or related person concerned for a period not exceeding prescribed safety of such witness or related person: Provided for the protection of a witness or related temporary protection as for the under 14 days, if he or she deems it necessary that- (i) if a report or an application has been made as contemplated in section 7(2)(u), the ivitness or related person may only be placed under temporary protection if he or she has consented thereto; and (ii) no minor shall be placed under temporary protection without the consent of his or her parent or guardian. the Director unless warrant such consent. is of the opinion that exceptional circumstances exist which do not (2) If a witness protection officer places a witness or related person under temporary ( I ), he or she must report such placement in subsection protection within 48 hours to the Director. as contemplated 30 3s 40 Reports by witness protection office1 9. (1) A witness protection officer must consider the merits of an application for protection submitted or referred to him or her in terms of section 7 and must- (N) as soon as possible after the receipt of such application, but not later than 14 (b) days thereafter; or if the person has been placed under temporary protection as contemplated section 8(l), before the expiry of such temporary protection, 45 in report thereon to the Director. (2) A report referred to in subsection (1) must be in writing and must include- (U) a written indication by the interested functionary concerned whether the 50 person concerned is a witness or not; (b) a recommendation whether (c) particulars ((f) any other matter which in the opinion of the witness protection officer should the person concerned qualifies to in section 10(l); and to the factors referred for protection; relating be taken into account. 55 14 No. 19i23 GOVERNMENT GAZE-I-I-E. 27 NOVEMBER 1998 Act No. 112, 1998 WITNESS PROTECTION (3) If a witness protection officer recommends hc or she may make the expected duration of the protection and any particular circumstances recoll~Il~t?l~~lations with regard that a person be placed under to the nature of the that protection. protection. ought to be taken into account in the placement under such protection. (4j If a witness protection officer recommends that an application for protection be 5 refused. he or she must inform the Director of the reasons for such recommendation. Consideration of applicatian for protection 10. ( 1) The Director must in respect of an application to the report and recommendations an application has not been referred 7(4), any written whether take into account- the person concerned recommendations for protection have due regard of the witness protection oficer concerned. or if such to a witness protection officer in terms of section as to functionary should be placed under protection or not and must also the interested concerned by IO 15 is not placed under protection; in which the witness has given evidence or is or to give evidence, as the case may be: relevance and nature of the evidence siven or to be given by 20 the nature and extent of the risk to the safety of the witness or any related person: any danger that the interests of the community might be affected if the witness or any related person the nature of the proceedings ma]l: be required the importance. the witness the probability protection. haviq fanlily or other- relationships the cost likely to bs involved an the protection of the witness or any related person; the availability person without any other factor that the Director deems relevant. that the witness or any related person will be able to adjust to and of any other means of protecting invoking of the witness or related person; the provisions of this Act; and to the personal characteristics, the witness or any related in the proceedings circumstances concerned; regard 2S (2) In order to enable him or her to make a nroper evaluation of an application for 30 protection, and statement of a witness and to any evidence given in any proceedings. is entitled the Director must be afforded nnmed&iate and full access to any police docket and he or she to obtain copies of any such statement or of such evidence or any part thereof. (3) After- having considered an application for protection, (a) the approval or refusal of‘ an application pending (c). make any interim arraqements to his or her protection in terms of this Act; the Director may- in terms of paragraph (0) or 35 with the witness or related person relating (/>I approve the application and thereupon place the witness or any related person into by in accordance with the protection agreement entered under protection or on behalf of the witness or related person and the Director; or 40 (13) refuse the ;tpplication ahd, 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). Protection agreement 11. (1) Subject to subsection (2). the Director must, before he or she places any 45 witness or related person under protection- (cr) enter into a written protection agreement with such witness; and (b) 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 50 his or her placement under protection. (2) The Director shall- (n) enter into a protection agreement with the parent or guardian of- (i) a minor: or (ii) a person who is otherwise not competent agreement; or to enter into a legally binding 55 16 No. 19.523 GOVERNMENT GAZETTE. 27 NOVEMBER 1998 Act No. 112,199s WITNESS PROTECTION (1~) enter into a draft protection agreement with a minor referred to in the proviso to section 12( I ). (3) If the Director has entered into a protection agreement as contemplated in subsection becomes competent person to enter into a new protection agreement. (2). he or she may, as soon as possible after the protected person concerned the protected into a legally binding agreement, to enter require (4) A protection agreement must set out the terms and conditions under which a witness or related person is to be placed under protection, including- (U) an obligation on the Director-- (i) to take such reasonable person with the protection protection agreement concerned; and steps as are necessary to provide and related services, as referred the protected to in the (ii) not to keep a protected person under protection in any prison or police cell, unless otherwise agreed upon; any 20 and (h) an obligation on the witness or the related person- (9 (ii) (iii) (i\r) (4 (vi) (vii) (viii) (ix) to relates; incurred re,sarding the custody and maintenance in the proceedings to give the evidence as required in terms of the protection agreement; incurred by him or her that are not by him or her, including of children that constitute a criminal offence; that might endanger his or her safety or that of where applicable, which the protection to meet all financial obligations payable by the Director to meet all legal obligations obligations taxation obligations; to refrain from activities to refrain from activities any other protected person; to accept and give effect to all reasonable o,iven by any member of the Office in relation ;o him or her and his 01 her obligations; 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: to inform the Director of any proceedings be involved, either as a witness or accused or otherwise; and 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 requests and directions made or to the protection provided to a witness protection programme provided in which he or she was or may any other prescribed (c) cd) a procedure terms and conditions or obligations the protection in accordance with which for in this Act; agreed upon; and agreement may, if necessary, be amended. Protection of minor 12. (1) No minor shall be placed under protection without the consent of his or her parent or guardian: Provided that any minor- (a) who, as a witness, applies for protection in respect of proceedings or her parent or guardian or in urhich his or her parent or guardian against his is a suspect; (b) who has no parent or guardian: (c) whose parent or guardian cannot be identified or found, notwithstanding reasonable efforts to do so: or ‘c unreasonably withholding or is unable I.& (cl) whose parent or guardian to give his or her consent. may be placed under protection without the consent of his or her parent or guardian Director that it is necessary is of the opinion if the 50 to do so for the safety of the said minor. referred to in the proviso to subsection (I >, (2) ((I) If the Director, in the circumstances places a minor under protection, he or she must- (i) within seven days of such placement; or 5 10 15 2s 30 35 40 45 18 No. 19523 GOVERNMENT GAZETTE. 27 NOVEMBER 1998 Act No. 112, 1998 WITNESS PROTECTION ACT. 1998 (ii) within such further period as the Judge President of the High Court within resident. may the minor is domiciled or ordinarily in an application made to him or her in chambers by the Director, whose area of jurisdiction determine submit to the said Judge President-- (W) a report setting out his or her reasons for such placement; and (/lb) the draft protection agreement by a judge referred to in section 1 l(2)(6), in chambers. for consideration (6) The Director must also furnish to the minor concerned and, where applicable, to a copy of the report and the draft protection agreement his or her parent or guardian, (a). referred to in paragraph (3) After consideration subsection (Z)(a), the judge may by order- of the report and draft protection agreement referred to in (u) (6) (c) the placement under protection set aside the placement under protection; confirm protection agreement; or confirm protection agreement (i) (ii) necessary to be in the best interests of the minor; and the safety of the minor. under protection the placement to ensure in the manner which he or she deems- and thereupon ratify the draft and thereupon amend the draft (4) If the placement under protection of a minor is set aside in terms of subsection 20 (3)(n), the Director must forthwith discharge such minor from protection. (5) Any draft protection agreement ratified or amended in terms of subsection (3). shall constitute a binding protection agreement. (6) The Director shall be the curcr~o~* an lifer12 of a minor who, without the consent of a~ has been placed under in section 8( 1) or protection as contemplated in temporary the proviso protection to subsection his or her parent or guardian, contemplated (1 ). Discharge from protection 13. (1) The Director may, subject or upon receipt of a report referred representations person from protection referred to in subsection if he br she is of the opinion that- is no longer threatened; to subsections to in subsection (5) and (8), on his or her own accord of any (5), by written notice discharge any protected (3), and after consideration imposed upon him or her false or misleading is false or misleading the safety of the person satisfactory alternative arrangements have been made for the protection of the person; the person has failed to comply with any obligation by or under this Act or the protection agreement; for placement in making application the witness, furnished which disclose any information the person refuses or fails to enter into a protection agreement when he or she is required the behaviour of the person has endangered or may endanger the safety of any protected person or the integrity of a witness protection programme under this Act; or the person has wilfully caused serious damage or she is protected or to any property _ under protection, wilfully or particulars or made a statement respect. or wilfully to his or her application; information in any material to do so in terms of section 1 l(3); to the place of safety where he or particulars material failed to (2) The Director may, subject to subsections referred to in subsection concerned representations interested concerned or that such proceedings the proceedings notice, discharge such witness and all related persons from protection. that the evidence of a witness functionary in or at such place of safety. (4) and (5) and after consideration of any (5), upon receipt of a written notice given by the in have been concluded, by written is no longer required (3) If a witness protection officer has reasonable grounds to believe or to suspect that- (Q) any of the circumstances for discharge referred to in subsection (l)(u) or fb) exist: or 5 10 15 25 30 3s 4# 45 50 55 20 No. 19523 GOVERNMENT GAZETTE, 27 i%OVEMBE,R 199X Act No. 112, 1998 WITNESS PROTECTION ACT, 1998 (0) a protected person subsection ( l)(c) to (g), is performing or has performed any act referred to in he or she must forthwith report the matter to the Director. (4) The Director may, upon an appliciition by- (a) (6) (c) a protected person; the parent or guardian of a minor; or a minor referred to in the proviso to section 12(l), in terms of subsection take reasonable (u) from protection that the safety of such protected person who is to be discharged opinion conclusion long as it may in his or her opinion be necessary: Provided referred approval of a judge of the proceedings to in the proviso in chambers. concerned. extend threatened is still being (2), if he or she is of the after the the protection of such person for as that the protection of a minor the prior to section 12( l), may not be so extended without (5) The Director must, before he or she discharges a protected person from protection, in the prescribed manner- steps to notify (i) the protected person and. if he or she is a minor, his or her parent or guardian; and the interested (ii) of the contemplated the protected person and, if he or she is a minor, his or her parent or guardian of the contemplated concerned, in terms of subsection functionary discharge in terms of subsection discharge (1); or (2). (b) the protected person, and, where applicable, and must allow guardian, functionary him or her within the prescribed period and in the prescribed manner matter regarding and the interested such discharge. concerned his or her parent or to to an) in relation to make written representations (6) Any protected person remains under protection until he or she is discharged (1) or (2) or in accordance with an agreement from referred in terms of subsection protection to in section 2 1( I)(U) or until- (0) he or she; or (0) (c) the parent or guardian of a minor: or a minor referred to in the proviso to section 12(l), submits a waiver of protection, in the prescribed manner, (7) The Director must, subject to subsection to the Director. (8), upon receipt of a waiver of protection from the protected person (6), without delay discharge referred protection. to in subsection (8) The Director may not discharge- (a) (0) a protected person referred this section without a minor referred to in the proviso this section without to in section 2 1 (l)(a) from protection in terms of the prior approval of the Minister; or to section 12( 1) from protection in terms of the prior approval of a judge in chambers. 40 Review by Minister

14. Any person who feels aggrieved by any decision of or steps taken by the Director or any person actin, 0 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. 45 Civil proceedings in which protected person is a party or witness 15. (1) Any civil proceedings subject regulating to the provisions of subsection such proceedings. in which a protected person is a party or a witness may, (2), be proceeded with in terms of the laws (2) If it appears to a judge of a High Court in an 5 10 15 20 25 30 3.5 Act No. 112. 1998 WITNESS PROTECTION ACT. I998 (n) (h) preventing achieiring the disclosure of the identity or whereabouts of the said person; or the objects of‘ thih Act. (3) Notice of any order made in terms of subsection and to their legal representatives (2) must be given to the parties in accordance with the to the proceedings rules of court. concerned (3) The address of the Ottice for Witness Protection shall for ail purposes of service of process on a protected person, serve as the domicilium citmtdi et execr,tcrrdi 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 Iegal representatives. Access to minor under protection

16. If a judge of a High Court in an P_V pczrte application, made to him or her in that the safety of a minor who is under protection chambers by the Director, 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- is satisfied s i0 IS (CI) preventing achieving (b) the disclosure of the identity or whereabouts of the said minor: or the objects of this Act. Confidentiality and disclosure of information 17. ( 1) The Director and every other member of the Ofiice must. upon taking ottice. 20 take an oath or make an aftirmation take (2) (cr) The Director must in the form specified the oath or make in subsection the atiirmation (3). referred to in subsection ( I) before the Director-General. (b) Any other member of the Office must take the oath or make the afhrmation referred to in subsection (1) before the Director. (3) For the purposes of this section the oath or aftirmation must be in the following form : .’ ‘I. A B. hereby declare under oath/solemnly honour provisions of the Witness Protection Act. 1998. and shall not act in contravention thereof.’ ” affirm that I understand imposed upon me by or under of confidentiality the obligation and shall the _ (4) No person shall disclose any information which he or she has acquired in the or carrying out of the duties to or imposed upon him or her by or under this Act. or in the of this Act. to the provisions of any functions of the functions relating exercise of the powers. performance conferred upon, assigned course of the performance except-- (cr) for the purpose of giving effect to the provisions of this Act: (h) when required (c.) (II) if he or she is authorised in terms of subsection to do so by any competent court; thereto by the Minister: or (5). (5) The Director may. subject to subsection (6), and after consideration of any as he or she deems fit, representations disclose any information referred to in that subsection, on such conditions in respect of a protected person- (CI) with the consent of- or in such disclosure; if he or she is a minor; the protected person concerned; (i) (ii) his or her parent or guardian, if the protected person has previously disclosed such information or acted in a manner which resulted if the disclosure- is required for the exercise or protection of any rights; (i) is required for the compilation (ii) (iii) is in the public in any criminal proceedings or the innocence of a person: that the Director may not disclose in respect of a minor of a voter’s role: or any information if the disclosure interest: or is necessary to establish the guilt (0) (c) (ti) Provided 25 30 35 30 45 SO 5s 2-l No. 19523 C;()\‘ERNMENT GAZETTE. 27 NOVEMBER 1998 Act No. 112. 1998 WITNESS PROTECTION ACT. 1998 referred chambers. to in the proviso to section 12( 1) without the prior approval of a judge in (6) ((I) The Director must, before he or she discloses any information protected person reasonable steps to notify- in the circumstances referred to in subsection in respect of a (5)(b), (c) or (n), take (i) (ii) 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 person representations in relation disclosure and must allow the protected to make written to him or her within the prescribed period and in the prescribed manner to any matter regarding such disclosure. his or her parent or guardian, or. where applicable, (b) The provisions of paragraph (n) do not apply if the Director the the purpose for which jeopardise such notification may disclosed. is of the opinion information that is to be 5 10 (7) The Director must. in determining whether information in respect of a protected 15 person should be disclosed as contemplated in subsection (5), take into account- (n) (b) for the disclosure; the reasons the safety of the protected the probability person concerned or that of any other protected person or the integrity of a witness protection programme under this Act; that the disclosure may endanger (c) whether the need for the disclosure can effectively be met by any other means: to prevent any further disclosure (0) whether there are etfective means available (e) of the information: any other factor that, in the opinion of the Director, account. and should be taken into (8) No person shall disclose any information referred to in subsection (4)- (n) which- h to his o r er knowledge was disclosed (i) came into his or her possession: or (ii) in contravention if he or she ought to have reasonably to him or her in contravention disclosed any other law, no person (b) (9) Notwithstanding of the provisions of that subsection; or to him or her, suspected that such information was of the provisions of that subsection. in respect of whom proceedings are, or to any information, may be. or have been instituted or conducted, or who is a suspect shall have access proceedings which is contained charged with the investigation information to the or statement in. or forms part of, a police docket or is held by any police official to such proceedings, which may disclose any in such proceedings, relating record, document or statement the Director otherwise directs. to in section 18. unless record, document information, concerned. including referred relating any Publication of information concerning protected person

18. Notwithstanding any other law, the presiding officer- (n) at any proceedings or at civil proceedings party or a witness; or in which the protected person is a (b) at proceedings. other than the proceedings to in the definition of “proceedings ” in section 1, instituted or conducted in terms of any law, in which the protected person is a party or a witness and in respect of which he to answer questions or to give or she is in terms of any law compellable evidence or to produce any book, record, document or object in his or her possession or under his or her control in such proceedings, referred must make an order prohibiting including any drawing, picture, through or by in the means of computer software on a screen or a computer print-out as contemplated Films and Publications Act, 1996 (Act No. 65 of 1996), or not, pamphlet, poster or other printed matter, which may disclose- information, painting, photograph, whether produced the publication illustration, of any (i) (ii) the place of safety or location where he or she is or has been under protection or where he or she has been relocated the circumstances to his or her nrotection: in terms of this Act; relating 20 25 30 3s 40 45 50 55 26 No 19527 COVERNMENTGAZEITE.~~ NOVEMBER 1998 ACI No. 112,1998 WITNESS PROTECTION ACT. 1998 (iii) the identity of any other protected person and the place of safety or location where such person the relocation or change of identity of a protected person. the Director satisfies (iv) unless circum- stances. which are in the interest of.ju>trcc. exist why such an order should not be made. the presiding officer concerned is being pr:~tcctcd: or that exceptional Protected person not obliged to disclose certain information

19. Notwithstanding any other law. no protected person- ((7) 04 any book, record. document or object in in any proceedings or in any when giving evidence or producing his or her possession or under his or her control civil proceedings before a court; or if he or she is in terms of any law compellable evidence or to produce any book, possession or under his or her control proceedings instituted or conducted giving such proceedings. the evidence or producing to in the definition referred in any proceedings, of “proceedings” in terms of any law, when answering to answer questions or to give in his or her other than the in section 1, the questions or in that book, record, document or object record, document or object shall be obliged to disclose any information referred to in section 18. Donations, bequests and contributions for witness protection 20. ( I ) The Director m;ty’. with the approval of the Director-General. receii.e any from any source for the donation. purpose of gi\in, 0 effect to the pro\.isions of this Act, and the Director-General must be notified of the receipt of any such donation, bequest or contribution. in money or otherwise, bequest or contribution. (2) The Director must utilise any donations, bequests or contributions contemplated 111 subsection the donor, inconsistent (I) as prescribed and in accordance with the conditions, concerned. in so far as such conditions if any, imposed by are not testator or contributor \vith the provisions of this Act. 5 10 15 20 25 Agreements countries with in ternational bodies, institutions, organisations or foreign 21. (1) The Minister may enter into an agreement, terms and conditions. m.ith my country in order to- international body, either institution, in gzncral or on specific or foreign organisation 30 (O) place a person who is being protected under a witness protection programme under institution, or country. organisation that body. in terms of this Act; or by administered protection admit a protected person law applicable that no person the consent of the Minister. (0) Provided without to a witness protection programme in terms of any to that body. institution referred to in paragraph or organisation (a) shall be placed under protection or in that country: (2) For the purpose of giving effect to the provisions of subsection in relation to a person shall, subsection exercise, perform or carry out any power, function and duty conferred upon, assigned or imposed upon such Minister by or under any law. in respect of whom an agreement into and upon a recommendation (1) has been entered as contemplated (l), any Minister in by the Minister, to Offences and penalties 22. (1) Any person who- (a) wilfully or negligently protected person; (h) wilfully or negligently allows any unauthorised person to gain access to any discloses, in contravention of any provision of this Act- (i) (ii) (iii) (iv) that a particular protected person the identity of any protected person; information the place of safety or location where any person is under protection or has been relocated in terms of this Act: any information which could lead to the identtfication or any such place of safety; is under protection; of any such person 35 40 45 50 55 28 No. 19523 GOVERNMENT GAZETTE. 27 NOVEMBER 1998 Act No. 112. 1998 WITNESS PROTECTION ACT. I998 (v) (vi) any information which undermines or compromises or compromise of this Act; or any information protected person; or to the relocation relating the integrity of a witness protection programme or could undermine in terms or change of identity of a (c.) wilfully or negligently or who discloses the Director in terms of section 17(5), contravenes any provision of section 17(4), (8) or (9), of any condition determined by in contravention information shall be guilty of an offence and on conviction be liable to a fine or to imprisonment a period not exceeding 30 years. for (2) (0) Any person who- (i) wilfully contravenes (ii) wilfully any provision of section lO(2); interferes with, or hinders or obstructs the Director or any other member of the Office in the exercise, performance or carrying out of any of his or her powers, functions and duties contemplated in this Act; or 5 10 1s (iii) with intent to gain for himself or herself or for any other person protection terms of this Act, makes any false statement or furnishes or she knows to be untrue or misleading, information shall be guilty of an offence and on conviction be liable to a fine or to imprisonment a period not exceeding five years. for 20 (6) Upon the conviction of any person for an offence referred to in paragraph (n)(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 No. 51 of 1977). in that he Regulations 23. (1) The Minister may make regulations relating to- for protection or organisation in terms of this Act; in terms of this Act; that must be included to be rendered or functions for placement under protection to be performed by any Department for the purpose of giving to be furnished by, or any steps to be taken in respect of, a is the placing of witnesses or related persons under protection; the protection of the identity of protected persons; the regulation of access to places of safety where persons are being kept or relocated the utilisation of security officers or private security personnel services the assistance of State, person, body, institution effect to the provisions of this Act; the information witness or related person whose application being considered; the terms and conditions other agreements or arrangements the procedure any decision of or steps the manner taken by the Director or any person acting on behalf of the Director under a provision of this Act, may be subjected the powers, officers; mechanisms which a person specific offences Schedule protection; any other matter that is required or permitted Act; and in general, any matter which prescribe the Minister deems necessary or expedient the objects of this Act. functions and duties of witness protection officers and security for the relocation or change of identity of a protected person; is kept under protection; in respect of which, in which and the conditions whereunder to be put in place in order to monitor in protection agreements or in into or made under this Act; to review by the Minister; in order to achieve the circumstances to be prescribed in terms of this to the offences listed in the in addition entered under to to this Act, a witness or related person may be placed under SO 2s 30 .35 30 45 55 (2) Different regulations may be related persons. or made in respect of di categories of witnesses 30 No. 19523 GOVERNMENT GAZETTE. 27 NOVEMBER 1998 Act No. 112. 1998 WI-l-NESS PROTECTION ACT. 1998 (3) Any regulation made under subsection (I) must, before publication thereof in the Gazerre, be submitted to Parliament. (4) Any regulation made under subsection a provision contravenes and on conviction be liable to a fine or to imprisonment years. thereof or fails to comply (1) may provide that any person who therewith shall be guilty of an offence three for a period not exceeding 5 (5) Any expenditure regulation made under for the State must be made in consultation with the Minister of Finance. (lj which may subsection in financial result Repeal of section 185A of Act 51 of 1977, as inserted by section 4 of Act 135 of 1991 24. (1) Section 185A of the Criminal Procedure Act, 1977 (Act No. 5 1 of 1977), is 10 hereby repealed. (2) Notwithstanding the repeal of section 185A of the Criminal Procedure Act, 1977- (a) (b) (c) before the commencement in such detention or placement in or who has been placed under protective of this immediately and shall be deemed to have any person who is detained custody under the said section Act, shall remain been placed under protection any written in of this Act, prior paragraph shall, except in so far as it is inconsistent with this Act, remain valid until that person and the Director have entered in terms of this Act; and (i) any regulation made under in terms of this Act; into between into a protection agreement (a) and the Department to the commencement the person agreement referred entered the said section and in force immediately of this Act; and prior to the commencement permis- any rule, notice, order, sion, consent, exemption, issued, given or granted and any other steps taken in terms of any such regulation prior to the commencement certificate or document promulgated, authorisation, of this Act, prohibition, instruction, to (ii) 15 20 25 shall remain replaced by or in terms of a regulation made under section 23. in force, except in so far as it is inconsistent with this Act, until 30 Insertion of section 191A into Act 51 of 1977

25. The following section is hereby inserted into the Criminal Procedure Act, 1977: “Witness services 191A. provided (1) The Minister to a witness who is required has (2) The Minister may make regulations the power to determine to give evidence relating to- to, witnesses at courts; (a) (6) (c) (d) the assistance of, and support the establishment the counselling any other matter which the Minister deems expedient order to provide services to witnesses at courts. of reception centres of witnesses; and for witnesses at courts; services to be in any court of law. 35 to prescribe in 40 (3) Any regulation made under this section which may result in financial for the State must be made in consultation with the Minister of expenditure Finance. (4) Any regulation made under this section may provide who contravenes guilty of an offence and on conviction be liable to a fine or to imprisonment for a period not exceeding thereof or fails to comply three years. a provision that any person therewith shall be 45 (5) Any regulation made under thereof in the Gazerte, be submitted this section must, before publication to Parliament.“. 50 Short title and commencement

26. 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. 32 No. 19523 GOVERNMENT GAZE-I-J-E, 27 NOVEMBER 1998 Act No. 112, 1998 WITNESS PROTECTJON ACT. 1998 SCHEDULE (Offences in respect of which a witness or related person may be placed under protection) 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. or (6) that- in or officer. is more involving syndicate substance substance in question in question the infliction circumstances; the execution the ends of justice. the taking of a motor vehicle. Treason. Sedition. Murder. Rape. Public violence. Robbery- (a) when there are aggravating (b) Kidnapping. Defeating Perjury. Indecent assault on a child under the age of 16 years, involving of grievous bodily harm. Any offence referred to in section 13(j9 of the Drugs and Drug Trafficking Act, 1992 (Act No. 140 of 1992), if it is alleged the value of the dependence-producing (a) than R 10 000.00; or the value of the dependence-producing is more than R5 000,OO and that the offence was committed by a person, group of persons, or acting furtherance of a common purpose or conspiracy; the offence was committed by any law enforcement (c) Any offence referred to in section 1 or IA of the Intimidation Act, 1982 (Act No. 72 of 1982). Any offence relating the dealing (a) armament; or the possession of an automatic or semi-automatic armament. Any offence relating uttering or theft- involving (a) involving that the (b) 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 if it is alleged officer- (i) (ii) amounts of more than R50 000,OO; or amounts of more that the offence was committed by any law enforcement to exchange control, corruption, extortion, amounts of more than R 10 000,OO; or than RlO OOO,OO, if it is alleged syndicate or any enterprise firearm, explosives or firearms, explosives or any enterprise in or smuggling in the execution involving as a member of a group of persons, acting conspiracy. Any offence referred Any conspiracy, this Schedule. Any other offence which the Minister has determined by regulation. Any other offence committed by- (a) incitement or attempt in respect of which acting a person, group of persons, execution or furtherance of a common purpose or conspiracy; or a law enforcement officer, or any enterprise to in the Prevention of Organised Crime Act, 1998. to commit any offence referred of a common purpose or that the offence was of ammunition, fraud, forgery, or furtherance it is alleged syndicate in the to in (b) (c) to- or (6) and in respect of which the Director witness who is or may be required evidence person, warrants protection. in respect of such an offence is of the opinion to give evidence, in any proceedings that the safety of a or who has given or any related 34 No. 19523 GOVERNMENT GAZETTE, 27 NOVEMBER 1998 Act No. 112, 1998 WITNESS PROTECTION ACT. 1998

19. Any other offence in respect of which the Director, after having considered in section factors mentioned section 10(2), is of the opinion required offence to give evidence, or who has given evidence in any proceedings or any related person, warrants protection. lO( I ) and any information the in terms of that the safety of a witness who is dr may be in respect of such an gained