Witness Protection1

In a trial, it may be that some witnesses do not give evidence of their own free will. They are under subpoena,2 which means that they have to appear at the trial and answer questions put to them by the legal representatives of both parties – or those for the prosecution and the accused, in the case of a criminal trial.

When someone knows something particularly crucial – usually about the accused person or the deed he did – he is an important witness. And that means he becomes important for both sides, for the opposite reasons. Sometimes, the person on trial – or people he represents – comes from a world where corruption, intimidation, murder and execution are normal. Institutions of organised crime like the Mafia come to mind.

So when someone like this could be an important witness, their life – and that of their family members, and others – might be in danger. And that is when they need to be protected.

The point about ‘witness protection’ is to preserve important evidence for the up and coming trial, and – more importantly – to protect that person in return for his giving that evidence. It usually means the person taking a new identity, address, employment, and so on – as well as possibly having bodyguards. This can be for the duration of the trial – or for his entire life.

This is what the Witness Protection Act 1998 is all about. It falls under the authority of the Minister of Justice, but is effectively administered by the Director-General of Justice in cooperation with the Director of Public Prosecutions.

You do not have to wait for a witness protection programme to be implemented – if you have reason to believe that your safety, or that of any related person, may be threatened by reason of being a witness, you can apply3 to be placed under protection. In the period 2004–2009, a total of 2 343 witnesses and their families were given witness protection. Not a single person was harmed.4

  1. Any person who allows (whether intentionally or negligently) any unauthorised person to gain access to any protected person is guilty of an offence.5

  2. It is a crime to disclose:6
    • the identity, change of identity, or relocation of any protected person;
    • that a particular person is under protection;
    • the place of safety or location where any person is under protection;
    • any information which could lead to the identification of any such person or any such place of safety.
  3. It is an offence to disclose any information which could undermine or compromise the integrity of a witness protection programme.7

  4. It is an offence to disclose any information which was acquired in the exercise of functions or the performance of duties in terms of the Act.8

  5. In fact, if you are told information by somebody, which he acquired, or you should reasonably have suspected that he acquired, in the exercise of his functions or performance of duties under the Act, you yourself commit a crime if you disclose that information.9

  6. Any person who 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 powers, functions and duties in terms of the Act commits an offence.10

  7. Any person who, with intent to gain (for himself or for any other person) protection in terms of the Act, makes any false statement or furnishes information that he knows to be untrue or misleading commits an offence.11

  8. The Director may disclose information in respect of a protected person on such conditions as he deems fit, and it is an offence to disclose information in contravention of any such condition.12

  9. An accused person or suspect in a matter is not allowed access to information relating to a protected person, and it is an offence for them to have such access.13
  1. See s.v. ‘South African Office For Witness Protection’ for a presentation by Dr Carlos Adamus, National Director (2013) of the OWP on this programme. 

  2. Pronounced ‘subpeena’. 

  3. According to the Act (section 7(1)b) you must apply in the ‘prescribed manner’. No such application form has been prescribed, so the thing to do is contact the Head Office of the Witness Protection Unit which is in Pretoria (tel: 012 845 6000). 

  4. s.v. ‘Subprogramme 2:Witness Protection’. 

  5. Section 22(1)(a). 

  6. Section 22(1)(b)(i–(iv) and (vi). 

  7. Section 22(1)(b)(v). 

  8. Section 17(4). 

  9. Section 17(8). 

  10. Section 22(1)(ii). 

  11. Section 22(a)(iii). 

  12. Section 22(1)(c) read with section 17(5). 

  13. Section 22(1)(c) read with section 17(a).