National Policy Framework: Sexual Offences: Departmental briefing

Meeting report

National Policy Framework: Sexual Offences, in terms of Section 62 of the Criminal Law (Sexual Offences) Amendment Act, 32 of 2007: Department of Justice and Constitutional Development briefing
Advocate Praise Kambula, Chief Director: Promotion of Rights of Vulnerable Groups, Department of Justice and Constitutional Development, noted that the Department (DOJ&CD or the Department) would be presenting on the National Policy Framework (NPF) on Sexual Offences, to guide the process of implementation of the Criminal Law (Sexual Offences) Amendment Act (the Act). Various role players who must implement the Act had contributed to the compilation of the NPF. Non-governmental Organisations (NGOs) who were experts in the area of sexual violence were also involved at the drafting stage.

Adv Kambula noted that the NPF was divided into three sections. Section A dealt with the overview and legislative prescripts, and also highlighted the roles and responsibilities of the departments that were tasked with the implementation of the Sexual Offences Act. The Departments that participated as role-players in the implementation of the legislation were the Department of Justice and Constitutional Development (DOJ&CD), South African Police Service (SAPS),  Department of Health (DoH),  National Prosecuting Authority (NPA),  Department of Social Development (DSD) and Department of Correctional Services (DCS).

The NPF highlighted the principles that were a guide to the implementation process. Principle 1 was the adoption of the therapeutic approach to sexual offences. The aim was to ensure that all role-players provided for a therapeutic approach at every service delivery point, as victims would be suffering from trauma and other related forms of suffering that were bound up with sexual offences. Principle 2 related to the provision of specialised services to victims of sexual offences. This principle was based on the need to understand that these types of victims were different because of their experiences and they would require special care. Principle 3 outlined equal access to services and equitable provision of services. This was drawn from past challenges, where some victims that were based in rural communities did not have the same access to available services as urban victims. Principle 4 set out the adoption of a multi-disciplinary and intersectoral response to sexual offences. Principle 4 was essentially endorsed by the NPF. The Governance Framework basically comprised the three components, which were Coordination, Service Delivery and Resources. The three components talked to the implementation process. The Governance Framework ensured that departments operated as a unit, with shared accountability and information.

Coordination began at the Executive level all the way down to implementation, and would require collective input to ensure the successful implementation and carrying out of the objectives of the Act. The component on service delivery highlighted the specific roles of all the implementing departments. It also imposed the obligations of prevention and support. The obligation of prevention was primarily related to educating the public, and on the systemic responses of the departments in preventing acts of sexual violence. The correct implementation of the Act would require sufficient allocation of resources, both financial and human, as well as infrastructure.  Monitoring involved the collection of data to enable the assessment of internal efforts on actual performance against what was planned and expected,  tracking of progress made in the implementation of the Act,  ensuring compliance with obligations set out in the Act and the NPF, as well enabling early identification of challenges and the development of interventions that responded to these challenges.

Section C focused on implementation and provided guidance on the coordinated implementation, enforcement and administration of the Act. It also served as a monitoring and evaluation tool. Section C had three Annexures, which were Governance Structure; Interdepartmental plans and Monitoring and Evaluation Tools.

Discussion 
Mr S Swart (ACDP) asked for the reasons for the lengthy delay in presenting this document, which should have been given to the Committee in 2009. He asked how the Committee was to assess the progressive realisation concept with the goals provided for in the document. He also queried the extent of the interactions with the NGOs.

Professor G Ndabandaba (ANC) said that he was impressed with the presentation and the fact that there was provision made for therapy of victims. However, he wanted to know how frequently this therapy would be offered, and how it would be coordinated amongst various specialists such as. psychologists, doctors and others.

Ms S Sithole (ANC) commended the presenters for an excellent presentation, as well as the undertakings on the fulfilment of the legislation. The outcomes-based approach was commendable, as well as the intention to provide equitable services to both urban and rural victims.

Ms Kamogelo Lekubu-Wilderson, Director: Victim Support and Specialized Court Services, Department of Justice and Constitutional Development, said that the DOJ&CD was aware that the NPF was submitted late. One of the reasons was that this was the first time that legislation had made it obligatory for departments to work together. The NPF document underwent major transformations. The first draft was considered too historical, while the second was presented to a number of new Director Generals (DG) from the stakeholder departments, who subsequently requested further changes. The consultation process itself took longer than expected, resulting in further delays. The Department apologised profusely for the delay.

Mr Swart interrupted, noting, for the record, that when this Act was passed in 2007, DOJ&CD was given one year to table the NPF before Parliament. The Act was later amended to extend the period for fulfilment of this requirement for March 2009. This was now a full four years after the Act had been passed.

Ms Lekubu-Wilderson said that she accepted the point being raised by Mr Swart. The initial stages of the development of a relationship with the NGOs involved a working group that had to kick-start the engagement. Relations slowed down when the departments had to consider the formulation of the NPF. Once the NPF was finalised the Chairperson of the Inter-Sectoral Committee (ISC) was confident that the Department of Justice could go back to the NGOs with a finalised NPF. The NGOs said, during a workshop, that they did not have enough time to engage with the NPF.

Adv Kambula said that the Foundational Framework gave support to the three pillars, which were Coordination, Resources and Service Delivery. The Foundational Framework also provided for the evaluation and monitoring. There was an inter-departmental plan that was collectively developed by all the stakeholders, which was based on the different roles and responsibilities set out in the Act. The inter-departmental plan had a monitoring and evaluation tool that prescribed how the measuring should be done. The monitoring and evaluation tool set the outcome for those activities, so that whilst the implementation process was ongoing, it was monitored by the outcomes. The therapeutic approach was being delivered at all service delivery points. The therapeutic approach provided that all the services given to victims had to be done with the idea of healing at the forefront. The number of trained officials was no longer a focus point, but the impact of the training on victims was now the main focal area.

Ms D Schäfer (DA) asked if there were plans by the ISC on the statistics of sexual offences.

Ms Lekubu-Wilderson said that the ISC was very concerned about statistics and the turnaround time of the management of cases. Currently, different departments were colleting statistics. 

Adv P Holomisa (ANC) asked why the NPF did not mention the role of traditional leaders. 

Adv Kambula agreed with the point raised by Adv Holomisa, and said this was a gap that had to be addressed.  The omission of traditional leaders from the NPF may have been caused by the fact that the Act itself did not mention the role of traditional leaders.

Adv Holomisa commented that this was a denial of justice to the millions of people who lived in the rural areas.  This was also an indictment on Parliament.

Ms Sithole agreed.

Adv Kambula said that the Department had, in practice, already begun to engage with traditional leaders on sexual violence. A programme that included traditional leaders was being currently drafted and formalised.

The Chairperson referred to the third bullet point under Annexure C of the NPF, which created the obligation around the implementing documents. The Act provided for the creation of a Register. The Committee had been informed that SAPS had not completed the Register. It was alleged that there were records in the hands of SAPS so it should not be difficult for them to start compiling the Register.

Ms Ntomizodwa Chiloane, Director: National Register for Sex Offenders, DOJ&CD, said that the Department of Justice had implemented Phase 1, which dealt with convictions backdated to June 2009. The challenge with the historical convictions alluded to by the Chairperson was that the automated fingerprint system required a budget of R200 million. The Department had submitted a request for funding to National Treasury. SAPS was facing the challenge of “cleaning up” the records, but work had begun on the Register.  DOJ&CD had begun with a manual Register. She emphasised that the funding was required for the electronic register. DCS had also extracted information and submitted it to SAPS.

Ms D Smuts (DA) asked which details were being extracted.

Ms Chiloane replied that the records being extracted would allow the Register to be used to confirm that a particular person had, or had not been, convicted of a sexual offence committed against a minor or a mentally disabled person.

Mr Swart asked how much work had been done on the Register.

Ms Chiloane said that the Register was up and running, but as yet the clearance certificates could not be issued. There were 1 485 registered persons, dating back to June 2009.

Mr Swart said that this was not satisfactory. The Act specified that there had to be annual reports submitted by all implementing Departments, and this has not been done. The figure of 1 485 was miniscule.

Ms Chiloane said that there was a consolidated progress report, which contained the reports submitted by the implementing departments, covering a three-year period. The Minister of Justice would table this consolidated report soon.

Adv Kambula said that there had been a delay in the submission of the reports, and it was to address this deficiency that a consolidated report had been compiled. However, there were delays, as there were gaps in some of the reports and DOJ&CD was awaiting the specific responses.

Mr Swart asked for a report on the progress on the application of the funding.

Ms Chiloane replied that National Treasury had been approached via the donor-funding unit within the Department of Justice. National Treasury would then approach the United Nations for the funds.

The Chairperson said that this left Members feeling unhappy and frustrated. Government, as it stood now, could not even inform employers, at institutions set up for mentally disabled people and children, whether applicants for positions had been convicted of offences or not.

Prof Ndabandaba asked how long the implementation would take.

Ms Chiloane replied that if the funding was received today it would take between 18 and 24 months to implement the requirements fully.

Ms Smuts suggested that the Minister should appear before the Committee, as he was politically accountable.

The Chairperson asked who drew up the Register.

Ms Chiloane said that she was the Registrar, but the Ministry of Justice maintained it, in line with the Act.

Mr Swart asked how much funding was available over all for the implementation of the Act.

Ms Lekubu-Wilderson said that from the time the Act was implemented, the implementing departments put together a cluster bid. The funds were then channeled to the specific departments. One of the outstanding issues on the part of the Department of Health was naming the centres where Post-Exposure Prophylaxis (PEP) was available. DoH had said that there were more than 100 sites, but these still had to be gazetted.

Mr Swart asked what “gazetted” meant, and said that this was precisely why there was provision for the tabling of annual reports, as this would have enabled the Committee to pick up that this had not been done, in line with its oversight role.

 The Chairperson said that he was beginning to understand the concerns of the NGOs. He thought that maybe too much was expected of the departments when the Act was passed.

Ms Smuts said that there seemed to be a lack of drive, and there was a sense that nobody was directing this matter.

The Chairperson asked who should drive it.

Ms Smuts responded that this should be up to the political heads.

Dr M Oriani-Ambrosini (IFP) said that there was a broader picture. There could be a policy decision to establish centres for victims of crime. Similar types of trauma were suffered by those who were raped, stabbed or assaulted in another way.

The Chairperson said that he disagreed that rape and stabbing caused similar trauma levels. Ms Smuts had proposed that the Committee engage with the Minister of Justice.

Ms Smuts suggested that the engagement should first take place with the Minister of Justice, and then the Committee could decide whether it also wished to engage with other ministers.

Mr Swart asked when the Committee could receive the “soon-to-be-tabled” consolidated annual report.

Adv S Giyane, Deputy Director-General, DOJ&CD, said that once it was tabled before Parliament, processes would flow from there.

Mr Swart said that once that happened, it would be published in the Government Gazette and the Committee could then receive copies.

The Chairperson said that the Committee should follow up on the annual reports. He asked when it could expect this report.

Adv Giyane said that it could be sent before the end of July.

Ms Schäfer requested that the report should be error-free, commenting that the Committee did not want to deal with yet another document that was full of mistakes.

The Chairperson confirmed that in the early part of the next Parliamentary term, the Committee should receive the report and would then engage with the Minister of Justice.

Tshwaranang Legal Advocacy Centre (TLAC) briefing
Ms Lisa Vetten, Director, Tshwaranang Legal Advocacy Centre, said that the Tshwaranang Legal Advocacy Centre (TLAC) had drawn up a shadow report, looking at all the departments that were responsible for the implementation of the Act. There had been interaction with the departments, even if some issues had not been picked up. This report was compiled using government reports, individual departments’ annual reports, reports from the Parliamentary Monitoring Group and Ministers’ replies to Parliamentary questions. Budget votes from the last three years were reviewed.  Where information could not be obtained, the Centre made applications through the Promotion of Access to Information Act (PAIA).

The Sexual Offences Act contained a requirement for clerks to be trained by the Department of Justice. TLAC referred to the NPA, who said that it did not train clerks.  The Act required that training reports be submitted to Parliament, as well as information on the types of courses. SAPS had not done so, but it had trained 2 491 officers in the client service center. This was a low figure. Most of the detectives had been trained. However, training overall was of concern.

The Department of Health had not submitted training reports or details of courses. PAIA applications were sent to the National Department, who did not respond, and three provinces had responded to the approaches. However,  Gauteng was the only province that appeared to be conducting training, and Free State started training last year. Western Cape had conducted one set of training, and that only in the previous year. Gauteng and Free State curricula were different from each other.

The NPA noted that it had been doing some training, as highlighted in its annual reports. The DOJ&CD did gazette its Regulations on time, relating to PEP and HIV testing. The NPA was more than a year late in terms of gazetting its Directives. The Department of Health gazetted its directives and lists of PEP facilities late.  SAPS was obliged, under the Act, to give out notices as to where PEP could be obtained, but since the venues had not been gazetted, SAPS would just issue general notices, which cited hospitals such as Johannesburg General Hospital, where there were no PEP services. It was difficult to get any sense of any budgets being allocated towards the Act. A lot of the NPA’s budget went to the Thuthuzela Care Centres (TCC). There was no reference to the Sexual Offences Act in the SAPS budget vote. The DOJ&CD made reference to the Act in its budget vote. The National Register for the Act was a duplication of the Register for the Children’s Act. Ms Vetten suggested that the Committee might want to think of having a consolidated Register.

Ms Vetten addressed the earlier comment by Dr Oriani-Ambrosini: the University of Cape Town, in conjunction with Johns Hopkins University, had found that the crime that caused the greatest trauma in South Africa was rape. Men only suffered comparable levels of trauma if they had undergone torture. Trauma counseling was very important, and funds had to be made available for this.

Ms Vetten then commented that if the Committee was considering the inclusion of traditional leaders into the ISC, then NGOs also had to be involved.  The reinstatement of the SAPS’s Family Violence and Child Protection Services Unit was welcomed. The DSD had a minimal role in the Sexual Offences Act and this had to be strengthened. The Department of Education was not even mentioned and this also needed to change, as there was a considerable amount of sexual abuse happening at schools, and teachers were also the first port of call when abuse happened at home.

The SAPS statistics indicated that there were 10 000 more women then children who were the victims of sexual offences every year, and TCC dealt with more women, yet the question was whether women were getting specialised services or being diverted to ordinary services. This was an issue that had to be considered further. Magistrates complained that they did not want to hear these types of cases all day, and there was a rollback of the Specialised Sexual Offences Courts to facilitate better case management. However, this effectively had prioritized the concerns of magistrates and case management over the needs of victims. The number of Sexual Offences Courts had dropped to about 40, and this also had to be re-considered. The use of the alternative dispute resolution system in rape cases had to be examined, especially seeing that 45% of these cases emanated from a court in Mpumalanga. Broader hearings were required on the implementation of the Sexual Offences Act. At the moment, the implementation would not pass any tests for progressive realisation.

 Discussion
Ms Smuts asked for more information on the TCCs.

Prof Ndabandaba asked what could be done to encourage more reporting of sexual offences, as there were numerous cases that went unreported.

Dr Oriani-Ambrosini said that sexual offences in this country were widespread, and this was because of entrenched habits emanating from a culture of violence. He urged that there must be more education around the subject.

Ms Schäfer asked how effective the Family Violence and Child Protection Services Unit were. She wondered if it was not more important to have specialised prosecutors, rather than concentrating on magistrates.

The Chairperson commented that magistrates probably did not like to deal with too many sexual offences cases because they were upsetting.

Ms Vetten replied that her concern around the TCC issue was that women suffered just as much as children did when it came to rape, and yet it seemed that their needs were being accorded less weight.  It was not the core function of the Department of Justice or SAPS to be preventing rape. They had to uphold the rule of law, deter and detect crimes. Recently, there was a survey in Gauteng that indicated that 1 in 25 women had reported being raped. In light of this it would be necessary to ask the Justice, Crime Prevention and Security Cluster (JCPS) why it had set a target for SAPS to reduce sexual offences by 4% to 7%. There was a massive amount of under-reporting. SAPS had planned to have 2 100 Family Violence and Child Protection Services Unit detectives, which was more than it had had previously, but the main difficulty arose through their inexperience.

Adv Holomisa asked when it had been necessary for applications under PAIA to be used, and to get the names of the departments.

Adv Holomisa noted the request that NGOs should be part of the ISC, and asked about the position of traditional leaders.

Ms Vetten replied that there was a strong request from the NGOs, when the legislation was being drafted, to be included in the ISC, but this was rejected. This was a suggestion that had been in the pipeline for some time.

Ms Vetten responded that it was necessary for the Centre to make PAIA applications to the Department of Justice, NPA, SAPS, Department of Health and DSD. SAPS and NPA complied, the Department of Justice charged TLAC R30 for sending a letter requesting that the matter should be referred to the NPA, the Department of Health did not respond, and DSD only responded that it would be in a public report that they did not provide the information (but this Department did duly courier the information through the following morning).

The Chairperson thanked Ms Vetten and said that the Committee would definitely keep in touch regarding these issues

Rape Crisis Cape Town Trust Findings from the Shukumisa Campaign conducted during the 16 Days of Activism 2010
Ms Kathleen Dey, Director, Rape Crisis Cape Town Trust said that The National Working Group on Sexual Offences was a network of 26 South African civil society organisations formed in 2003 to ensure that effective and appropriate laws around sexual offences were passed. The purpose of the group’s “Shukumisa” Campaign was to monitor the implementation of laws and policies relevant to sexual offences, and hold service providers to account for ineffective implementation. The monitoring was mainly around whether infrastructure was being set up. The Trust had done the monitoring in four provinces, namely, Gauteng, Western Cape, Limpopo and Kwazulu-Natal (KZN). The convenience sample had been used on 70 police stations, 11 hospitals and 31 courts.  In respect of SAPS, there were 70 stations monitored in total, as Gauteng had 21, Western Cape had 27, Limpopo had 16 and KZN had 6.

There was an 11% refusal rate, which meant some of the stations could only be observed. According to the National Instruction No 3/2008, there were a number of documents that should be readily available at all SAPS stations, including the Sexual Offences Act, the National Instructions 3/2008, stations’ orders around sexual offences, regulations and forms related to the Sexual Offences Act (forms for the HIV testing of the rape accused and information sheets for rape survivors about PEP and HIV testing), information about hospitals providing PEP to rape survivors and a list of organisations providing services to rape survivors. Only 32% of stations could produce all of the documentation. 57% of stations had a copy of the Sexual Offence Act. 51% had copies of the Regulations and forms related to the Sexual Offences Act.  56% had a copy of the National Instructions 3/2008. 49% were able to produce the station orders around sexual offences. 54% had a list of organisations providing services to rape survivors. 61% had a list of hospitals providing PEP to rape survivors.

11 of the 27 Courts monitored were specialist Sexual Offences Courts and on average only two specialist sexual offences prosecutors were based at these courts. 19 Courts had access to Intermediary services. On the specialist services that were available, it was found that 61% of courts had witness waiting rooms, 78% of courts had CCTV facilities, 48% of courts had a room for NGO use, and 59% courts had court preparation officers. The courts tended to cater more for children than adults.

The Health Services statistics indicated that 10 hospitals provided PEP to survivors (the others referred survivors on to another facility), that all had access to psychosocial support and referral networks, and three Western Cape facilities conducted compulsory testing of the perpetrator. The health facilities that were monitored appeared to be providing both the healthcare and psychosocial support that a rape victim required. Three facilities provided PEP to victims as well as HIV testing of alleged rapists, which meant that a victim could potentially be present at the same hospital as the perpetrator. There were five gaps where potential legislative reform was possible.

Ms Dey then outlined that there was a lack of information about the criminal justice system and victims’ rights, lack of information about the victim of crime’s specific case, and lack of psychosocial support for victims of crime. There was also a lack of accountability within the system, and a lack of intersectoral collaboration, resulting in lack of coordination between services.

Discussion
Adv Holomisa asked if the stations and other facilities where gaps were spotted had given undertakings that they would make corrections.

Ms Dey replied that the findings would be presented to the facilities where research was conducted, with recommendations.

The meeting was adjourned.