Judicial Matters Amendment Bill [B11-2012] & Sheriff's Amendment Bill [B2–2012]: deliberations; Sexual Offences Act proposed amendments

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Justice and Correctional Services

21 May 2012
Chairperson: Mr L Landers (ANC)
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Meeting Summary

The Department of Justice reported back to the Committee that discussions had been held with National Treasury on the Judicial Matters Amendment Bill, and National Treasury had agreed to clause 4, which would provide a mechanism for the Special Investigating Unit (SIU) to charge certain entities for the investigations that it undertook. In answer to Members’ concerns, the SIU noted that not every entity would be charged for investigations, and a process would be put in place for National or Provincial Treasury, as appropriate, to assess whether an entity could afford to pay. SIU had also considered whether this might not affect future allocations to the SIU from the fiscus, confirmed that it might, but it was necessary to get statutory authorisation to charge a fee. Members agreed that it would be useful to cross reference the definition of “treasury” from the Public Finance Management Act, for greater clarity. The National Prosecuting Authority, who had raised concerns on clause 10, had not reverted to the Committee on the outcome of discussions with the Minister. The Committee had initially suggested that it was possible to excise clause 10 from the Bill, but noted now that clause 10 was also quite urgent, and the Committee had been urged by the Asset Forfeiture Unit to deal with the retention of former Directorate of Special Operations investigators and special skills. Members noted that the concerns of the National Prosecuting Authority and Asset Forfeiture Unit should be balanced. It was decided that the Chairperson would ask the Acting National Director of Public Prosecutions to discuss the issues with the Minister and Asset Forfeiture Unit, and provide a response by the following week, as the Committee wanted to finalise the Bill on 29 May.

The Committee deliberated on the Sheriffs Amendment Bill, noting that the Board for Sheriffs, after further debate, agreed with the wording requiring approval of the Minister in relation to amounts to be charged for the Fidelity Fund. The Department of Justice and Constitutional Development confirmed that the Advisory Committee was already in existence, was governed by regulation, and that allowances were budgeted and paid by that Department. Members felt that this needed to be addressed in the legislation, to avoid doubt in future. They decided that it would be unnecessary to provide a maximum number of members since this was, in practice, dictated by financial constraints and the need to be representative. Members debated the wording of clause 7(2)(a), referring to “associations which, in the opinion of the Minister, represent the Sheriffs profession”, but heard that this was deliberately left broad as the associations tended to change composition. The drafters were asked to prepare the necessary amendments for debate and possibly adoption on the following day.

The Department of Justice and the Deputy Director of Public Prosecutions, Western Cape, briefed the Committee on the implications of the recent ruling in the Prins matter, which had declared that certain sections of the Sexual Offences Act did not amount to offences. The judicial officers’ interpretation of the  principle of legality was based on a particular academic text, but conflicted with rulings in other provincial divisions. The judgment had wide-ranging implications on a number of pending and part-heard matters. Leave to appeal the decision to the Supreme Court of Appeal, with the Minister being joined, would be sought on 24 May. In the meantime, part-heard and pending cases relating to these sections of the Act would be postponed in the Western Cape. Where an accused had not yet pleaded, the matters would be provisionally withdrawn, pending the outcome of the appeal. A directive had been issued to Senior Public Prosecutors, and meetings had been arranged with South African Police Service (SAPS) commanders for the following day. SAPS would be advised of the matters in which arrests should not be made, although dockets could be opened and referred to Senior Public Prosecutors, who would decide whether alternative common law or statutory charges could be substituted. Counsel had also advised that legislative amendments should also be sought, as this would not affect the appeal.

Members referred to media reports and stressed that it was important to make the public and SAPS aware that the matter was being addressed, and that “no arrests” did not mean “no crime”. It was important to note that some offences did have penalties provided, either under the Sexual Offences or other legislation. SAPS should be aware that wrongful arrests could lead to civil action. Members noted that any amendments would not have retrospective effect and, for the purposes of the amendment, it was not necessary to look at why this legislation was passed in this form, but simply to rectify the situation. A DA Member raised a particular concern that this objection had been raised previously, by the same advocate who acted for Mr Prins, in 2010, and the matter was simply withdrawn by the National Prosecuting Authority (NPA). The possible loophole was not at that time conveyed to the Committee.

Suggested wording was tabled by the Department’s drafters, who indicated that a new Bill could either isolate all the problematic sections of the Sexual Offences Act and rectify them, in the form of a table providing also for specific penalties, or draft a new section 56A, to refer to all offences, and this would then  incorporate the wording of the current section 56(7). The Committee preferred the latter option, and asked that a new draft Bill be prepared, from which the Committee would work, containing that option only. They commented that this would then involve changes to the Long Title, and pointed out that reference to specific Acts needed also to be changed to “any other legislation”. The drafters were asked to ensure consistency with other legislation, in the use of the terms “may” and “penalties”. Members also decided that the Committee should issue a statement to say how it was addressing the matter, and noting that, due to the urgency of the matter, formal public hearings would not be held, although written submissions would be welcomed before 12:00 on Monday 28 May. The statement would also indicate where the draft Bill could be accessed. The Committee would debate the Bill on 29 May and hoped to pass it in the first week of June.

Meeting report

Judicial Matters Amendment Bill
Mr Lawrence Bassett, Deputy Chief State Law Advisor, Department of Justice and Constitutional Development, noted that the Department of Justice and Constitutional Development (DOJ) had discussions on clause 4 of the Judicial Matters Amendment Bill (the Bill) with National Treasury. This clause provided for a mechanism by which the Special Investigating Unit would be able to charge certain entities for the investigations that it undertook. National Treasury had approved of the amendment.

He noted that the DOJ had heard nothing more from the National Prosecuting Authority (NPA) in relation to clause 10.

The Chairperson noted that a proposed amendment had been circulated, and gave Members a few moment to check it.

Mr J Jeffery (ANC) was not happy with the wording. It implied that every entity would be charged for the investigation. At the moment, he did not believe this was happening, so he thought it was a new principle being established and he thought that greater protection was needed than merely relying upon SIU to exercise its discretion whether to charge or not.

Mr Gerard Visser, Executive Manager, Special Investigating Unit (SIU) noted that in the past the SIU had only charged those with whom it had Service Level Agreements (SLAs). About 40% of its income came from charging fees, and it did so in about two thirds of the investigations. In the initial talks, it was suggested that the SIU should be charging every entity that was able to pay, and that did not apply for an exemption. He pointed out that this would allow a more competitive tariff to be charged, probably lower than the maximum prescribed by the Minister. Additional funding from the fiscus would be obtained.

Ms Schäfer asked how SIU would continue functioning if it could not recover the money.

Prof L Ndabandaba (ANC) asked how the SIU determined who was able to pay.

Mr Visser said that this presupposed some sort of assessment by National or Provincial Treasury as it would be in the best position to pronounce on an entity's ability to pay. He did not anticipate that the majority of institutions would apply for this exemption; many had a budget for forensic investigations. In the previous week Members had expressed concerns that poor municipalities might, if requested to pay, divert funding away from service delivery. The purpose of this additional amendment was to provide for circumstances where an entity applied for exemption. It was intended that the Treasury would conduct an inquiry and make a finding.

Mr Bassett said that clause 4, amending section 5 of the SIU Act was worded as "may charge and recover" so it would apply only where the SIU did decide to charge.

Mr Jeffery noted that, at the moment, the SIU did have a fiscal allocation, so it was in a different position to the Auditor-General, which was expected to fund itself. The allocation had been steadily increasing. It had, at some stage, developed a practice of recovering from state institutions, until Eskom had questioned the legality of this. He wondered if a shift in funding might result in National Treasury granting lower allocations, and expecting the SIU to recover more.

The Chairperson pointed out that the mandate of the SIU included collection.

Mr Visser said that the SIU had considered the concerns raised by Mr Jeffery. The National Treasury Director in charge of the SIU's budget had attended the meeting and it was noted that changes to the funding structure may result in lowered allocations. However, it was necessary to move away from the SLAs to a statutory basis for charging.

Mr S Swart (ACDP) wondered if there was any possibility that a local government's “relevant Treasury” would be able to block an investigation.

The Chairperson asked which Treasury dealt with municipalities.

Mr Visser agreed that there had been a debate on the wording and it was decided to leave it as "relevant Treasury" because it could refer only to national or provincial treasury.

Mr Jeffery confirmed that National Treasury would deal with municipalities. He noted that the "Treasury" was defined in the Public Finance Management Act (PFMA) and it may be necessary to incorporate a cross-reference to that.

Mr Jeffery thought that the wording could simply be amended by the drafters, and it was probably not necessary for the SIU to return to the Committee.

On the matter of process, Mr Jeffery noted that the NPA had raised concerns on clause 10, unrelated to the SIU and it had been suggested that this clause might be excised. However, on reconsideration, he had noted that there was also some urgency about passing clause 10.

Mr Swart agreed, saying that the Committee had emphasised the importance of passing the Bill when the NPA was present, but at the same time the Committee had also given an undertaking to the Asset Forfeiture Unit (AFU) head, Mr Willie Hofmeyr, some time previously, to deal with the former Special Operations staff and ensure that they were retained. He was not sure if it had been captured in a Committee resolution. The implications and concerns of the NPA must be balanced against those of the AFU.

Ms M Smuts (DA) said that the NPA was concerned with possible duplication with the South Africa Police Service (SAPS), but there was no question that the NPA needed to retain skills. She thought that the Committee should not delay its own work by waiting for a response from the NPA.

Mr Jeffery said that the Committee had two and a half weeks to finalise the Bill. Personally, he still was not convinced on the NPA's concerns. It was not possible to vote on the Bill now, since the SIU wording still needed to be finalised, but he did think the Committee should aim to deal with it next week.

Mr Swart cautioned that if the NPA waited until the last moment to respond, it may be difficult to get feedback from the AFU.

Mr Jeffery suggested it might be more appropriate to seek a response from the Ministry, as he would not like to see contradictory submissions from the NPA and AFU.

Mr Swart appreciated the line functions, but thought a position of consensus should be presented to the Committee.

Ms Smuts said that Mr Hofmeyr would be approached in his capacity as head of the AFU.

The Chairperson undertook to discuss the matter with the Acting National Director of Public Prosecutions, Adv Jiba, and indicate that she should also consult with Mr Hofmeyr and the Minister. He would make it clear that the Committee had to deal with the matter in the following week, whether or not a response was received, and if a response was given the Committee would of course consider it, but would not be bound by it.

Members agreed to deal further with the Bill, and hopefully adopt it, on 29 May.

Sheriffs Amendment Bill
Mr Jeffery reminded Members that during the last meeting when the Sheriffs Amendment Bill (the Bill) was discussed, the Board of Sheriffs had raised a concern that it was required to have the approval of the Minister in relation to amounts to be charged for the Fidelity Fund for Sheriffs (the Fund). The Board had now submitted a letter, dated 18 May, in which it indicated that, after further consultation, it would leave the matter in the hands of the Committee, and hoped that the efficient management of the Fund by the Board to date would continue.

Another concern was raised that sheriffs may be expected to pay the allowances of the Advisory Committee that made recommendations to the Minister on appointments. The Committee had not given any instructions to the drafters, and therefore must discuss the issues.

Mr Swart thought that perhaps a compromise might be to use the words "after consultation:

Mr Jeffery noted that that the Board had stated, on page 2 of the letter, that it was happy with the current wording.

Mr Hishaam Mohamed, Regional Head: Western Cape, Department of Justice and Constitutional Development, briefly outlined that the Board had to appoint assurers to the Fund. It had done an audit of the current claims, but was expecting more claims due to increased awareness within the profession about the claims process.

Ms Schäfer questioned the wording of clause 7(2)(a), which referred to “associations which, in the opinion of the Minister, represent the Sheriffs profession” She thought perhaps there should be guidelines or criteria on how this opinion should be formed. She was also concerned as to how many members the Advisory Committee would have, and suggested that limiting words such as "consisting of not more than…" should be used.

The Chairperson pointed out that clause 7(1) specified that the Board must consist of 11 members.

Mr Blendynn Williams, Head: Office of the Deputy Minister, said that the Advisory Committee consisted of fie members and was normally chaired by the Chief Magistrate of the area, and would include an attorney, the magistrate from an area and a sheriff. It was governed by Regulations, not in primary legislation.

Mr Jeffery thought that Ms Schäfer was being overly-cautious. The Advisory Committee would be set up using the Department’s budget, so there would be concerns about cost, and the Minister would make regulations after consultation with the Board. In relation to the point she had raised about associations, he noted that the original wording was “nominated from within the profession” but was changed to set out a procedure. If there was a genuine association whose opinion the Minister did not take into account, that body would be entitled to take the Minister on review.

Mr Mohamed confirmed that the status of representative associations tended to change, and that was the reason for wording this as broadly as possible. The Minister would have to determine if there was an association and how representative it was. The Department would, when appointing the Advisory Committee, have regard to budgetary constraints in terms of numbers, whilst also ensuring as broad representation as possible, including local people, to address previous concerns where sheriffs were not properly represented. The DOJ had issued a directive for the Advisory Committee.

Mr Williams confirmed that at the moment there were three associations, but two would be merging. The Deputy Sheriffs at some stage had their own association.

The Chairperson thought it was safer not to attempt to name any bodies.

Mr Jeffery asked if there were still concerns about clause 3, amending section 2(a).

Mr Williams confirmed that there were not. At the moment the DOJ, through its regional offices, was paying the allowances and tariffs had been approved.

Mr Jeffery agreed that this was the case, but it was necessary to provide for the future, and suggested that inclusion of wording such as “shall be paid such allowances from the Department” would make it more clear.

Mr Williams and Mr Mohamed confirmed that there would be no difficulty with this.

Mr Mohamed added that at the moment the Advisory Committee was in the process of helping to fill about 200 vacancies, but the work would lessen in future.

The Chairperson asked the drafters to prepare the necessary amendment by the following day.

Mr Johann Labuschagne, Principal State Law Advisor, Department of Justice and Constitutional Development, indicated that another amendment was needed, on page 7, at line 24, to replace the word “subsection” with “section”.

Sexual Offences Act:  Report and proposals for amendment following Western Cape court ruling
Mr Jeffery referred to media reports over the weekend, particularly in the Cape Argus, and said these illustrated firstly, the importance of dealing urgently with the matter, and, secondly, the need to inform the public properly.

Mr Henk du Preez, State Law Advisor, Department of Justice and Constitutional Development, tabled a report to the Portfolio Committee of the background to the matter, and took the Committee through the main points. He noted that an accused, Mr Prins, had been charged with sexual assault but his legal representatives raised an objection to the charge sheet on the grounds that section 5(1), under which he was charged, did not disclose an offence, as no penalties for that offence were outlined. The matter was taken on appeal by the NPA, from the Mossel Bay Magistrate’s Court to the Western Cape High Court. The appeal was dismissed. This decision was primarily based on the judicial officers’ interpretation of the principle of legality. The judgment had wide-ranging implications on a large number of offences in the Sexual Offences Act (the Act) that did not contain penalty provisions, and affected a number of part-heard matters that were pending in the jurisdiction of the Director of Public Prosecutions in Western Cape. He indicated that the decision of the Western Cape High Court was unanimous. The document explained the findings (see attached document for more detail). He noted, however, that this judgment directly contradicted the decision in the matters of S v Booi and S v Mchunu.

Mr du Preez submitted that the Act, both in the preamble and in the main body, did set out clearly that the legislature had intended to create an offence. One academic opinion was to the effect that in these circumstances, despite the absence of a specific penalty clause, it would be in the discretion of the Court to impose an appropriate sentence.

He noted that the Office of the Chief Litigation Officer had been in contact with the Acting National Director of Public Prosecutions (NDPP), and two Counsel had been appointed. They had indicated their view that the Court should have set out the extent of the alleged unconstitutionality, as required in section 172 of the Constitution. It was imperative that a decision on the Constitutional validity of the Act was made. It had been decided that the most appropriate approach by the National Prosecuting Authority would be to make application for leave to appeal and, if this was granted, to appeal to the Supreme Court of Appeal, and deal with non-constitutional matters before escalating it to the Constitutional Court. The application for leave to appeal was set down for Thursday 24 May. The Minister would be joined as a party.

Mr Swart asked if the Speaker of Parliament was also to be joined.

Mr du Preez said that this had been discussed. However, the more burning issue was how the current situation should be managed. It had been decided that part-heard and pending cases relating to these sections of the Act would be postponed in the Western Cape. Where an accused had not yet pleaded, the matters would be provisionally withdrawn, pending the outcome of the appeal. The Director of Public Prosecutions (DPP), Western Cape, had issued a directive, and other provincial DPPs were also issuing directives. On the basis of stare decisis the courts in KwaZulu Natal and Free State would be in the best situation to proceed, but it was up to the other provinces to decide what they should do. He would keep the Committee updated on their decisions when they had been conveyed.

Counsel for the DPP had advised that legislative amendments should also be sought. The view was that these would not affect the appeal.

Mr Bassett added that Counsel had suggested that the DOJ should also do an audit of other legislation to check if there were other provisions for crimes without penalties, and there was nothing that had been identified in the legislation monitored by the DOJ. It might be appropriate for all other departments to check their relevant legislation.

Discussion
Mr Jeffery said that the media reports had noted that police had been asked not to make arrests in respect of any new complaints. Dockets would be referred to senior prosecutors, and they would decide, in cases where the accused had not pleaded, whether it was preferable to withdraw charges for the moment, or substitute common law charges, alternatively apply for postponements of ongoing cases. He noted that if a person was arrested and brought before a court for one of the offences, s/he would be able to argue that, in terms of the Prins judgment, there was no competent charge. He pointed out  that the last thing the NPA wanted was to have someone acquitted on a technicality, since that person could not be charged again.

Ms Schäfer asked if the SAPS officials, as well as the public, understood that this judgment did not affect every offence under the Act, since there were penalties named for some, and there were also common-law offences. That distinction had to be made clear, so that SAPS did not think that they should not arrest anyone.

Mr Swart asked if there was certainty that the bringing of an amendment by this Committee would not affect any applications. He wondered if the Committee would need to debate what the previous rationale was, and the application to the Supreme Court of Appeal must surely have to state the Legislature’s intention at the time.

Mr Landers said that should not stop the Committee bring its own Bill to amend the Act. He suggested that Mr Swart may wish to consult Hansard, but he did not want whatever had been debated in the past to influence the Committee now, and it would not be helpful to re-debate issues or ascribe blame, as the matter had to be addressed for the future.

Mr Jeffery said that any amendments would not have retrospective effect so it was urgent to find as speedy a resolution as possible, to fix the gap in the law. Until then, any other matters would have to be dealt with in the appeal process.

Ms Bonni Curry, Deputy Director: Prosecutions, Western Cape, noted that she had been responsible for drafting the directive that attempted to minimise the effect of the Prins judgment on pending cases, adding that this was done at extremely short notice. This directive set out what should be done in different scenarios, and it sought to avoid the situation where different courts throughout the Western Cape may attempt to deal with similar charges, with varying decisions. She agreed that rather than taking the chance of acquittals, the NPA had decided not to enrol any more matters for the moment. In every matter reported to the SAPS, a Senior Public Prosecutor would retain the docket and could discuss instructions, but the relevant matters would not be put on the roll, until the matter was settled.

Ms Curry added that on the following day she would be meeting with SAPS. The prosecutors must given their opinion, but at the end of the day, it was up to SAPS whether or not to effect arrests. Senior Public Prosecutors (SPPs) would, when receiving dockets, try to substitute other offences – for instance, under the Children’s Act, which at least would have the effect of getting the perpetrators away from the victims, and there were, as already pointed out, still common law offences as well as other statutory offences that were not affected by this judgment. However, the SPPs must be cautious to avoid substituting a lesser offence, as that would minimise the serious nature of the actions.

Ms Curry said that Judge Blignault had given a general judgment that did not specify what the affected offences were. She noted that she had drafted an Annexure A, which set out all offences not affected by the Prins judgment, and another Annexure B setting out all offences that were affected, and she noted that these were more than 29 in number, because some sections created more than one offence.

The Chairperson asked why rape was left out.

Ms Schäfer said that this was a common law crime.

Ms Curry confirmed this, and said that a penal provision for rape was contained in the legislation that set minimum sentences, Act 105 of 1997. Matters such as sexual exploitation of a child were still protected. However, the major problems caused by the Prins judgment were for crimes of sexual assault, sexual grooming (which was commonplace) and statutory rape.

The Chairperson asked if the judgment would be suspended pending the outcome of the appeal.

Ms Curry did not think that this was possible.

Ms L Adams (COPE) said that if the appeal was dismissed, thereby confirming the correctness of the Prins judgment, pending cases may fall into the cracks, and even the Committee’s proposed amendments would not be retrospective.

Ms Curry agreed that because the Bill would not have retrospective effect, the NPA would, in this instance, have to substitute other charges.

Ms Schäfer remained concerned as to whether SAPS personnel would appreciate in what cases they would be able to arrest.

Ms Curry reiterated that all that the NPA could do was try to guide the SAPS officials, which was the main reason for her meeting with all commanders in the Western Cape on the following day. The NPA was also drafting a list of substitute offences and this would be disseminated to all SAPS members by their commanders, to try to help them in the aftermath of the judgment.

Ms Schäfer noted that this point had been raised in 2010, by the same advocate who had defended Mr Prins, in response to a charge sheet and the NPA had, at that stage, simply withdrawn the charge. The NPA had not approached Parliament to notify it that there could be a problem that needed to be addressed.

Ms Curry said that she would have to investigate that and report back.

Mr Swart said that another question to be discussed was at what point MPs took responsibility. However, he asked that the NPA should emphasise to the SAPS that if they did make arrests they might well be faced also with civil actions for unlawful arrest.

Mr Jeffery agreed on this in relation to cases of uncertainty. However, the fact that the SAPS were being asked not to make arrests at present did not mean that the complaints would be ignored, as they could still open a docket, and make sure that it was referred to SPPs. He thought it was necessary to stress that “no arrest” did not mean “no crime”.

Mr Jeffery responded to Mr Swart’s point about MPs’ responsibility but said that it was in any event impossible to make crimes retrospective, so nothing would be gained by debating the point.

Ms Schäfer said that the existence of two widely divergent views by two respected academics was indicative of the lack of clarity in the law. However, she still felt strongly that when this was raised as an objection to the charge sheet in 2010, and when raised as a defence, MPs should have been notified.

The Chairperson took that point, but said that there was little point in discussing it further.

Ms Curry responded, in respect of the civil implications, that this was the reason why NPA had urged SAPS to be cautious when effecting arrests.

She also noted that the NPA had issued a media statement to try to ensure better public awareness on the issues, and to indicate that the NPA was attempting to minimise the impact of this judgment.

Draft options for Committee Bill
Mr du Preez tabled a draft Bill, which contained some “standard” clauses, and then set out two options. The amendments were essentially concerned with clarifying the principle of legality, which was linked to the intention of the legislature. He noted that the Act clearly had intended to regulate matters, because it had specified that a person doing certain things would be guilty of “the offence of…” and the offence was stated in terms. However, in not every case had a penalty been stated.

He added that the word “offence” was not stated, in terms, in sections 11, 17 and 23 of the Act, so it would, n the first instance, be necessary to insert it to remove any possible doubt. The wording of section 11 did, in his opinion, make this clear, but for even further clarity, a specific reference would be inserted.

The Long Title of the Bill highlighted that the purpose of the Bill was to provide for penalties. He had avoided wording that might indicate that the Legislature had, in 2007, overlooked issues, and had used the wording “expressly provide for penalties in respect of all offences”.

Section 56 of the Act presently had a number of subsections but only one, section 56(7) was concerned with sentencing. He suggested that it would be more appropriate to delete the current section 56(7) and move its content to a new section 56A.

He noted that there were essentially two options for inserting the penalties. He pointed out that Schedule 1 already listed offences. Under the first option, this would remain, but a new Schedule 2 would then be added, listing, and providing for the appropriate penalties that were not incorporated already in Schedule 1. He noted, in respect of the suggested penalties, that it had been necessary to refer to other pieces of legislation, such as the Criminal Law Amendment Act, to insert either a consistent penalty listed elsewhere, or to assess what an appropriate penalty might be. He pointed to some instances, and noted also that should be borne in mind that a person who was prosecuted for one offence was likely to be prosecuted for others simultaneously. For instance, a person charged with displaying pornography to a child may also be prosecuted for being in possession of pornographic material. He also indicated that some of the offences committed against a minor were reflected in similar offences committed again a person who was mentally disabled, and similar sentences would obviously apply.

Mr du Preez indicated that he had not yet had a chance to research what penalties were imposed under the Film and Publications Act. He highlighted some instances, and Members raised queries as to why certain offences, such as incest, carried such a low sentence.

Mr du Preez emphasised that this was only a first draft. He said that the court would be in the best position to decide on the appropriate penalty.

Mr Jeffery agreed, and indicated that two options had been given. Rather than providing for a separate schedule listing penalties for all offences, he suggested that the Committee turn directly to and consider whether option 2 was not preferred. Clauses 1, 2 and 3 would be the same but instead of clause 4, the first option, clause 5 would apply and insert a new section 56A. He said that whilst there were advantages to listing what the legislature thought would be appropriate penalties in a schedule – and he emphasised that these were maximum sentences – for this gave the judiciary an idea of how seriously certain crimes were regarded, there was also much to be said for leaving this in the discretion of the judiciary. One of the objects of the Act was to criminalise all forms of sexual abuse or exploitation. He was not sure how the crimes, procedures and frameworks had been set out, but not necessarily the penalties. The sentencing portion of the existing clause 56(7) related to aggravating circumstances. He felt, overall, that option 2 was preferable.

He added that this gap in the law had to be closed urgently. He agreed that it would be appropriate to use a Committee Bill to do so, as all that was needed was authority from the House for its introduction. He hoped the Committee might be able to pass the Bill in the week after next. He did not think that public hearings were necessary, because of the urgency of the matter. Option 2 contained the minimum that was required to fix the immediate problem. He would prefer not to include a schedule, as public comment would doubtless be directed to what was correct or incorrect in the penalties listed. He noted that the Women's Legal Centre had expressed interest in what Parliament would do, and he thought that the Committee should send the Centre a draft, for comment. The Deputy Minister had indicated that Senior Counsel was also prepared to offer advice on behalf of a non-government organisation (NGO). He thought this would be useful, as long as it was made clear that, in view of the urgency, there would be no public hearings and no extensions of time for submissions to be made. He emphasised that public hearings were not an absolute requirement, and this depended on the public interest, which, in this case, was clearly in having an amendment brought to regularise the position as soon as possible. He did not even think there was time to issue a formal invitation for submissions, although certainly some identified entities, such as the Women’s Legal Centre and Tshwaraneng Legal Advice Centre could be asked if they wished to comment, before Monday 28 May.

Mr Jeffrey stated that the Committee was essentially adopting a minimalist approach to correct this gap only in the law. If there were other gaps, or potential problems, they could be dealt with elsewhere. He urged again that the Committee should try to deal with this matter in the first week of June, to avoid the situation of a week without plenary session, and so as not to place undue pressure on the NCOP.

Ms Curry asked Mr du Preez if he had also considered the Child Justice Act sentencing options. There was currently an anomaly that a child of 14 could be charged with sexual assault, because the Child Justice Act had its own provisions for sentencing of children (in the case of sexual assault by a child 14 years and older, to a sentence not exceeding 25 years). It was necessary to avoid a conflict where a child could be sentenced although an adult could not.

Mr du Preez noted that he would examine this in more depth.

Mr du Preez agreed with Mr Jeffery that the second option seemed preferable, as it was not then necessary to cover every offence specifically. The proposed new section 56A would be referenced in any Act dealing with sentencing.

Ms Adams noted that the word “may” appeared in the proposed new section 56A, but she wondered if this should not read “must”, as she feared that presiding officers could decide not to use this clause.

Mr S Holomisa (ANC) supported option 2, and pointed out that although the judgment was one of the Western Cape, it did have implications for the rest of the country. The formulation of option 2 conformed with the understanding that ideally, sentencing should be in the discretion of the courts. He, like Ms Adams, asked that the drafters look again at whether the words should read “may” or “must”. He also noted that the heading “Penalties” covered both fines and sentences.

Mr du Preez noted that this was a drafting issue. If a presiding officer found someone guilty of an offence s/he must be punished. The penalties were discretionary, so he thought that the word “may” was not problematic.

Mr Jeffery said that he did not want to get into a debate around "may" or "must"; perhaps the Committee should leave it to the drafters to ensure that whatever wording was chosen was consistent with other legislation. The same applied to use of “sentence” or “penalty”.

Mr du Preez added that the second option was a confirmation of the interpretation of the legality principle by Parliament. Section 11 of the Sexual Offences Act would simply confirm the existing law. He pointed out that in the Jordan case, the Constitutional Court found that a client of a prostitute was equally guilty of an offence as the prostitute, and this was included by confirming and highlighting that point. He felt that option 2 would alleviate future problems, for if sentences were described, there was a necessity to re-consider and amend them regularly. He also felt that option 2 would dovetail neatly with the hoped-for outcome from the Supreme Court of Appeal.

Mr Swart questioned the wording of the proposed Long Title, which referred to “all offences” and pointed out that in fact the Bill was dealing with the offences that had been omitted.

Mr du Preez said that the Long Title that had been tabled would be included if Option 1 was chosen. It would need to be re-worded to tie in with option 2. He noted, however, that about half of the offences were already covered, and if additional penalties were introduced, it would effectively cover “all offences”.

Ms C Philane-Majake (ANC) noted that comments had been made earlier about the responsibility of the Legislature, but said it should be borne in mind that law-making processes were consultative and public.

Ms Philane-Majake started to comment on the appropriateness of some of the penalties listed in the proposed new schedule.

The Chairperson interjected to note the general agreement that the Committee did not need to debate the schedule.

Ms Curry pointed out that on page 6, there was also a need to refer to “or any other Act”, in addition to “this Act and the Criminal Law Amendment Act”.

Mr du Preez agreed, saying he had already indicated that subclause (b) would still require some work, especially in view of section 76 of the Child Justice Act. He suggested that it might be more useful to remove all references to specific Acts and refer to “any legislation”.

Mr Jeffery asked that Mr du Preez now prepare a new draft containing the changes already discussed, and setting out only option 2, so that the Bill would contain the wording of the suggested clauses 1, 2, 3 and 5. This new draft would be made available as the working document.

Mr du Preez indicated that he could do this before the end of the day.

Ms Smuts noted that if the Committee decided to issue a statement, the Chairperson could say that he would welcome any written submissions, but allude to the fact that there would be no public hearings because of urgency.

The Chairperson agreed that he could issue a statement indicating that the Committee intended to close the gap in the law by passing an urgent Bill. Written submissions would be welcomed, up to 12:00 on Monday 29 May, and the statement would note where copies of the new draft Bill could be accessed. The Committee should deliberate on the matter on Tuesday 29 May, and the Committee would seek leave to introduce the Bill on Thursday. 

The meeting was adjourned.

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