Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill; Judicial Matters Amendment Bill [B11A - 2012]: deliberations and adoption

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Justice and Correctional Services

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

The Committee deliberated on the Criminal Law (Sexual Offences and Related Matters) Amendment Bill which had yet to be tabled in Parliament [tabled on 31 May 2012] and the Judicial Matters Amendment Bill. The Committee expressed appreciation for the submissions received at short notice on Criminal Law (Sexual Offences and Related Matters) Amendment Bill and observed that they were all in favour of the approach undertaken by the Committee to address the gaps raised in the Prins judgment. The Committee stressed that it could not create specific sentences for specific crimes in a Schedule as there were time constraints and the exercise would take too long. The Committee agreed to one more amendment which would be a cross reference to Section 276 of the Criminal Procedure Act 51 of 1977.

The Committee received a provisional Memorandum of Advice from counsel for the Minister of Justice and Constitutional Development to the effect that the approach undertaken to address the gaps in the Criminal Law (Sexual Offences and Related Matters) Amendment Act was appropriate. The Committee unanimously approved the Criminal Law (Sexual Offences and Related Matters) Amendment Bill with amendments.

The Committee also considered the Judicial Matters Amendment Bill [B11-2012]. The discussions on the Bill focused on clause 4 which provided for state institutions unable to afford the fees charged by the Special Investigating Unit for investigations, to apply to National Treasury for assistance. The Committee wanted to ensure that National and Provincial Treasuries would be duly informed so that an assessment could be made to determine whether the relevant institution could afford the fees or not. The Committee wanted to prevent a situation where the institution would use capital expenditure funds to pay the debt. The Committee unanimously adopted the Judicial Matters Amendment Bill with amendments.

Meeting report

Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill
Ms M Smuts (DA) expressed appreciation for the submissions and said that the argument contained in most of them that the Committee had to drop clause 56A(2) because an element of a crime could not be used for consideration during sentencing, was persuasive. Most of the submissions agreed with the approach undertaken by the Committee to resolve this matter.

Ms D Schäfer (DA) agreed that clause 56A(2) should be dropped. There was some confusion regarding S11 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act. The concern was that the Films and Publications Act had a similar clause and this was something that the Committee would have to look. The suggestion by the National Prosecuting Authority (NPA) that the Committee should look at the Criminal Procedure Act 51 of 1977 (CPA) should be also be considered.

Mr S Swart (ACDP) said that he also agreed with the two previous speakers. It was good to hear that the NPA had been given leave to appeal in the Prins case.

Mr J Jeffery (ANC) said that there was general agreement. Clause 56A(2) should be left out of the sentencing and remain where it was currently. The NPA submission proposed to cover any other crime or matter for which there was no penalty. The difficulty with this was that the Committee had not applied its mind to this and correcting gaps in legislation was not like filling cracks in a wall with pollyfilla. The Committee could raise in its report on the Bill that there may be other gaps that should be looked at. Could the Committee be taken through the document that it had just received, the Memorandum of Advice? In the Memorandum of Advice document there was a request for there to be specific sentences for certain specific crimes. The Committee had taken the position that it could not do this because of time constraints, given the urgency of the matter. The Women’s Legal Centre had requested a cross reference to Section 276 of the CPA; the Committee should consider this strongly.

Mr Swart said that he agreed with the suggestion regarding Section 276 of the CPA.

Mr Andre Nel, NPA, said that the NPA did not support nor propose an amendment to section 276 of the CPA. The gist of the NPA’s submission was that given that there was other legislation that had a similar problem as the Sexual Offences Act, the Committee may consider an amendment to Section 276 of the CPA to include a provision similar to the one currently in the Bill. There were disadvantages and advantages to doing this though. One of the disadvantages was that it was not advisable to have the provision in the Bill as well as under Section 276 because the ordinary person for whom the legislature was legislating, may not be aware of what the sentence would be. The NPA did not agree with the decision taken in the Prins judgment.

The Chairperson said that the Committee faced time constraints. The police had been told to be cautious by the Western Cape NPA when charging persons with the offences in the Bill. How should the police then proceed? This was the difficulty. The exercise of listing the offences and then prescribing sentences in the Schedule was not a simple one and it would take time.

Mr Jeffery followed on to say that the Committee was trying to provide the correct legislative amendment as soon as possible; time was something that the Committee did not have.  

Mr Gideon Hoon, State Law Adviser from the Office of the Chief State Law Adviser (OCSLA), said the state law advisers were of the opinion that clause 5 as proposed by the Committee would address the findings of the court in the Prins judgement.

Mr Henk Du Preez, State Law Adviser: Department of Justice and Constitutional Development (DoJ&CD) said that the Memorandum of Advice was from the Minister’s counsel. When opinion was sought from the minister’s council it was unfortunate that the state law advisers phrased the question incorrectly. The opinion insofar as the proposed clause 56A was concerned was reflected in the first eight pages and page 16 in the summary. On page 11, paragraph 25, the following was expressed: “The only reasonable inference from this was that this was an innocent omission and not a deliberate one by Parliament”. This opinion was provisional and the state law advisers had not had the opportunity to consult with counsel for the Minister. Paragraphs 12 and 13 on page seven were very important. In paragraph 12 it stated that “In our view the proposed draft provision does not address the findings by the court in the Prins judgement. The reason was that the proposed draft provision conferred discretion on a court to impose a sentence which that court considered to be appropriate and within the court’s jurisdiction. The High Court had criticised this approach and had said that the notion that punishment should be left to the discretion of a judge was the antithesis to the nulla poena sine lege principle. The court has mischaracterised the nulla poena sine lege principle, the wording of Section 56 was not objectionable.

Mr Du Preez continued to say that the opinion did not criticise the approach undertaken by the Committee.

Mr Swart said that he liked the part of the opinion that stated, “how could it ever be said that it was the legislature’s intention not to punish certain sexual offences”. It was always the intention that sexual offences should be punishable otherwise the whole thing would be irrational, absurd and this would fly in the face of various statutes of interpretation principles.

Mr Jeffery said the Committee and other stakeholders were all on the same page. The Committee was seriously considering keeping clause 56(7) where it was at the moment and therefore deleting clause 56A(2). The other consideration was the cross-reference to Section 276 of the CPA.

Mr Lawrence Bassett, DoJ&CD
Chief Director: Legislative Drafting, said that the Bill before the Committee now was a little bit different from the one that was presented last week. Last week’s version did not make provision for a court other than the court that convicted a person of a sexual offence to impose a sentence. In terms of the CPA it was not necessarily a court that convicted a person which always imposed a sentence; it could be dealt with in a district court and submitted to a regional court for sentencing. The Department wanted to cater for this and this was why the Bill differed slightly from last week’s Bill.

Mr Du Preez said that the Department did not object to deleting clause 56(7) from clause 56A(2) however given that the rest of Section 56 dealt with defences, and if there was a dedicated sentencing provision then it would make sense to move clause 56A(2) and insert it in the provision that dealt with sentencing. There was no problem with the cross referencing of Section 276.

Mr Bassett agreed with the cross referencing.

Mr Jeffery said that the opposition to clause 56A(2) came from Tshwaranang Legal Advocacy Centre (TLAC) and Sex Workers
Education and Advocacy Taskforce (SWEAT). The issue was that this section was already in the Sexual Offences Act. The subclause should not be deleted and the amendment should remain as it was. The Committee should change as little as possible to the Act. It could be included in the Committee Report that this was not a new clause and only that it had been moved around.

Ms Smuts agreed with the approach proposed by Mr Jeffery.

Mr Du Preez said that the Department had provided a Memorandum of Objects for the Committee.

Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill: voting
The Chairperson put the Bill to the Committee as amended and requested the state law advisers to effect the changes agreed to by the Committee.

The Bill was approved unanimously.

Judicial Matters Amendment Bill: proposed amendments
Mr Bassett said that the proposed amendments had been distributed to the Committee.

Mr Sarel Robbertse, DoJ&CD State Law Adviser, said that the Department had been requested by the Committee to meet with National Treasury to insert a clause in the Bill which dealt with the powers of the Special Investigating Unit (SIU) to charge certain fees for investigations. A new sub-section under Section 5(1) of the Act has been inserted as amended by clause 4. The new insertion provided for those organs of state that could not afford the SIU fees of the SIU to apply to National Treasury for assistance. National Treasury would consider the matter with the Head of the SIU and then make a finding as to whether the particular state institution was in a position to pay the fees or not. There was an amendment on page 1 of the document distributed last week under clause 1(a)A, after ‘Treasury’ the words “as contemplated in the Public Finance Management Act” were inserted. There were concerns raised by the Committee last time whether municipalities would resort to this option under either National or Provincial Treasury. In terms of the Public Finance Management Act (PFMA) Provincial Treasury had certain powers over local government, however for municipalities the applicable Act was the Municipal Finance Management Act (MFMA). The MFMA imposed certain obligations on National and Provincial Treasuries to monitor the budgets of municipalities. Clause 10 related to the appointment of financial investigators. The Department wanted to propose that ‘investigator’ under clause 43(4)(b) should be taken out so that new appointees could only be appointed as financial analysts. It was the National Prosecuting Authority (NPA) that had made the decision that there would no longer be personnel that would be appointed as financial investigators only as financial analysts.

Ms Schäfer asked why.

Mr Robbertse replied that the powers would remain the same but the job description would be different.

Ms C Philane-Majake (ANC) requested clarity on the PFMA and the reporting lines to National Treasury. How would the municipalities interact with National Treasury and account to it?

Mr Jeffery replied that local government was a separate sphere, local government finances did not go through provincial treasuries. The appropriate body was national government. The situation that the Committee wanted to provide for was where the SIU charged a local municipality that could not afford the fees and then in turn the municipality used its capital expenditure funds to pay the debt. Any consultations would be with National Treasury.

Mr Sarel Robbertse said that the expenditure of a municipality must be submitted to Provincial and National Treasury. A municipality could either approach Provincial and National Treasury where it was being investigated by the SIU and was being charged.

Mr Jeffery said that Advocate Nomgcobo Jiba, Acting National Director of Public Prosecutions (NDPP) had orally raised some concerns on clause 10. She had written to the Minister and was meant to come back to the Committee but nothing had been received. If the NPA wanted to make further amendments then they could do so in the National Council of Provinces (NCOP).

Voting on Judicial Matters Amendment Bill
The Chairperson put the Bill to the Committee on a clause-by-clause basis.

The Committee unanimously adopted the Bill with amendments.

The Chairperson thanked Members and informed them that tomorrow they would be dealing with The Prevention and Combating of Trafficking in Persons Bill.

Meeting Adjourned.

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