Traditional Courts Bill: referral to the provinces for further deliberations; Criminal Law (Forensic Procedures) Amendment Bill: deliberations

NCOP Security and Justice

14 October 2013
Chairperson: Mr M Mokgobi (ANC) (Acting)
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Meeting Summary

Members of the Committee agreed to refer the Traditional Courts Bill back to the provinces so that they could be given more opportunity to go through the issues that had been raised. However, it was proposed that a timeframe should be attached to the referral, so it was not left as an open-ended process with no conclusion, and the Bill never returned to Parliament. 

Earlier, a Member of the Eastern Cape Provincial Legislature had said it would be unfortunate if the Bill had to be taken back to the provinces again, as per the majority of the Members of the Committee.  In the view of the Eastern Cape, there was an element of time wasting -- for instance, the issue raised by Gauteng about the funding of the Bill.   That matter did not reside with the provinces.  It was something for the Select Committee to address.   The Eastern Cape had held thorough consultations and public hearings, and the people were saying the Bill was not in the interests of the country, and was actually taking us back.  Their view was that it was a waste of time to refer the Bill back, as they did not see provinces coming to Parliament again with any other mandate.

The Committee heard the response from the Department of Police to the proposals made by the SA Human Rights Commission (SAHRC) on the Criminal Law (Forensic Procedures) Amendment Bill.  They did not agree with majority of the proposed amendments by the Commission, but they agreed to support the request of the Commission to be excused from the Oversight and Ethics Board. Though they thought the Commission’s input on the Board would be valuable, they also understood their position in asking to be excluded from the Board.

The Committee and SAHRC accepted the presentation of the Department of Police, but asked that it should not be implied the Department of Correctional Services had been added to the Board as a replacement for the SAHRC.  The draft should be correctly worded, perhaps even noting that their being left out in the first place had been an omission that was being corrected.
 

Meeting report

Traditional Courts Bill
The Acting Chairperson welcomed every organisation that had shown interest in the Traditional Courts Bill.  According to the invitation sent to the provinces, they had been told that today they would start a process of negotiating the mandate.  However, looking into the provincial inputs, some provinces had requested extensions, some had sought clarity in terms of ambiguity, and some permanent delegates had also raised issues during the meetings of the Committee. For those reasons, the Committee could not proceed with the agenda of the day and engage in terms of the negotiating mandates.

The Chairperson asked the Members to consider referring the Bill back to the various provinces for clarity, and to remove ambiguities.

Mr D Bloem (COPE) said he fully concurred with the Chairperson; let the Bill be referred back to the provinces. Referring to a list; the Eastern Cape, Gauteng, North West, Western Cape and Limpopo were all against the Bill. Let the Bill be referred back, give the provinces a chance to thoroughly go through it and then have a meeting.

Mr A Matila (ANC) agreed to send the Bill back. The provinces indicated by Mr Bloem had said that there were areas about the constitutionality of the Bill that needed to be dealt with and amended. Secondly there was an issue about who would fund the Bill.   Another matter raised was around women’s rights that the Bill was not clear on. The Bill still needed a lot of work to be done on it. The Bill should be referred back for the provinces for further consultations, as they said they had not been given enough time for consultations.  They could then give the Committee clear proposals on amendments to the Bill.

Prince M Zulu (IFP) also supported the proposal to refer the Bill back to the provinces to give them time to deal with the issues that they had raised. He also warned the Committee about the areas that had objections to the Bill, but had no traditional leadership.   The focus should be on areas where there was traditional authority --those were the people affected by the Bill, not people staying in Gugulethu, Khayelitsha and Soweto.

Mr V Manzini (DA) said he was concerned that when referring the Bill back, the Committee should have a timeframe.   Mpumalanga, for example, had requested an extension until mid-December.  There should be a timeframe attached to the Bill being referred back, so that it was not an open-ended process and the Bill never returned to Parliament.

The Chairperson said he was glad that the Members were speaking of the referral in the context of their own provinces, so that they could urge their respective provinces to express a view regarding the Bill. 

Mr S Plaatjie (COPE) said the North West province also agreed that the Bill should go back to the provinces for further engagement and consultations.

Mr J Bekker (DA) said the Western Cape also supported referring the Bill back for further discussions. It was a very sensitive, Bill and being a South African, there had to be respect for one another’s cultural backgrounds.

Mr Bloem said the Committee should also not forget about the sentiments people had expressed towards the Bill when there were public hearings.   Most of the people who presented had said that the Bill should be withdrawn completely.

Mr Mninawa Nyusile, Eastern Cape Legislature, attending the meeting to represent what the Eastern Cape had to say about the Bill, said it would be unfortunate if the Bill had to be taken back to the provinces again, as per the majority of the Members of the Committee. In the view of the Eastern Cape, there was an element of time wasting -- for instance, the issue raised by Gauteng about the funding of the Bill.   That matter did not reside with the provinces.  It was something for the Select Committee to address.   The Eastern Cape had held thorough consultations and public hearings, and the people were saying the Bill was not in the interests of the country, and was actually taking us back.  Mr Nyusile held the view that it was a waste of time to refer the Bill back, as he did not see provinces coming to Parliament again with any other mandate.

Mr Matila proposed that the matter be closed.   The majority of the provinces had indicated that they wanted the Bill to be referred back to the provinces.

The Chairperson said that all provinces had the right to express their views in terms of Section 76.  Any view was welcomed.  He asked the Department to express a view on the matter.

Mr Jacob Skhosana, Policy Unit of the Department of Justice and Constitutional Development, said the Bill was with Parliament and would be guided with respect to the views of Parliament.  Should there be any requirement for the Department to share a view on any further consultations with the provinces, it would be available to offer its inputs through the Minister.

Final deliberations on Criminal Law (Forensic Procedures) Amendment Bill [B 9B – 2013]
Lieutenant General Julius Phahlane, Divisional Commissioner for Forensic Services of the SAPS, said the response of the Department would confirm what they had already said to the Committee. The only point that the Department found held water was the argument advanced by the SA Human Rights Commission (SAHRC) to not include them on the Board.  All the other issues had been well deliberated on during the process of formulating the Bill.

Major General Philip Jacobs, Legal Services of the SAPS, went through the Department of Police’s response to the submissions of the SAHRC.

The SAHRC proposed that the Bill be aligned with the Child Justice Act by stating the corresponding schedule of offences under which children’s DNA was to be taken.  The Department said that in drafting Schedule 8 of the Bill, cognizance had been taken of schedules in various pieces of legislation, including the Child Justice Act.  Focus had been placed on the types of offences where DNA evidence was required.  The offences in the Children’s Act had been taken into account, but more attention had to be given to other offences where DNA was relevant.  The recommendation was therefore not supported by the Department, and no amendment would be made in this regard.

The SAHRC had proposed that “or an appropriate adult” be inserted in Clause 15K (1) (b) and 15N (2) (e).   The Department said that currently, both provisions provided for assistance by the child’s parent or guardian. The addition of the phrase might be of assistance.  It should relate mainly to a person such as a social worker. The Bill was aimed at taking samples of suspects, or possible suspects, and not of victims. Therefore no amendment was supported in this regard.

The SAHRC had said that the Bill was silent on persons with disabilities, thus leaving the door open for the violation of their rights.  The Department said that the proposed Section 36A(3) provides that buccal samples must be taken by an authorized person who was of the same gender, and with strict regard to decency and order, This requirement was valid in respect of all persons from whom buccal swabs were taken, not only persons with disabilities. The Department was of the opinion that no further amendments were required in this respect.

The SAHRC had recommended that there be a 30-day timeframe articulated in the Bill regarding the loading of DNA samples on to the National Forensic DNA Database (NFDD).  The Department said the Bill clearly provided that DNA sample should be destroyed within 30 days from the date on which the profile had been determined. As stated by the SAHRC, it was incorrect to say that the DNA sample must be loaded on the NFDD -- the profile would be loaded. Hence, no amendments in this regard were supported.

The SAHRC had proposed the addition of a provision relating to providing a DNA sample freely and without undue influence.   The Department said that where DNA of volunteers was taken, the “informed consent” of the person was required.  Courts required that the consent be given freely and without undue influence in order to be a valid consent.  It was the opinion of the Department that there should be no amendment in this regard.

The SAHRC had proposed a human rights response to training in respect of taking DNA samples.
The Department said the training of police officials would be done by the Department of Health, and was already prescribed. In addition, Section 15T provided that the National Commissioner and the Director of the Independent Police Investigative Directorate (IPID) should develop awareness programs to support the implementation of the Act, aimed at the public, the police and IPID.  A human rights approach was reflected in various dimensions of the Bill. Therefore no amendment in this regard was supported.

The SAHRC had recommended that the SAHRC, as a constitutional body accountable only to Parliament and the Constitution, should be removed from the Oversight and Ethics Board, and so should the Secretary of the Police. Also, the Board should be mandated to promote, seek and remedy violations of human rights.  The Department said that the Oversight and Ethics Board could determine its own rules, but it was expected that the representatives of the SAHRC could give guidance on human rights issues to the Board.  As to the Secretary of Police on the Board, it was explained to the Committee that in terms of oversight role of the Secretary of Police, the appointment should not be conflicting as the SAPS was not represented on the Board. The Department proposed that should the Committee be of the opinion that the SAHRC should be removed from the Bill as a representative on the Oversight and Ethics Board, this would be respected.

The Department proposed the amendment of Section 15V (2) of the DNA Bill, which dealt with the composition of the Board.

Discussion
Ms Rachel Ward, Researcher of the SAHRC, agreed with most of the issues raised in the original submission minus the issue to do with the Oversight Board.   The SAHRC was of the view that it should be removed from the Board. She further maintained that the issue of people with disabilities should be treated -- whether victim or perpetrator -- could be dealt with within further regulation.

Mr Bloem agreed with the proposals, especially with the one on Page nine, that a representative from the Department of Correctional Services should be included on the Board.  He moved that the Committee should support of the recommendation.

Mr Matila seconded the proposed adoption of the Bill, with the amendments, as indicated.

Mr L Nzimande (ANC) said he had a slight problem with the proposal from Major General Jacobs.  SAPS were now saying that the Department of Correctional Services was on the Board because of the SAHRC. Though he was not opposed to Correctional Services being on the Board, the inclusion of Correctional Services on the Board should be worded properly in the draft, and maybe it should even be recognised that their not being included the first time around was an omission.  It was the addition of the Department, and not a replacement of the SAHRC.

The Chairperson said in view of the submission, the input and satisfaction of the SAHRC and the Committee, and Mr Nzimande’s comment, the Committee accepted the presentation by the delegates from the Police.  He thanked the SAHRC for always being on guard for the rights of South Africans, and the Department for doing its job.

Meeting was adjourned.
 

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