Members briefly discussed the current situation with the Judicial Matters Amendment Bill. This was originally tagged, by the Joint Tagging Mechanism, as a section 75 bill, although the Parliamentary Legal Advisers had suggested that it should be tagged as a section 76 bill. The Bill had been set down for debate on the afternoon of 22 October, but the Committee had, informally, agreed on 18 October that it should be withdrawn to allow the Committee to excise the problematic clauses, and allow the remainder of the Bill to proceed. This would be done.
The Department of Justice and Constitutional Development took Members through the latest version of the Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill. The Departmental representative noted the Committee's concerns about this title and had suggested to the State Law Advisers that perhaps an alternative citation could be used, only to be told that this was standard procedure. However, he suggested that since this was a Committee Bill, its title could be changed to “Judicial Matters Second Amendment Bill” - it did in any event deal with matters that were originally in the first Judicial Matters Bill. The Committee agreed, and this would be changed throughout the Bill. The Committee confirmed that all the other changes reflected on the latest draft were correct. Clause 2 inserted a new section 55A into the principal Act, and the designation of the new sexual offences courts would be done by the Minister, in consultation with the Chief Justice, and after consultation with the National Director of Public Prosecutions. Clause 3 had been changed to require the South African Police Service, Department of Health, National Director of Public Prosecutions and (for the first time) the Department of Social Services to issue national instructions on the implementation of the sexual offences courts and matters dealt with in them. The Department of Health had not responded to the notification on this, SAPS said that it did not consider this necessary because it already covered sexual offences matters in the existing national instructions, and the other entities supported the change. Members recognised that although this might not strictly speaking be necessary (other than for Department of Social Development) there was no harm in including it. Clause 4 had reverted to the original wording. Clause 5 recognised the designation of courts in the Long Title. Members asked that the Bill be referred for confirmation of the tagging to the Parliamentary Legal Advisers, and would formally adopt the clean version of the Bill, and the Report, on the following day.
Judicial Matters Amendment Bill: tagging and procedure
The Chairperson reminded Members that on the previous Friday, the Committee had briefly debated the fact that the Judicial Matters Amendment Bill had been identified as requiring a re-tagging. The Bill was originally tagged as a section 75 bill, despite the fact that the Parliamentary Legal Advisers had suggested that it should be tagged as a section 76 bill, but at a very late stage the Joint Tagging Mechanism had re-examined its tagging and said that the inclusion of certain clauses would require re-tagging. The Committee had, informally, agreed to excise the clauses so that the remainder of the Bill could proceed as a section 75 Bill. The Chairperson had made the necessary arrangements for the Bill to be removed from the House's agenda for later in the day so that an amended version could be ATCed for another date.
Ms D Schäfer (DA) asked for clarity. She had thought that one of the clauses did affect the provinces, but it was a matter only dealt with tangentially, and wondered if it was necessary to do this.
Mr S Swart (ACDP) pointed out that there were some court judgments on the point, and there were also differing legal opinions. However, he believed that it was correct to err on the side of caution.
The Chairperson fully agreed with these remarks, and this procedure would ensure that there were not any further problems.
Criminal (Sexual Offences and Related Matters) Amendment Act Amendment Bill: Department of Justice and Constitutional Development briefing
Mr Lawrence Bassett, Deputy Chief State Law Adviser, Department of Justice and Constitutional Development, tabled two versions of the Bill: one highlighted the changes made at the last two Committee meetings, and the other was the version of the Bill with these changes included. He suggested that he take the Committee through the version with the changes highlighted.
He reported back that following Members' concerns on the title of the Bill, he had consulted with the State Law Advisers, who had indicated that the words “Amendment Act Amendment Bill” was the usual manner of describing such Bills, and it might cause confusion if this Committee tried to word it differently, by using something like “further Amendment Bill”.
The Chairperson pointed out that once signed into law, it would be “Criminal Law(Sexual Offences and Related Matters) Amendment Act Amendment Act” and that would create even more confusion!
Mr Bassett suggested that one way around this would be for the Committee to change the short title. This was a Committee Bill, and it contained some of the clauses that were originally taken out of the Judicial Matters Amendment Bill. He suggested that it could be re-named as the Judicial Matters Second Amendment Bill.
Mr Swart agreed that this would make sense, and asked if there were then any special procedural implications.
Mr Bassett thought not – this was merely changing the Short Title.
He then took Members through the latest changes.
Clause 2 dealt with the insertion of a new section 55A into the principal Act, and there were amendments in subclauses (2)(b) and (4). It was decided that there was no need to make reference to the Superior Courts Act. The designation would be done by the Minister, in consultation with the Chief Justice, and after consultation with the National Director of Public Prosecutions (NDPP). Subclause (4) changes were then consequential upon that.
Clause 3 dealt with the amendment of section 66(1)(a), and the latest amendments were inserted as a result of comments received. Shukumisa had requested that national instructions or directives be created on the implementation of sexual offences cases handled in the new sexual offences courts. The first amendment was found in clause 3(a), where the reference to the Minister of Safety and Security had been updated to refer to the Minister of Police. A new subparagraph (vii) was then added to state that national instructions or directives would also be created on the manner in which police officials must carry out their responsibilities and duties in relation to the designated sexual offences courts.
Clause 3(b) outlined similar changes, to section 66(2)(a) of the Act, in relation to responsibilities cast on the National Director of Public Prosecutions. Clause 3(c) changed section 66(3)(a) of the Act, giving similar responsibilities to the Director-General of the Department of Health.
A new subclause 3(d) had now been added, in response to the concerns of Shukumisa, that the Department of Social Development should also have to issue national directives, which had not been a requirement previously. A new section 166(3A) was therefore being inserted, to give similar responsibilities to the Director General of Social Services in relation to the designated sexual offences courts.
Clause 3(e) was amending section 66(4)(a), and said that the new national instructions and directives must be submitted to Parliament within six months after any regulations had been made under section 67, and published in the Gazette.
Clause 4 amended section 67 of the principal Act and gave the Minister the power to make regulations. Mr Bassett read out the new wording (see attached document). The Minister may, in consultation with the Chief Justice, make regulations to give effect to the designation of courts. The Committee had decided to revert to the original wording of the Bill as published.
Clause 5 was not specifically discussed on 2 October but the Committee had requested that the the designation of courts be recognised in the Long Title
There were some consequential amendment on the Memorandum of the Objects, on pages 11, 12 and 13, in line with what had been presented here.
Ms D Schäfer (DA) asked if the reference to six months for the operation of the regulations was the best that could be done; she had been concerned about the effect of any delays and the possibility of this perhaps being used as an excuse to delay.
Mr Swart pointed out that there were already enabling provisions to allow all Heads of Department to come up with national instructions, except for the Department of Social Development, which had only recently been added, so that this was actually not strictly speaking necessary.
Mr Bassett noted that the South African Police Service (SAPS) had said already that this provision was not necessary. He thought it would not necessarily result in delays. He suggested that perhaps the Committee, in its report, could urge the functionaries in the various departments to get the directives and national instructions ready with speed. The work would be going on regardless of whether those directives were in place.
Ms Schäfer pointed out that this then raised the question why the provision was being included. Perhaps the Committee Report should note that the Committee had been assured that the directives covered the situation already, but this was inserted for greater clarity and protection.
Mr Bassett said that the representative of the National Prosecuting Authority had supported the idea of directives as well. He felt that the six months requirement would really not make a substantial difference,b but it was useful to include it. There had been comments from the Department of Social Development also supporting the insertion of this clause. Nothing had been received back from the Department of Health. The SAPS had some reservations.
Ms Schäfer asked what the SAPS reservations were.
Mr Bassett clarified that the comment said that SAPS had already issued a comprehensive national instruction on sexual offences, to assist victims, and this instruction and training material was already tabled. Therefor, it did not support the inclusion of 66A (6), and the intimation was that this was because it was already included. He did not think this should detract from including the new clause.
Members agreed that it could do no harm.
Mr Swart pointed out that there was still some confusion on the wording in clause 3(4).
Mr Bassett confirmed that it should read “after consultation” so the “in” must be removed. He added that everywhere in the Bill where there were still references to the title, this would be changed to reflect “Judicial Matters Second Amendment Bill”.
The Chairperson discussed with Members whether the changes could be done by formal proposals, or if they would prefer a clean Bill.
Ms Schäfer pointed out that the Committee still needed to finalise its Report and suggested that a clean draft be presented then.
Mr Bassett pointed out that this was a Committee Bill and, having discussed the matter briefly with Mr Bell of Parliament, he thought that the formal printing through Creda would only be done after the committee approved the final version.
Ms Schäfer asked what the situation was on the tagging.
Mr Bassett responded that he had suggested that this would be a section 75 bill because it dealt with national competencies. He would be able to produce a cleaned version that afternoon.
The Chairperson suggested that, while the committee Report was being prepared and circulated, the Parliamentary Legal Advisers be provided with the clean Bill and they must be asked to give clarity, urgently, on the tagging and printing. The Bill could then be formally adopted on the following day.
The meeting was adjourned.
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