Criminal Law (Sexual Offences and Related Matters) Amendment Act: Constitutional Court judgements: briefing by Child Law Centre; Implementation report by Department

This premium content has been made freely available

Justice and Correctional Services

17 September 2014
Chairperson: Dr M Motshekga (ANC)
Share this page:

Meeting Summary

The Child Law Centre presented on the findings of two Constitutional Court judgements which declared provisions of the Criminal Law (Sexual Offences and Related Matters) Amendment Act unconstitutional. The impugned sections dealt with the age of consent between adolescents or children under the age of 16 and the inclusion of children’s names on the National Register of Sex Offenders. The Court ruled that exposing a child who claims to have been raped by someone under 16 to a criminal charge upon the accused pleading consent and even in the case of consensual sexual activity is unconstitutional. In the second case the court ruled that the purpose of protecting children from sex offenders being in positions of care does not require the automatic inclusion of child sex offender’s names on the register and that this would in fact be contrary to the child’s best interests. The court ruled that Parliament had 18 and 15 months respectively to remedy the constitutional flaws.

The discussion that followed looked at how to deal with the problem of protecting younger children from sexual predation by adolescents, rather than adopting the approach which exposes complainants to secondary trauma by having to disprove consent. The extent of general awareness of the law among children was also debated. It also had input from the various departments represented at the meeting on how they are implementing the recommendations of the Constitutional Court. The need for extensive consultation during the preparation of the Amendment Bill was repeatedly emphasised by Members and this was agreed to by the Department of Justice and Correctional Services.

The Department then presented on the Annual Consolidated Inter-sectoral Report on the implementation of the Criminal Law (Sexual Offences and Related Matters) Amendment Act. The presentation canvassed both the human and physical or infrastructural resources which have been dedicated to implementation, as well as the crime statistics for sexual offences and their prosecution.

Here the discussion focused on the statistics provided by the departments and their accuracy in comparison to what was occurring on the ground. An update was sought on the implementation of aspects of the new model for dealing with sexual offences, such as the upgrading of the closed circuit television systems used for in camera testimony by victims of sexual offences. The potential for assistance by community organisations in the implementation of the Act was proposed by Members, particularly the Chairperson.

Meeting report

The Chairperson said that looking at the reports he gets the impression that issues are being addressed as though South Africa were a European country, although it has been said that South Africa has two nations in one country. The reports do not speak to the situation on the ground, particularly in informal settlements. The socio-economic conditions mean that normal policing and implementation of criminal justice laws cannot exist, because basic requirements for policing, such as roads and house numbers are absent. Reliance on the normal structures alone is thus insufficient and the opportunities for community involvement are not canvassed thoroughly enough. People need to be empowered to police themselves and also take remedial action, without over-reliance on government. He asked to what extent autonomous civil society is enabled to participate in the implementation of these laws. Particularly how the universities with law clinics and community advice centres are involved in working with government. He noted the 1980s’ initiative called the National Children’s Rights Committee, which had a network of children’s rights committees and Molo Songololo was part of this and how have these structures had been involved in government’s work. Government has highlighted the need for radical socio-economic transformation, what concrete things are the department doing to ensure that this is achieved holistically. He was also concerned about delays in reports coming to Parliament, because if only two reports are submitted during a five-year term and elections are upon Parliament before it can act, then the electorate will not see the change it has voted for.

Criminal Law (Sexual Offences and Related Matters) Amendment Act: recent Constitutional Court judgements & Possible Amendments: briefing by Centre for Child Law
Prof Ann Skelton, Director: Centre for Child Law, said that the Centre for Child Law (CCL) was here to outline the implications of two Constitutional Court judgements dealing with the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. Sections of the Sexual Offences Act were declared unconstitutional in the two judgements: Teddy Bear Clinic and Rapcan v Minister of Justice and the National Director of Public Prosecutions (Teddy Bear Clinic), and J v National Director Public Prosecutions (the J case). She added that the CCL was the legal representative of the applicants in the Teddy Bear Clinic case and amici curiae in the J case.

Prof Skelton looked at sections 15 and 16 which were under consideration in the Teddy Bear Clinic case.  Section 15(1) makes a person who commits an act of sexual penetration with a person below the age of 16 guilty despite the consent of the child. Section 16(1) is the same, except it applies to acts of sexual violation. The purpose of the provisions was to protect children from persons older than 16 and remove the previous discrimination based on gender by making the age of consent 16 universally. Relevant definitions include ‘child’, defined as a person who is between the ages of 12 and 16. Sexual penetration is any act which causes penetration to any extent including oral sex, genital or anal penetration, digital penetration and penetration with an object. Sexual violation is broadly defined, but includes any contact, direct or indirect, which could or causes sexual arousal or stimulation, including kissing fondling and masturbation of one person by another. In Sections 15(2) and 16(2) if both persons are under 16 and engage in the activities described in sections 15(1) and 16(1), if prosecution is instituted then both must be charged. While there is no ‘close in age’ defence available for a charge under section 15(2), under section 16(2) it is possible to successfully plead that the age difference is less than two years. This changed the law from the position where only sexual activity between an adult and a child was criminalised, to now inter-child sexual activity being criminalised.

Teddy Bear Clinic and Rapcan v Minister of Justice and National Director of Public Prosecutions
Prof Skelton said that the application was by Teddy Bear Clinic and Rapcan, both organisations which deal with child abuse and child sex offenders, because they believed the provisions to be harmful to children when applied to consensual sexual activity between adolescents. She emphasised that the case was not about reducing the age of consent, nor about adolescents having a right to engage in sexual behaviour. Rather it was challenging the criminalisation of this behaviour. Khampepe J’s judgment for the unanimous court began by making it clear that children are fundamental bearers of human rights.

The findings of the judge turned on three critical grounds: the right to human dignity, privacy and the paramouncy of the interests of children in all matters affecting them. The infringement of the right to human dignity was based on the fact that criminalisation of private sexual choices produces a stigmatisation which is degrading. Especially as the scope of behaviour criminalised was too wide and included behaviour which is part of normal adolescent development and added an element of disgrace to such behaviour. The right to privacy, a right linked to dignity, protected the inner sanctum of personhood of which sexual expression is a part. The violation here is as a result of public officials being empowered to intrude into the intimate relationship of adolescents which is a deeply personal realm of their lives. Lastly, section 28(2), which protects the best interests of children, would be violated by the provisions if exposing children to criminal justice system in this context could be shown to generally have a negative impact. The judgement identified five specific grounds which indicated the impugned criminalisation was not in the best interests of children in general, including the provisions exacerbating harm to children due to them avoiding support structures and potentially taking their sexual activity underground. It is fundamentally irrational to state that children do not have the capacity to engage in sexual behaviour, yet have the capacity to face a criminal charge based on this behaviour.

In application of the section 36 limitations analysis the court found that there were less restrictive means to achieve the aim of protecting children and helping them lead responsible sexual lives, aside from criminalisation. The result was the declaration of sections 15 and 16 invalid to the extent that they were inconsistent with the Constitution and the suspension of this invalidity for 18 months for Parliament to remedy the defects. The new legislation will have to be in place by 17 April 2015. While the applicants had argued for the ‘close in age’ defence to sexual penetration being extended to 16 and 17 year olds, the court did not make a direct finding, but indicated that Parliament may wish to reconsider the position.

J v National Director of Public Prosecutions
Prof Skelton gave a brief overview of the law under consideration in the case. She said that when a person is convicted of a sexual offence against a child or mentally disabled person, under section 50(2) the court must make an order that the particulars of the offender are placed on the National Register for Sex Offenders (NRSO or the Register). Removal of names from the register is differentiated based on the nature of the sentence imposed. For example a person who was alleged to have committed a sexual offence but was found to not have capacity may apply for removal after 5 years from recovery and a person who has been convicted and sentenced to a term of more than 18 months, without the option of a fine or has more than one conviction for sexual offences may not have their particulars removed.

In the High Court the accused, a male adolescent, was charged with four counts and sentenced to five years at a criminal youth care centre and a further three years imprisonment. The findings of the automatic review bench was that the section was unconstitutional, regarding both adults and children. This based on the automatic entry in the Register, which violates the audi alterem partem principle, as the offender has no opportunity to be heard regarding their entry into the Register. She added that no party opposed the declaration of invalidity. Initially the Minister of Justice agreed with the order of invalidity regarding adults, although the amici submitted that it was only appropriate regarding children.

The Constitutional Court declared section 50(2)(a) unconstitutional as it unjustifiably limits the right of child sex offenders to have their best interests considered paramount. The declaration of invalidity was suspended for 15 months. The basis for the unanimous judgement was that the provision does not protect the best interests of the child as protected by section 28(2). Contemporary understanding of the best interests principle involves the idea of children being developing beings capable of change and in need of appropriate nurturing to enable full personal development, including moral development. Prof Skelton said that the trial occurred within the ambit of the Child Justice Act and this Act speaks to the moral malleability and reformability of the child offender. The principle identified was that the law should make allowance for am individuated approach to child offenders, because best interests are always flexible and individualised justice is foreseen by the Child Justice Act. Further, that the Child Justice Act requires the child or their representative to be afforded an opportunity to be heard at every stage of the justice process.

The court then applied the above to section 50(2) finding that it violates the best interests of the child because there is no discretion, and therefore no opportunity for an individuated response. Further, it is not clear that there is logic in applying the effects to a child when the effects will follow them into adulthood, rather than labelling adults as sex offenders. Child offenders who have served their sentences will remain tarred, defeating the reformative aims of child justice. In conducting the limitations analysis, the court said that the purpose of protecting children and disabled persons from persons who would harm them in positions of care is laudable. However, there are less restrictive means to achieve this affording the courts a discretion, including affording the child offender an opportunity to lead evidence against inclusion, or modifications to registration parameters such as when registration is triggered and terminated. The Court then declared the provisions unconstitutional and gave Parliament 15 months to remedy the defects, taking into account expert opinion on child sex offenders and victims in South Africa.

Recommendations to Parliament
In sum the recommendations from the case were that the general position be that no children are included on the register, unless the state can prove that this is warranted based on evidence and the child should be given an opportunity to argue against inclusion. Further, a mechanism created for children already included to have their particulars expunged. Lastly, that similarities in the National Child Protection Register should be looked out for and amended accordingly.

Prof Skelton concluded, saying that there is a civil society working group that consists of children’s rights organisations which work with child victims and offenders, which would be keen to participate in the process around the drafting of the amendment bills.

The Chairperson said that he thought the decision of the court exposed the gap between law and society and that perhaps the approach of Parliament and the drafters of the legislation was too technical. He also wanted the humanities, particularly psychology and social work, to be involved as developmental issues with children are involved and unless these are understood, the Committee would not be able to draft a proper law. He also cautioned that limiting the time within which Parliament is to remedy the constitutional defects may lead to another bad law, because of insufficient consultation.

Ms K Litchfield-Tshabalala (EFF) questioned whether the criminalisation of children’s sexual activity indeed severs lines of communication, asking what this is statement based on and who did these studies. She also questioned whether children even know about the law and if the non-communication is not based on other cultural or social issues. She was concerned that the presentation does not offer any alternatives after suggesting decriminalisation. Further, why have an age limit if nothing is going to happen in consensual situations and how is the public perception combated that adolescent sexual activity is being encouraged. She felt it important that developmental sexual activity is defined, to cover any grey areas which may arise in the law.

Prof Skelton, on free communication and whether the law indeed limits this, said that during the trial expert evidence was led, including that of counsellors including an AIDs councillor. The nature of their work involves discussing sexual activity and if they have found out about sexual activity, they have an obligation to report the offence. This placed such persons in a precarious position, because they do not want efforts such as the roll out of HIV testing to lead to children being incriminated. The key difficulty is that as a sexual offence, once it is learned of, it becomes reportable and there was evidence led in court to demonstrate this problem. She continued that children do know about the law and although they may not know the details there is knowledge of it in the public sphere. She cited an example of a girl arranging a “kiss-a-thon” in defiance of the law, although she was unsure of the success of the campaign.

The Chairperson interrupted asking where the children learnt about the law and if they had, what percentage of South Africa could have done so.

Prof Skelton replied that they may have learnt it from websites or from each other. Further, that while exact numbers are not known, there seemed to be general awareness without knowing specific details.

Mr Mpumlwana said that perhaps there are some children who know, however this must be less than one per cent, and those that do live in urban areas, while rural children do not know laws generally, let alone one as specific as this.

Prof Skelton conceded that this is likely the case and continued with the question on why regulate the age of consent at all. She understood its true aim to be protecting children from adults. The aim of the provision was to deal with the situation where adolescents become offenders because of the age of consent. From the minutes of the previous Portfolio Committee which had deliberated the bill she saw an attempt to make the law more gender neutral. The chairperson had termed it “angry father syndrome”, which saw a tendency for boys to be charged, while “girls who may have consented get off lightly”. Therefore, it was decided that both would be treated equally and both would be charged. However, in the case, the Women’s Legal Centre and Tshwaranang Legal Advocacy Centre put forward that the charges had a far harsher effect on girls than boys.

Mr S Swart (ACDP) said that he recalled a finding in the Constitutional Court judgement about a lack of evidence being presented by the Department of Justice and Correctional Services and would like a response from the Department on this count. He said that there had been a lot of debate about how to protect the younger children in consensual sexual relationships and this had led to the building in of diversion and other measures as a form of deterrent. However, the concern was that where the older adolescent claims that the sexual activity was consensual, it forces the younger child to disprove this allegation. The aim was to protect vulnerable persons from the secondary trauma of having to disprove consent. He said the Court has found that this is not an appropriate deterrent and the Committee should respect this finding. This was a matter that would have to be investigated further, because the common aim of protecting the best interests of children is paramount.  He looked forward to the tabling of the bill and welcomed the Child Law Centre’s input in the deliberative process.

Prof Skelton built on her response to Ms Litchfield-Tshabalala, saying that the question is how the provision affects an actual rape. Where a girl accuses a boy under the age of 16 of rape, he can plead that it was consensual causing her to face a charge which an adult woman would not face, with the added implications. She was sure that this was an unintended consequence and that her opinion on how to best protect children was to allow the standing rape laws regarding adult women to apply. Mainly as these were capable of dealing with questions of consent during the trial.

Ms C Pilane-Majake (ANC) wanted an opinion from the other role-players represented in the meeting, including the National Prosecuting Authority and various departments, on the two judgements.

The Chairperson said that perhaps the law curriculum needs to reassessed. This was because if a law student has done no social science and therefore does not understand society, yet must make laws for society, there will be problems. Law cannot be made or function outside of society and this must be understood by all role-players in the legal sphere.

The Chairperson before asking the Departments represented to address the Committee as requested by Ms Pilane-Majake said the earlier point raised by Mr Mpumlwana on how many children know of the law should also be spoken to. Also, they should indicate to what extent the Departments, before tabling a draft bill, consult with relevant institutions. If this is not done then the Committee could be tempted into passing an unconstitutional law, which will be struck down. He encouraged them to do enough work before tabling the draft bill in Parliament.

Mr Pieter du Rand, DoJ&CS Acting Director General: Court Services, said the bill has been developed to cater for the recommendations of the Constitutional Court and is with the Ministry of Justice for consideration. The Department is seeking approval for consultation, which will duly take place, especially within the cluster, before the bill is submitted to Parliament.

The Chairperson asked to what extent organisations of social workers or psychologists are involved in the consultative process.

Adv Praise Kambula, DoJ&CS Chief Director: Promotion of the Rights of Vulnerable Groups, said that the process for the Sexual Offences Amendment Bill was widely consulted on. The bill had been in place for roughly ten years and both various departments and civil society were part of the consultative process. She conceded the insufficiencies of the consultative process and welcomed the identification of challenges with amendments to follow.

Ms Pilane-Majake said she had wanted clarification on why the law was the way it had been, as she was worried about poor quality legislation. What is important now is to remedy the defects along the lines that have been identified by the Constitutional Court.

The Chairperson asked to what extent traditional communities are consulted. Dr Skweyiya, when he was Minister of Social Development, convened meetings of queens and said that children growing up in traditional communities had been encouraged to play by adopting the various roles such as wife, child or husband. This had been part of normal socialisation and had not involved sex. These traditional communities must not have law imposed on them and may in fact have better solutions. With the majority of people in South Africa subscribing to African values, the Committee ought to follow the call of the African Union and find African solutions for African problems. Therefore, the notion of what consultation entails needs to be changed, including how it is conducted and with whom, but importantly there must be evidence of sufficient consultation before Parliament.

Mr Mpumlwana added that when the consultation is conducted in rural communities it is important that it is not conducted in a foreign language or with foreign concepts. South African history has seen a top down approach to things and this has often been adopted by non-governmental organisations, making it important that marginalised communities have input.

Ms Pilane-Majake said that there are two registers and would like an indication from the Department of Social Development on how it plans to incorporate the amendments into its own processes, to avoid falling into the same pitfalls. She was aware of other cases which reflected badly on the Act and felt it ought to be re-crafted to the point where it functions efficiently.

The Chairperson added that the production of bad legislation reflects poorly on Parliament. The bulk of the work is done by the Departments, before the bills come to Parliament for the fairly superficial public hearings where the Committee considers already formulated opinions. He emphasised that it is thus important for the Departments to properly consult on the bills before tabling, so that the Committee “is not lead into temptation”.

Ms Musa Ngcobo-Mbele, Director: Child Protection Department of Social Development, on the National Child Protection Register (NCPR) from the Children’s Act said at the instance of the Committee the Department is merging the NCPR with the National Sex Offenders Register, which includes looking into other issues which affect the NCPR. The Department is busy with a second amendment, for which consultations had started two years prior. The Department is considering all input received, including that received from the meeting. However, to her knowledge the NCPR did not include registering offences by children; rather it was offences by adults against children. 

Ms Pilane-Majake wanted an indication of when the merger is forecast to take place, because alignment of processes was important.

Mr M Maila (ANC) said as the Departments had indicated that processes for amendment are underway, how are they responding to the recommendations of the Constitutional Court.

Adv Khambula responded to the request for consultation with traditional communities. She said this will not be difficult, because the National House of Traditional Leaders (NHTL) is the co-opted stakeholder in the Department of Justice and Correctional Services inter-sectoral committee. The Department works closely with the NHTL, even on domestic violence matters.

Ms M Mathapo (ANC) commended the Department for its work with the NHTL, but she appealed that the processes be taken down to grassroots, because most rural people do not know of this law. To the Department of Social Development, she said the programme under Dr Skweyiya has stopped since he left. She appealed that the Department take this process forward, as it was an important opportunity for engagement with the mothers of the nation.

The Chairperson said that Mr Maila had asked what response the Department has made to the judgements, however he would have expected that this would be covered in the report to the Committee. The NHTL is mostly men and therefore the consultation will not speak to the mothers of the nation nor children who are affected by the laws. The Department should therefore do the grassroots consultation as encouraged, compile a report and deliver it to the Committee.

Ms Musa Ngcobo-Mbele, on the issue of the merger, said that the Department is looking at both pieces of legislation, particularly on what needs to be amended for the merger to take place. Further, it is preparing a report to be tabled in Parliament, which will indicate why the Department supports the merger and what it will entail. This is because the Children’s Act covers far more offences regarding children than the sexual offences covered by the Sexual Offences Act.

Ms Pilane-Majake said she was glad that the two departments were working together towards the merger.

The Chairperson said prevention is better than cure and the problem of children being sexually active or becoming sex offenders could boil down to a lack of parenting. Faith based organisations are concerned with building the characters of children. Organisations such as the National Inter-Faith Council of South Africa were available to be used as part of remedying the problem.

Annual Consolidated Inter-sectoral Report on the implementation of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007: DoJ&CS briefing
Mr Pieter du Rand, DoJ&CS Acting Director General: Court Services, said the report covers the period January 2012 to March 2013. Section 65(3) of the Act requires the Minister to table a report by each of the implementing departments, of which the report is a consolidated version. The reporting bodies are the Departments of Justice, Correctional Services, Social Development and the South African Police Service. Further ancillary contributors are the Departments of Women and Basic Education and Legal Aid South Africa. The DoJ&CS Director General chairs the intersectoral committee which coordinates the activities of the different departments relating to the Sexual Offences Act.

Adv Praise Kambula, DoJ&CS Chief Director: Promotion of the Rights of Vulnerable Groups, conducted the presentation for the Department and said it will focus on key areas for reporting and the challenges faced in the implementation of the Act.

Governance structures
Adv Kambula said that what is good is that there is now political accountability through bodies including the National Council on Gender Based Violence and Ministerial Advisory Task Team on the Adjudication of Sexual Offences Matters. Administrative structures include the Director General’s inter-sectoral committee, both provincial/regional and national inter-sectoral committees, and intra-departmental committees which deal with annual reports. The Case Flow Management Sub-Committee on Vulnerable groups is not functioning anymore, consequent to the shifting of judicial administrative functions to the Office of the Chief Justice.

The report gauges the performance of the Departments against the objectives and preamble to the Act, which include provision for specialised service provision to certain victims of sexual violence and eliminating secondary trauma to victims of sexual violence. Areas of legislative development and amendment include: the proposed alignment of the NCPR and National Register of Sex Offenders which will culminate in new legislation, the promulgation of empowering legislation for the designation of sexual offence courts and the National Prosecuting Authority has amended its directives to account for court decisions including Director of Public Prosecutions, Western Cape v Prins and Others.

Human Resources
Adv Kambula turned to human resources, saying that there is a need for an annual review for proper implementation of the Act. She continued, speaking to a table which compared the number of persons in key positions between the year reported and the financial year before this. The table also depicted the role played by the persons in the implementation scheme, department which they belong to and the title of their posts. An example of the statistics provided is the intermediaries involved in intermediary services for child witnesses, hired by the Department of Justice and Correctional Services which grew from 139 in 2011/2012 to 164 permanent staff and 48 ad hoc staff in the reporting period.

Physical Resources
Adv Kambula dealt with the table detailing physical infrastructure resources, which also included information on the physical resource, the service which it provided, the reporting department and the comparison between the reporting period and previous financial year. An example here are the one-way closed circuit television systems, which allow in camera testifying by victims, which declined from 335 in 2011/2012, to 322 due to the planned introduction of two-way close circuit television systems.

Training and Capacity building                                                                                                                                                                                                                                   
Adv Kambula said that sexual offences is an area where victims have special needs and staff need specialised training in order to provide the specialised services required. There is an emphasis along all departments to develop dedicated staff to deal with sexual offences matters, to ensure that victims who by definition have been violated are treated with appropriate dignity. The training has been conducted by the Departments of Justice and Correctional services and Health, as well as the NPA and SAPS. A highlight of the DoJ&CD’s training efforts have been to equip non-governmental organisations stationed at courts to have a common understanding of the approach to sexual offences and SAPS has trained detectives working in Family Violence, Child Protection and Sexual Offences Units to handle evidence to ensure it is admissible.

Public Education
Adv Kambula said that public education is very important, because it brings the law to the people and makes it a form of tangible protection from sexual crimes. This is also in an effort to spread knowledge about the law as a deterrent to prevent sexual offending. She said the DoJ&CD set aside R6 million for public awareness during the reporting period, throughout all provinces. The focus had mainly been on schools and communication to adolescents particularly regarding sections 15 and 16 of the Sexual Offences Act. The DoJ&CD was also concerned to combat adolescent pregnancy and following reports of high occurrences in Limpopo, this province was the targeted with 262 of the 278 schools campaigns run here. The total number of people reached by the DoJ&CD is in excess of 134 407.

Other department’s public outreach campaigns include the Department of Correctional Services’ correctional programmes for inmates reaching 9 233 offenders. The Department of Basic Education also saw success with the Stop Rape Campaign and Social Media MXIT campaigns targeting school children.

Criminal Implementation
Adv Kambula speaking to a table with detailed statistics said that 19 309 new matters were reported during the period of reporting and 20 421 cases were disposed of. The top charge was rape with 13 889, followed by statutory rape at 3412.

The Chairperson said that this is supposed to be a people-driven government and that there should be a balance between initiatives which government leads and those which communities lead. Otherwise, communities may become overly dependent on government. He cited the example of universities which have students studying social sciences who could be a valuable resource to the Department. Further, there are initiatives on the ground which are viable without any government support and why not support what people are already doing for themselves. On public education, he said instead of extraordinary programmes, why not use life orientation in schools for child education. He encouraged getting people to rely on themselves, rather than on government which can never have enough resources to provide all the services required.

Ms Pilane-Majake on the crime statistics for the Department, asked for confirmation that it had a total caseload of approximately 42 000 cases, taking into account both new cases and those brought forward. Further, why are there so many findings of not guilty and withdrawn charges. She sought an indication of their interactions for the purpose of seeing to South Africa’s international reporting obligations. Turning to page nine, she asked why the African Protocol on the Rights of the Women was not included under international obligations. Lastly, she wanted to know whether the Thuthuzela care centres are legislated for.

Mr Horn spoke to the table detailing the physical and infrastructural resources and asked what progress had been made since the reporting period, particularly on the implementation of the two-way closed circuit television cameras and new format of testifying rooms as these had been halted during 2011/12.

Mr du Rand said that he appreciates the approach suggested by the Chairperson and it will lead to better operation in the future particularly with communities. The suggestions regarding making use of existing community structures for implementation will be taken forward, but it must be borne in mind that the legislation is formalistic and has requirements for the Department to report on and activities it was to conduct. The reporting departments face challenges with the statistics, because there is a lack of interconnectivity between systems. This is being looked into and the DoJ&CD has instigated an integration of systems. This is an area where challenges are faced and representatives from the departments dealing with this are present to answer any concerns. He said that Thuthuzela care centres are not legislated for at present, however they form part of an internationally acclaimed management system model developed locally and implemented by the NPA.

Adv Khambule on the international reporting, said the Department could not list all the international obligations, therefore it used an etcetera to acknowledge all the instruments ratified by South Africa. The process for drafting the country reports is driven by the Department of Women, while the stakeholders at the meeting had input therein. Recent examples of reporting include the Convention for the Elimination of All Forms of Discrimination Against Women and the Convention on the Rights of the Child. On the success of the new physical resource models, these were developed by the task team as set up by the previous Minister of Justice. This model introduced a larger closed circuit television screen and introduced a monitor for the presiding officer to clearly watch the testimony, alleviating the need for intermediaries. It has been welcomed by various stakeholders. On the testifying rooms, these have been completely re-designed to be more child friendly and the Department has set up 26 of these, including the new closed circuit television systems.

Mr Swart appreciated the problems with reporting, but he wanted to know where the Annual Consolidated Inter-sectoral Report for implementation of the Sexual Offences Act for the period April 2013 to March 2014 which was due in March this year. Turing to the crime statistics presented he raised the problem of under-reporting of sexual offences, with an estimate of only one in nine rapes being reported to the police. Looking at the SAPS statistics for 2012/13 a total of 66 387 sexual offences were reported, while according to the NPA statistics: 7 092 cases finalised, 4 669 convictions. This is a major problem and the Department cannot merely consider the cases reported, because this could in fact be ten times that figure. The Committee needs to play its oversight role on the implementation of the legislation, in unison with other stakeholders, and ensure government departments are working properly. In order to do this properly the Committee required the 2013/14 Annual Report, which to his knowledge was still outstanding.

Mr Maila had a slight concern about the variety of instances of non-reporting and would like to know about efforts to encourage the reporting of sexual offences. Lastly, there are several programmes conducted by the departments where the Moral Regeneration Movement could be useful, such as the stop teenage pregnancy campaign.

The Chairperson said that if there is under-reporting and non-reporting then there will be no true oversight with neither the Committee nor the Department doing their work, resulting in the nation’s time being wasted. He emphasised that these are societal matters and not just governmental matters, therefore he appreciated the assurance that civil society will be brought on board. He asked if after the consultation which the Committee has suggested there could be a national conference to debate these issues. Further, that the Committee be provided with the draft legislation before it confronts it in the Committee, because 20 years into democracy Parliament cannot afford to be making bad laws.

Ms Pilane-Majake, said the Moral Regeneration Movement still exists and should be invited to indicate to what extent it can assist in processes of this nature.

The Chairperson asked the Committee Secretary to compile a list of the challenges identified by the Committee, to be given to the Department before it confronts the Committee in the future.

Mr du Rand said that what they are trying to indicate by having a consolidated report that there is greater interaction between the various departments. It must be acknowledged that there needs to be more community engagements and the DoJ&CD is in the process of co-opting civil society onto the Inter-Sectoral Committee. On the submission of the Annual Report, this has been submitted and he will ensure Members have copies. Lastly, the Department will compile a summary report of the issues identified, particularly on the statistics and other issues not covered. He thanked the Committee for listening to the briefing and welcomed future engagement with the Committee. Lastly, that before the Bill is tabled in Parliament the Department will make the bill available.

The Chairperson thanked the Department for the standard of preparation and said a good basis was laid for future interactions. He then declared the meeting adjourned.

Download as PDF

You can download this page as a PDF using your browser's print functionality. Click on the "Print" button below and select the "PDF" option under destinations/printers.

See detailed instructions for your browser here.

Share this page: