Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill: public hearings Day 5

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Justice and Correctional Services

24 March 2015
Chairperson: Dr M Motshekga (ANC)
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Meeting Summary

The core of the submissions are as follows:

Congress of Traditional Leaders of South Africa
The Congress was of the view that in line with traditional values children should not be engaging in sexual activities, before they are ready to do so. It however felt that a Bill was an unnecessary step to take, where there were institutions already in place such as parents and families who were capable of dealing with such problems. However, it supported the decriminalisation as this had never been the extent of the punishment implemented under traditional law.

National Inter-Faith Council
The Council’s submission, representing the views of various sectors of the religious community, was against any possibility of lowering the age of consent. It however supported the decriminalisation of consensual sex between adolescents. Given the confusion which existed in the council itself, it encouraged public education efforts aimed at clarifying the reason for the amendments and what they were aimed at achieving.

National Prosecuting Authority
The Committee had tasked the National Prosecuting Authority with answering three particular questions: what the impact criminalisation of consensual sexual activity has been and effectiveness of prosecution as a deterrent; challenges experienced in relation to the management of the National Sex Offenders Register, particularly the registration of child sex offenders; and its view on the amendments effect on its operations.

The first question was replied to with reference to the low number of prosecutions conducted under both the Immorality Act of 1957 and the 2007 Sexual Offences Act and the general experience of either dockets being withdrawn or the prosecution of a case being declined. The second question was answered by the fact that the National Prosecuting Authority is not responsible for the administration of the Register, which is the domain of the Department of Justice and Constitutional Development. However, as had been suggested by previous submissions, it was agreed that the responsibility of making representations towards the inclusion of an offender’s name in the register be the responsibility of the state. Lastly, the amendments were generally supported specifically including the ability for the Director of Public Prosecutions to delegate the discretion to prosecute under sections 15(2) and 16(2), because what types of cases are elevated to the Director of Public Prosecutions are currently dealt with in internal directives.

Department of Basic Education
The Department presented only part of its briefing, before it was asked to focus on the central question of decriminalisation and its effect on schools and the work of the Department. This was answered by saying that the Department believes in the principle of restorative justice and therefore would not support the criminalisation of consensual sexual activity. It also highlighted the various aspects of sexual health taught at the different stages of basic education.

Meeting report

The Chairperson said the public hearings had been extended to cater for all contributors, because the wisdom of the commentators was important to dealing with the contentious issue at hand. The submissions are therefore valued and the presenters should feel free to express their views. He assumed the commentators had been following the debate, he therefore only wanted to emphasise that the public perception that the Committee is concerned with lowering the age of consent below the age of 16 or condoning children having sex is incorrect. What was on the table was decriminalising consensual sexual activities between adolescents and inclusion of sex offenders on the National Register of Sex Offenders.

Congress of Traditional Leaders of South Africa (Contralesa)
Mr Zolani Mkiva, National Organiser: Contralesa, said he had been mandated by the National Council of Contralesa to express the views of Contralesa on the Bill.

Mr Manene Tabane, NEC Member Contralesa, said he would proceed directly to the views of Contralesa. This view is that when children are found engaging in sexual activity, corrective measures must be taken to discourage them from doing so. The disciplinary process ought to take the form of reprimand aiming towards rehabilitation. Minors should not be encouraged to engage in sexual activity, because this is abnormal in the age group under discussion. Therefore, Contralesa cannot support a Bill which seeks to encourage adolescent sexual activity. In its view sex is meant for adults, who are married and from the cultural point of view sex between children cannot be justified. In the African traditional culture the appropriate age for sex is not determined by a number of years, regardless the age of consent Contralesa would support is above 18, if not 21. As traditionally the age of consent is not dictated by numbers, the manner of determination varies among the different tribal groupings. An example of this is that in traditional communities in the Eastern Cape a male child would have to have gone through initiation before proposing to a girl.

Mr Tabane said presently society is battling with moral degeneration, having lost its moral compass. He was of the personal view that allowing the situation to continue, would be silently creating Sodom and Gomorrah.  He said we should encourage children to play African traditional games, because they make children focus, rather than engage in antisocial activates. They also give children a chance to grown up to the stage where they are then allowed to engage in sexual activity. It is a pity that Western influence has reached the point where such traditional games are not played by children anymore. It is clear that if the Bill is given the ‘thumbs up’ the victim will be the African child. If the Bill is passed it may create situations where old men are engaging in sexual relationships with 13 year olds, if the child consents. There is also the challenge of child headed households and such children will be vulnerable to such possibilities. Further this encourages teenage pregnancy and teenage parenting. If parents remain silent and allow legislation to play the role of parents, then what is the point of parenting? Contralesa believes that parents should be encouraged to take up the role they are meant to play and give direction to their children. If this is not the case then there will be regression in trying to build a morally upright society. As the majority of people in the country are Christian and the many others live under traditional leadership, then there is no real point in discussing this matter when there are more pressing things to be dealt with. 

Mr Zolani Mkiva, National Organiser: Contralesa, added that pieces of legislation should not be made which will end up suffocating the people and ought to be informed by what is happening on the ground. It is not good to see one state institution instructing another, because this subverts the law making process. In the past a similar situation has happened where the Constitutional Court instructed Parliament. Contralesa was concerned that it would again merely come to Parliament as a formality to authenticate a process which is questionable. The issue at hand is not one which requires a special law, as much as Contralesa agrees with decriminalisation. Families and parents should not abdicate their responsibilities and have Parliament and other state institutions take over their roles. Pieces of legislation such as these will destroy the family structure in communities, which is a solid base for society. Laws such as these will result in a situation where parents are left with no authority and children are outsourced to government institutions, which Contralesa believes is not African. What is needed is a reinforcing of the family structure and empowering parents to play the role which they have always played.

The Chairperson said the submission had indicated that initiation serves the purpose of preventing consensual sex between adolescents. However another view was expressed in a submission indicating that initiation leads to an increased interest in sexual experimentation. If the latter view is correct then it would mean that initiation does not serve the purpose. Secondly, it was said: traditional games could help, but western culture has prevented their practice. However, he could not see how western culture has gone into traditional communities to stop the games being played. Further, the Constitution protects indigenous culture and religion, meaning that traditional leaders are not doing their work. Just as religious groups teach their followers their practices and cannot blame traditional communities if they are not followed, similarly traditional communities cannot blame western culture for their systems collapsing. Moral degeneration may potentially be partially caused because traditional cultural systems are not being made to work. This places government in the situation of having to deal with things which would not be occurring had the systems been intact, causing it to pass a law criminalising consensual sexual acts between children. The Constitutional Court therefore had to pronounce on this criminalisation. He did not think the purpose of the law was to promote sex between children, but was merely a recognition of the fact that it does happen and if it does the criminal justice system should not be the route chosen to deal with a societal matter. He would like to hear what Contralesa is doing to prevent children from engaging in sexual activity at early ages. Government cannot be expected to use the criminal justice system to solve problems which parents ought to solve. There is no law which would allow an adult to have sex with a consenting child. Lastly, the Constitutional Court is not instructing Parliament. Due to constitutional supremacy, the Constitutional Court is tasked with ensuring that all laws are consistent with the Constitution and the judiciary has been tasked with this by the Constitution. If laws are not consistent with the Constitution, then the Constitutional Court is entitled to strike them down or refer them back to Parliament, and therefore there is no issue with the process. He concluded saying that he was not speaking for the House or ruling out anything the presenters have said, because they are entitled to defend their positions.

Mr Mkiva said traditional leaders have limited powers, but the situation in the country is that the content on national media is such that there is a pull towards eurocentricity. If people are bombarded with this on a daily basis, then there is not much which traditional leadership can do. This is the same as the orchestrated effort by the colonial state to promote Christianity, which has resulted in this relatively new phenomenon having such traction in South Africa with 70% of people subscribing to its doctrines 200 years on. The influence of the media is going to have the same effect and children will be influenced to act in the manner they currently do. Traditional leaders do their best, but they need to be empowered through their councils, so that they will be able to act. Particularly as there is contestation with civil society organisations whose views at times contradict the instructions of traditional leadership, which they have the right to do in a constitutional democracy. Contralesa believes there should be a role played by parents and families, given the space. If something cannot be resolved at the family level it should be escalated to a clan level and then to potentially upwards the leadership of a particular nation. This is the way traditional leadership has been trying to deal with these types of matters. On traditional games, he said this is not part of the curriculum and Contralesa would like to see a more African centred education. Therefore the syllabus needs to be looked into, rather than it be said traditional leadership is abdicating its responsibilities.

On traditional leadership not doing enough to prevent moral degeneration, Mr Tabane said before democracy there were state institutions which were very oppressive to black people such as the state intelligence and defence agencies. However post-democracy these institutions were not disbanded, rather corrective measures were put in place to make them suit the present situation. Similarly, apartheid corrupted traditional leadership, but they did not receive equal corrective measures and were not sufficiently empowered. Therefore, traditional leadership is struggling for control under a lack of resources and if they were resourced properly then it would have the ability to deal with the problems that have been raised. Particularly, as resources are the means to authority. On initiation, he said there is a myth that during initiation boys are told to “test whether their machinery is working”, which is not the case and traditional leadership is battling against this. This is another reason to capacitate traditional leadership to enable it to deal with such problems.

The Chairperson said he did not want to go into broader issues around transformation, aside from saying that he had attended the 2015 opening of the National House of Traditional Leaders where the President had urged traditional leadership to take the lead in transformation of the institution, by coming up with transformative measures. Therefore, the ball is in the court of traditional leadership if it seeks empowerment. Further, there is the Moral Regeneration Movement (MRM) which could assist traditional leadership. He did not think it would assist to blame Christianity, because the Constitution enjoins us to respect and protect unity in diversity and the Bill of Rights protects religious freedom. He would therefore advise going back to traditional structures aiming to build them, so that they may deliver what they are designed to do.

Mr S Swart (ACDP) said he did not see Contralesa as blaming Christianity, rather it was used as an example of western influence. Particularly as the submission had stated that as the majority of people in the country are Christian the issue should not be under consideration. He wanted to know from a traditional leadership perspective, how would consensual sex between adolescents of 12 to 15 be dealt with. The challenge is that there is currently a criminal law which has not been effective and has been struck down by the Constitutional Court because it is not effective at dealing with teenage pregnancy or HIV/AIDS. The judgment was clear that it was not about whether children should engage in sex, rather it dealt with the narrow issue of decriminalisation. Secondly, the age of consent remains 16 and therefore the example presented of an adult man having sex with a thirteen year old will still be statutory rape. This is why he would like to know what the customary position would be when adolescents are found engaging in consensual sex. Further, he understood that Contralesa agreed with not criminalising the act and this is what is presently at issue. He agreed, as a Christian, with the sentiment expressed and with the traditional values. However, the dilemma was the narrow issue of whether the criminal law should be how to deal with consensual adolescent sex. It could be correct that the families should be empowered to deal with this and perhaps a social development intervention is the answer with the state coming in as a last resort. He would like to know whether Contralesa agrees with this position, because that would mean they are basically on the same page. There have been many submissions from people who have not properly understood what the judgment has said. However the true concern is how to deal with children who are engaging in sex.

Mr Mkiva said indeed Christianity was not being blamed and traditional culture has been mixed with Christianity. It is an unfortunate situation when children are found engaging in sexual activity under the age of 16 and it becomes a scandal in the community. When it is discovered, then disciplinary steps are taken within the family, by talking with the children and punishing them in a manner in line with their age. This punishment is intended to reprimand so that the behaviour is not repeated. Where the family cannot resolve the issue, then it is escalated, potentially all the way up to the office of the relevant king. There is also the principle of containment, which means that the family is to keep the issue internal in order for others to not hear about it and try to recreate the practice.

Mr Tabane added that culturally there are programmes which are in place and which had been effective in the past, however due to the influence of the west these structures are disintegrating. There are things such as virginity testing, which girls undergo voluntarily and are taught lessons by older women discouraging them from engaging in sexual activity before they complete their education. These programmes are not well supported, because the children need money and transport to get to the locations where they are practiced, as they are held in certain areas. He had seen the participants in such programmes and he has seen the positive results. A challenge would be in child headed households, where there is no one to provide the money for children to travel to such gatherings to learn these lessons. However, such programmes are criticised for violating children’s human rights contrary to the voluntary basis upon which such programmes operate. Luckily the programmes are gaining popularity and the value of attending is growing.

The Chairperson asked, if seeing as these systems have been weakened, that the police should be allowed to arrest children who engage in sexual activity, have charges laid against them and sent to prison.

Mr Tabane said this is not what was being said.

Mr M Maila (ANC) said it should be agreed that an incorrect perception has been created that the Constitutional Court judgment has instructed Parliament to come up with legislation “to encourage children to have sex”. Therefore, all parties should work to correct this perception. The Committee agrees with Contralesa that children do engage in sexual activity and this is a societal matter which should not result in their being arrested. Unfortunately what is in the public arena is the perception that Parliament is creating legislation “which allows children to have sex” and this is not the case. It is therefore for South African society to take responsibility and ensure that children do not engage in activities which will lead to it becoming a Sodom and Gomorrah as has been said by the presenters.

Mr B Bongo (ANC) said having listened to the submission he felt Contralesa is generally of the same opinion as the Committee. He also agreed with Mr Maila, saying a joint effort is needed to combat the incorrect perception that Parliament is encouraging adolescents to engage in sex. What the judgment has indicated is that consensual sex between adolescents should be decriminalised, which in his opinion is a simple matter. The point of departure is that the age of consent is still 16 and therefore if it happens that persons aged between 12 to 16 engage in sexual activity, this should not be criminal. He therefore agreed with the submission which argued that before the criminal justice system becomes involved, it should be the responsibility of parents, families and communities. The submission also stated that the problem is a societal one, which is correct given that research shows that teenage pregnancy is still very high and the numbers attending the programmes spoken of are very low. Contralesa should therefore present how this matter could be dealt with through cultural and value based interventions. The Committee has received many submissions and it needs the assistance of Contralesa which is at the centre of where these issues take place. Therefore, he did not feel the submission was that far away from the position of Parliament and what was needed now is for the message to be taken out into communities.

Mr Mkiva welcomed the spirit with which the Members support Contralesa’s position and agreed with their proposals around reviving and supporting traditional activities which will aid in bringing the message to adolescents. Nothing needs to be re-invented; the structures exist and merely need concentrated support to encourage a value based approach. Contralesa is readily available to aid in this effort, under the leadership of the Committee.

The Chairperson said he supports the development of a programme as suggested by Mr Maila and felt this should be done in partnership with the MRM, because this is government funded.

Ms M Mothapo (ANC) asked for some information on the Induna programme which helps young girls to delay engaging in sexual activity. The submission had touched on the role that traditional councils play in this arena and would like further explanation on the programmes carried out by traditional leadership from council level all the way up to kings and queens, because she was aware that progressive measures are in place. Echoing her colleagues she wanted to bring to Contralesa’s attention that the Constitutional Court’s judgment does not per se reduce the age of consent.

The Chairperson said former Social Development Minister Dr Zola Skweyiya had introduced a programme which focused on queen’s structures at notional, provincial and local levels and he would like to know what had been done to support such structures. As Contralesa has lamented that it is not empowered, yet there are these structures which are aimed at doing exactly that with the assistance of the Department of Social Development.

Mr Tabane said Induna is an independent organisation which runs a programme focusing on the plight of young girls, which Contralesa participates in to promote these girls’ wellbeing. On traditional councils and leadership, he said there are programmes which speak to the present issue yet the question should perhaps be how effective these structures are in pushing forward these processes given the challenges faced. On collaboration with MRM, he said as much as this is done the councils will always have to deal with the challenge of resources.

The Chairperson said traditional council offices have fax machines, traditional leaders get salaries and they have cars. Therefore, he did not see what further capacitation could be required. If the existing structures are weak, then the question is what is traditional leadership doing.

Ms C Pilane-Majake (ANC) supported the sentiment that the Constitutional Court’s order only deals with the decriminalisation of consensual adolescent sex. Therefore, it need to be put out that the Bill does not seek to encourage sex between minors, rather it simply seeks to ensure that the law does not punish children for mistakes in a way which creates a stigma. The traditional perspective as brought by Contralesa is valuable, because child rearing and education has been raised by several other commentators. This could be through religious, cultural or school education aimed at encouraging children to grow normally.  In the court’s interpretation, sections 15 and 16 violates the rights of children and therefore is an impediment to child protection, development and safety. She said the various debates around virginity testing are important, because there are different opinions with some saying the practice is cultural and others saying it is an invasion of privacy. These debates should continue, so that a position on virginity testing can be agreed upon. If it is looked at from the position of the Women’s Charter on Effective Equality which emphasises choice, which is something which is dependent on age and when girls should be able to consent to the testing. The important point is that traditional leaders need to take the fore in such issues, not only around sex but also around drug addiction is a contributing factor. Active participation from traditional leadership needs to be seen trying to combat such concerns.

The Chairperson said no one in traditional communities can have a bottle store, without the approval of the traditional leadership. This is within the power of traditional leadership to stop and it ought to take the lead.

Mr L Mpumlwana (ANC) said sex used to be a civil matter in the African culture between parents if sex were to occur between adolescents and he wanted to know if this power has been taken away from parents by Parliament or Western influences. This has never been a criminal matter under traditional law, but is there anything which Contralesa feels could be added to the Bill.

Mr Mkiva said the power of families remains, however the Bill may have the unintended consequence of removing family authority. Contralesa feels that the family structure is still best placed to deal with this matter, which has never been criminal. Lastly, Contralesa feels that the step of having such a Bill is unnecessary and therefore it is difficult for him to contribute. As there are already means and protocols for dealing with adolescent sex and a Bill would have the effect of replacing these. If traditional councils which are under a legislative mandate can be empowered, then what is the need for new instruments to be created which will naturally displace those which came before? However, it is agreed that the act should not be criminalised.

The Chairperson said he felt that what is proposed in the Bill supports the position of Contralesa, because it suggests that the matter should not be criminalised. There is also a need to take collective responsibility for changing the perception of the public that adolescent sex is going to be allowed.

Mr Maila clarified that while Contralesa feels a Bill is unnecessary, the reason an amendment is being made is because there is an Act in place which criminalises the activity. This is the reason the present process is being engaged in.

Mr Mkiva asked what Act this was and said it should be brought to Contralesa to base the discussion on.

Mr Mpumlwana said a mistake was made in criminalising sexual engagement between adolescents, even to the extent of kissing under the Criminal Law (Sexual Offences and Related Matters) Amendment Act. This Act was challenged in the Constitutional Court regarding consensual sexual activity between adolescents. Therefore, there is agreement that it should not be a criminal offence.

Mr Bongo said there is a lot of opportunity for Parliament to move towards solving many of societal problems raised together with Contralesa. There is general agreement that consensual adolescent sex should not be criminalised and programmes need to be developed to ensure society moves forward.

Mr Swart was unsure whether the issue of virginity testing was going to be answered, but said there are contradictions in the age limits with the age of consent for that being 16, although a child can have an abortion from the age of 10 without parental consent. He agreed with Mr Bongo that on the central issue of decriminalisation there is a need to empower the traditional means which have been being used, rather than the criminal justice system.  

Mr Mkiva did not want to go into the issue of virginity testing, as it would take too long and the issue was only mentioned in passing. He concluded by thanking the Committee for the opportunity to express its view which is that consensual adolescent sex should not be criminalised.

National Inter-faith Council of South Africa (NICSA)
Mr Thamsanqa Mvambo, Secretary General of NICSA, said NICSA was an organisation representing the views of seven faiths represented in South Africa and he would be representing the views of the organisation. Upon receiving the call for comment the difficulty of getting religious leaders to debate this taboo topic was faced, however seeing as NICSA felt it had been under-consulted in the past it resolved to put forth an opinion. While there are some who do not even want to entertain the notion, the reality is that society is dynamic and changing. NICSA’s view is that as people of faith, the organisation is a custodian of morality and ethics in society; therefore this issue is of primary concern. Religions have similar codes of morality, but despite this the lesson which has been learnt is that regardless of the teaching of such moral codes, society will still engage in its own practices outside of religious institutions. He agreed that there had been broad misconception of the intention of the Bill and therefore, part of the response is based on this ignorance. To some the question of age was the main issue, but along the way it was realised that decriminalisation is the main concern. NICSA’s position is that South Africa is a society where moral decay is high and partly this was created by apartheid which disrupted communities and families. This created the social ills which we live under today. Further, it understands the need for the amendment of the present legislation. Believers hold the view that sex outside marriage is a sin, however it is recognised that societies evolve with new practices coming about. To NICSA, the age of consent should be 18 years old, although the Catholic members of NICSA had argued marriage should be the criterion. NICSA’s understanding of the Bill, perhaps grown from ignorance, raised the concern that the age of consent was being lowered. Looking at this Act and the Immorality Act 1957 which supersedes it, NICSA found that it was comfortable with the Act as it stands. Generally NICSA, with the understanding that the Bill does not intend to reduce the age of consent, supports the Bill. This is provided that the DPP has the discretion to prosecute or not. To propose a way forward, civil society must engage in public education and NICSA is willing to partner with Parliament. Especially, as people still do not understand what the Constitutional Court tasked the Committee to do.

Mr Bongo welcomed the submission and encouraged NICSA joining in being one of the many voices telling children that premature sex is wrong, but still should not be criminalised.

Ms Pilane-Majake said the submission is a step forward, because there had been a broad misconception presented by many religious groups that Parliament is legalising adolescent sex. It is encouraging that more and more people are coming to the Committee clear that the order of the Constitutional Court is really aimed at avoiding criminalising children who may engage in sexual experimentation.

Mr Swart said the challenge is explaining the difference between decriminalisation and legalisation to the public. It is therefore, important for the message to be presented that Parliament thinks that sex for adolescents is wrong and should not be encouraged. Many people would not understand the difference and even some Members had questioned the difference. However, criminalisation is not the appropriate response. The message should be clear that no one wants to send children to jail for engaging in consensual sex, rather families, community structures and NGOs should be strengthened to deal with the challenges faced. The fact that the girl involved in the Jules High School case had committed suicide had had a major impact on him, as a legislator involved in passing the Sexual Offences Act. These are the types of issues being grappled with, but it should be made clear that the age of consent is 16. While children will not be charged for engaging in sex, this does not mean they should be having sex.

The Chairperson said that his opinion was that moral laws should not be enforced through the criminal justice system.

Ms K Litchfield-Tshabalala (EFF) said it should be recognised that the biggest area of concern is rape by adolescents as opposed to consensual sex between them, because now it would be for a child to disprove consent where it is already so difficult for an adult woman to stand up in a court of law and say they did not consent. She however did understand why decriminalisation has to be done, but her concern remained.

The Chairperson said public education would be aided by organisations like NICSA and Contralesa engaging with the MRM, with a particular focus on representation for women. Further, while the Department of Justice and Constitutional Development deals with crimes already committed, but other departments such as the Department of Social Development deal with preventative measures. If a workshop could be held between stakeholders and government departments, then a programme could be designed for public education to nip such problems in the bud.

Mr Bongo wanted to correct Ms Litchfield-Tshabalala, because the issue before the Committee is sex between adolescents and not adult/child sexual intercourse, as this would constitute statutory rape.

Ms Litchfield-Tshabalala said the grey area which she was referring to is where a 12 year old has been raped by a 15 year old, they would still have to testify to the effect that consent was absent and prove this fact.

National Prosecuting Authority (NPA) briefing
Adv Bronwyn Pithey, NPA Advocate, said there were three issues raised for the attention of the NPA: the impact criminalisation of consensual sexual activity has been and effectiveness of prosecution as a deterrent; challenges experienced in relation to the management of the National Sex Offenders Register (NSOR), particularly the registration of child sex offenders; and its view on the amendments effect on its operations.

Adv Pithey said in terms of the present legislation, the NPA does very few prosecutions and the consequences can be very dire. Although diversion would be part of the prosecution process, the child would already be exposed to the criminal justice system. This is legitimate concern, shared by the Committee, of those working in the criminal justice system and child rights activists.  She noted that statistics have been submitted, of cases reported at Thuthuzela Care Centres representing half of all sexual offences reported. These statistics also only cover the past 10 months, which is within the period of the moratorium. The point of the statistics is to show how few cases are in fact taken through to prosecution and that there are many other ways of dealing with these cases, even where the case deals with adults involved with a child.

On the effectiveness of the legislation as a deterrent, Adv Pithey, said from experience it has been seen that this is not an effective deterrent. This is based on experience in courts based on the previous and current legislation, rather than research. Generally when cases of this nature are brought, the NPA, will decline to prosecute. Meaning either the South African Police Service has retracted the docket or the NPA issues a certificate declining to prosecute. At this point the child has already been exposed to the criminal justice system and the Constitutional Court has indicated that this is not the best solution.

On the challenges regarding the NSOR, Adv Pithey said that this is not under the administration of the NPA and Department of Justice and Constitutional Development is the custodian. The legislation in Chapter 6 of the Sexual Offences Act does not require the NPA to perform anything in terms of the register, aside from an obligation to raise the issue of inclusion on the register where the court does not make an order to that effect. She welcomed the opportunity to present on the legal procedure proposed in Clause 7 of the Bill. At present the onus is on the accused to make representations against inclusion on the NSOR. The NPA supports transferring this onus onto the state and if the state wants to have the details of an accused included in the Register the process should be instituted by the NPA. This has been proposed by some of the submissions to Parliament. If this were to be the chosen route, then the process would most likely take the form of an application with the NPA leading evidence on the matter. This could be covered in the pre-sentence report, before any accused is sentenced and the scope of the report is meant to cover issues of reoffending and the appropriateness of certain sentences. If the above is compared to evaluations done under section 11(3) of the Child Justice Act dealing with assessment criminal capacity, enormous practical problems have been experienced with securing psychologists to do these reports and even where evaluations are done courts battle to apply them.

Adv Pithey said the views on the amendments, aside from the issues around the register, are that the NPA is in support of the amendments. On the delegation of the discretion to prosecute, under sections 15(2) and 16(2) acknowledging the concerns raised by certain submissions that the decision should rest with the Director of Public Prosecutions (DPP). This raises the general question of what types of cases are elevated to the DPP, because at the moment guidelines on this are contained in the NPA directives. These directives indicate that child murders, trafficking cases and child rapes involving violence are dealt with by the DPP. The concern is are all cases involving children, not only sexual offences, going to be referred to the DPP and what would differentiate a 16 and 17 year old. Therefore, the NPA would argue that the guidelines for referral to the DPP remain in the directives, leaving it an internal decision.

Mr Swart was glad that the NPA had clarified that few instances of prosecution are being dealt with on this issue. Unfortunately, the Act became known as ‘the kissing Act’ and while the mistake is admitted this is an undermining of the good intentions of the Committee in passing the Act. Obviously the NPA would never prosecute for kissing, because of the maxim de minimus non curat lex.  He asked if the NPA had looked at the issue of competent verdicts and would like to know what the implications are for the Act itself. On the issue of consent and the question raised earlier by Ms Litchfield-Tshabalala, it was his view that many rape cases are not brought to court, because of the secondary trauma of having to disprove consent. Would the NPA agree that this is an unfortunate consequence of the Constitutional Court’s judgement? Conversely, where the absence of consent is not proven, then the complainant is now liable to be charged, although he doubted whether this is likely. He would also like the NPA to touch on social development intervention, such as referral for a children’s enquiry, as is done in other foreign jurisdictions many of which do criminalise consensual adolescent sex.

Adv Pithey, on the competent verdict, said in any rape case the state must prove all the elements and where the NPA has not been able to prove the absence of consent then where the case involves adolescents there is the competent verdict under section 15. If the complainant during the course of a rape trial conceded that the sexual activity was consensual, this would be self-incrimination leading to the potential of a charge. If absence of consent is not proven and the competent verdict relied upon, then the NPA has not proven its case and is essentially using the back door to secure a conviction.

Mr Swart clarified that he agreed where the complainant concedes consent, then there is no need for a competent verdict. However, due to whatever reason the absence of consent is not proven, then it would be possible to fall back on the other elements for a competent verdict.

Adv Pithey replied that as she understood the scenario, where there is a rape claim and if section 15 is a competent verdict then essentially it is being conceded that a rape complainant consented. Another concern would be that where the absence of consent cannot be proven, then why should this only apply in the set age gap. Why should it not apply to a 20 year old?

Mr Swart pressed the issue saying that where a 20 year old engages in sexual penetration with a 13 year old, then the competent verdict of statutory rape could apply where consent falls by the wayside. This was the aim when the Bill was drafted, to cater for the situation where consent cannot be disproven.

Adv Vuyokazi Ketelo, NPA  Advocate, commented on societal interventions, saying this is what the Child Justice  Act was geared towards. The main purpose of that Act is to ensure that diversion occurs where children have committed offences. However, there are requirements which must be met before diversion is an option. One of these is that the child must acknowledge that they have committed a wrong, if this is not done, then normal court processes will follow. Although part of a sentence could be that diversion must be used, this undermines the purpose of a diversion having already exposed the child to court and a criminal record. Therefore, the social development interventions are catered for under the Child Justice Act, which gives leeway to give the child an opportunity to proceed with their lives.

Adv Pithey said she understood what was meant regarding foreign jurisdictions; the problem with criminalising it in this manner is that it is still saying that sexual conduct between 12 to 16 year olds is wrong. While the judgment and some of the submissions are to the effect that it is part of a normal developmental process. If it is seen as problematic then there are processes to refer children to the children’s court for a children’s enquiry and to the Department of Social Development for other interventions. It is troubling to say that the act is not criminal, but you will still be criminalised but not sent through the criminal justice system.

Ms Litchfield-Tshabala wanted the opinion of the NPA, in layman’s terms, on whether with decriminalisation, there will be a need to disprove consent as is done in a normal rape case.

Adv Pithey replied that at the moment, even with sections 15 and 16, regardless of the age of the complainant where a charge of rape is laid, the complainant would have to testify in court, potentially using the protective mechanisms available. Therefore, rape complainants, who are minors, having to testify in court - this is not a consequence of the present legislation.

Department of Basic Education briefing
A representative of the Department of Basic Education said there were three areas which the Department of Basic Education (DBE) was asked to respond on. Firstly, on the prevalence of sexual activity between children in the targeted age group. He said the Department does not have such data presently. Although there are school based incident-reporting registers, the actual level of reporting is low. The DBE, in an attempt to solve this problem, has populated the South African school administration and management system and the learner unit tracking system has been introduced. He moved on to the DBE’s role in providing guidance around sexual health and development. The approach chosen is to focus on the promotion of human rights, underpinned by the Constitution. The curriculum is based on the human rights approach, including attention paid to gender based violence and sexual offences. Advocacy and awareness raising is key to a human rights approach. To this end, the DBE has several programs which coalesce to provide a comprehensive response to gender based violence. This has been institutionalised across all grades through the Life Orientation curriculum. Examples include guidelines developed in response to the high incidence of sexual harassment in schools, supported by a Bill of Rights and Responsibilities which gives corresponding responsibilities to the rights in the Bill of Rights. This is further supported by a teacher training manual providing training and activities to enable the teaching of the Bill of Rights. This has been supported by various departments and stakeholders in the education sector.

The Chairperson interrupted suggesting that the submission focus more on what the amendment seeks to do, decriminalising adolescent sex and whether this will cause problems in schools.

The DBE Representative said the DBE works on a restorative justice approach and therefore criminalising children would not be the route to take, rather the DBE would support working holistically and developmentally to support learners where they are engaging in sexual activity. Therefore, criminalisation would not be the appropriate response.

Mr Bongo said the position of the DBE has not been presented. He asked that seeing as decriminalisation is supported, what other interventions would the DBE put in place. Children themselves have made submissions to the effect that Life Orientation does teach about sex, but only to the extent of discouraging sex because it can lead to HIV or other sexually transmitted diseases.

The DBE Representative spoke to a table which highlighted the path of sexual education throughout the four phases of basic education through the Life Orientation. This table showed that at the foundation phase, personal and social wellbeing is taught through a focus on bodies and keeping them safe.  In the intermediate phase, personal and social wellbeing is expanded by lessons around social responsibility, environmental responsibility, respect for own and other bodies, child abuse, age and gender and HIV/AIDS education. In the senior phase, the development of the self in society is taught through lessons around puberty, the concept of sexuality, sexual behaviour and health, common diseases and HIV/AIDS, decision making and health. In the FET phase, the development of the self in society is expanded on through lessons on changes towards adulthood, decision making around sexuality, relationships and their influence on health and wellbeing, gender roles and their effect on health and wellbeing, life skills required to deal with change as part of on-going healthy choices. Although, this does not detail the DBE’s specific position, these matters are addressed through the curriculum which is the basic point of departure for the schooling system.

The Chairperson said Mr Bongo had said children are pointing out the inadequacies of the curriculum and this raises the question of how much children are allowed to speak for themselves.

The Department of Basic Education Representative said hearing the voice of children is a priority in the Department and this takes place at several levels within the Department.

The Chairperson said Mr Mvambu had proposed public education and with a significant portion of the public in schools, the DBE has a responsibility to contribute to this public education.

Mr Swart raised the issue of the affidavit in the Teddy Bear case court proceedings from several headmasters, who stated that the decriminalisation will make the task of preventing children from engaging in sexual activity a nightmare. This seems to be at odds with what the DBE has presented and he felt this was important to bring to the attention of the Department. While the Constitutional Court has made its order and the deterrent effect of criminalisation has not been well established, but what is unknown is what the impact of decriminalisation will be and this is why the Committee is at pains to say that decriminalisation does not mean children should engage in adolescent sex.

The Chairperson said the moral decay spoken of, could be an indication of the underdevelopment of society and the Department of Social Development and the DBE should be taking the lead in developing society. Therefore, the Departments should perhaps be invited back to the Committee.

Ms Pilane-Majake said the DBE is an entity which must be at the head of educating society about sex among children, because if a society is to be free from adolescent sex then it has to take up this responsibility. Looking at sexual relations between children, the majority of this happens at school and a further problem is learner/teacher sex. Speaking to the Bill of Responsibilities, she asked whether the Department makes use of the Charter of Positive Values from the MRM, because such instruments could aid. It is good that the DBE is supporting the decriminalisation under the Bill. The vulnerability of especially girl children, as raised by several submissions, is something which will continue to be looked at in crafting a Bill which lives up to the order of the Constitutional Court.

The Chairperson urged the DBE to partner with organisations such as Contralesa and NICSA to help deal with problems in schools and in the design and implementation of programmes  such as the Bill of Responsibilities.

Section 57 Amendment Option
Adv Lawrence Bassett, State Law Advisor Department of Justice and Constitutional Development, said the Department of Justice and Constitutional Development had been asked to look into the option of raising the age of consent to 14 or lowering the age to ten and whether this would be contrary to the Constitutional Court judgement. He said the Department has prepared a short document which introduces a potential amendment to section 57, dealing with admissibility of consent, and also outlines consequential amendments and potential implications of the option. This was not necessarily the Department’s position, but it is a new line of thinking and would have to be consulted upon. He encouraged Members to look through the document, in anticipation of a presentation the following day. He understood that the Community Law Centre had also drafted a similar option and he wondered if the two have a common thread.

The Chairperson said it should be agreed that the Department present on the document the following day and perhaps it should be sent to other stakeholders, as a further option arising from the public submissions process.

Ms Pilane-Majake said it would be a good idea to have the proposal sent to other stakeholders.

The Chairperson declared the meeting adjourned.

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