The Committee firstly considered the draft Committee Reports detailing the Committee's recommendations on the budget votes of the Department of Correctional Services (Budget Vote 18), the Department of Justice and Constitutional Development (Vote 21), and the Office of the Chief Justice and Judicial Administration (Budget Vote 22).
In relation to the Department of Correctional Services, the Committee suggested that the point that the Committee had questioned the accuracy of information must be amplified, to reflect that it was only some of the information that was questioned. Members wanted a recommendation that the Committee must be provided with detailed information on how the Department was planning to provide effective and independent oversight on the treatment of inmates, and the conditions of incarceration. It was suggested that the Committee should request the law advisors from the Department and parliamentary law advisors to look at the Constitution on the matter of independence and accountability of state agencies. The report was adopted, with reservations being noted by the DA Members.
The draft Report on the Department of Justice and Constitutional Development highlighted as a concern that Indigenous African Law was often not catered for and the three systems of English Common Law, Roman-Dutch law and African Law should be accorded equal respect, provided all of them were consistent with the Constitution. One Member asked that initiatives to promote multilingualism in courts, especially the use of indigenous languages, should be put under Committee recommendations. References to reviews of prosecutorial decisions were deleted. Members indicated that the Committee could only note the progress that had been made in ensuring that those who are involved in xenophobic attacks are prosecuted and removed inconsistent language. One Member wanted a sentence to be inserted into the Report to clearly articulate that the Committee had not been impressed by the Strategic and Annual Plans of the Public Protector, and the fact that recommendations in the Budgetary Review and Recommendation Report (BRRR) had not been implemented. The DA and ACDP strongly objected, and said that if this was inserted, they would not support the Report. Other institutions such as the National Prosecuting Authority (NPA) and Special Investigative Unit (SIU) had not been asked to report on outstanding questions, and the Public Protector had made it clear that she had responded in writing to outstanding questions, and asked that those must be made available to Members. The point was made that there was already a public perception of a witch hunt against the Public Protector and it was dangerous to insist on greater reporting by this body than others. One Member suggested that time frames should be stipulated to all entities for information outstanding. The Report was adopted by the majority of Members, with the DA reserving its position, and the objections of one ANC member to the reservation were not entertained by the Chairperson, who pointed out that any party may reserve its rights.
The Committee turned to the draft Report on the budget of the Office of Chief Justice and Judicial Administration, noting that the Committee would still consider the outcomes of engagement with the Chief Justice and representatives of the judiciary. It was noted that there seemed to be political unwillingness to implement a Memorandum of Understanding between the Ministry and OCJ and the Committee would request the Ministry for a progress report. The Report was adopted, with the DA reserving its position.
The Parliamentary Legal Advisers briefed the Committee on the current position with the Criminal Law (Sexual Offences and Related Matters Act) Amendment Bill. The Constitutional Court had found some provisions to be unconstitutional and requested Parliament to amend the Act by April 2015. Parliament had not met that deadline, and had applied to the Court on 2 April for an extension, with the matter being heard on 8 May, when judgment was reserved. However, the Court had expressed its view that extension requests would be considered very sparingly, had voiced concern that it took so long to bring the amendments and this would count against Parliament in any future instances. Members agreed with the Court's reservations and said the Committee must find out why it had taken Parliament so long to bring the matter to the Committee, and why it took the Executive 14 months to table the Bill also.
The Department of Justice and Constitutional Development outlined the content of the Bill, which was primarily intended to ensure that children between 12 and 16 would not be prosecuted for engaging in consensual sexual acts with each other (provided conditions around age were met), and to give presiding officers discretion whether to order that the particulars of children engaging in such acts should be included in the National Register for Sex Offenders. It also provided for a procedure for removal of some names, on application, from the National Register and expungement of some records. The amendments to section 15, 50, and 51, the long Title and Index of Act 32 of 2007 were set out. Members suggested that the Committee should already be working on the Bill now, not waiting the Constitutional Court's decision, and should alert the NCOP Select Committee to the need to prioritise this Bill. They should look at other provisions in place under the Child Justice Act to avoid duplication. The Committee would still need to deliberate further.
Committee draft Report on Department of Correctional Services Budget Vote 18
Mr W Horn (DA) indicated that it was highly unsatisfactory that Members had only received the soft copies of the Committee’s draft Reports (the Report) the night before the adoption, as there was little time to thoroughly interrogate the Reports and this made a mockery of all of the process that the Committee had gone through during the budget preparation cycle.
The Chairperson said the complaint of Mr Horn had been noted but the Committee was dealing with two departments, which meant that the workload for the Committee Section was an issue. The documents had only been completed on the previous day.
The Chairperson wanted to put it on record that the Reports had been phrased in as neutral a manner as possible. They had been drafted by the Committee Secretary, and were based on the deliberations. They were not reflective of the views of any political party.
Mr S Swart (ACDP) pointed out that there was a numerical error in point 5.2 on page 4, as the allocated budget of the Department of Correctional Services (DCS) was approximately R20.618 billion and not R20.617 billion and the budget was projected to increase by R895.8 million from the R19.721.1 billion.
Mr Horn pointed out that there was a similar numerical error in point 5.1 on page 5 as the Justice, Crime Prevention and Security Cluster (JCPS) cluster was expected to receive approximately R157. 535 billion.
Mr V Smith (ANC) suggested that in point 8.1.1 on page 9, under "Committee Observations" the sentence should be rephrased as: “The Committee questioned the accuracy of some of the information contained in the APP and the Strategic Plan”. As originally worded, it sounded as if the Committee had questioned the accuracy of the entire plans that had been introduced before the Committee. It was also suggested that the last sentence on the same paragraph should be deleted, as it assumed that the Committee had suggested that the Department had misled the Committee on the information that had been provided.
Members agreed with the suggestion.
Ms C Pilane-Majake (ANC) supported the replacement of the word “unreliability” to “inaccuracy” in point 8.1.1 on page 9 as the Committee only questioned the accuracy of some of the information that had been presented by the Department.
The Chairperson emphasised that Members must pay particular attention to the recommendations that had been made by the Committee, and those that still needed to be added.
Mr Swart suggested that the phrase “the budget does not speak to the rehabilitation and social integration” in point 9.1 on page 12 should be replaced by “the budget does not adequately address the rehabilitation and social integration”
Members agreed with the suggestion.
Mr Smith recommended that the Committee should be provided with detailed information on how the Department was planning to provide effective and independent oversight of the Department of Correctional Service (DCS) treatment of inmates, and the conditions of incarceration.
The Chairperson mentioned that the idea of independence also kept being raised by different agencies. Independence cannot be interpreted without reference to accountability and this then becomes a matter of the interpretation of the Constitution. It was suggested that the Department should request the law advisors from the Department and Parliament to look at the Constitution on the matter of independence and accountability of state agencies.
Ms Christine Silkstone, Committee Content Advisor, stated that there was information in the Kader Asmal report regarding the independence and accountability of state agencies.
The Chairperson agreed that the Committee Members should be competent in the interpretation of the Constitution, so as to ensure that recommendations that had been made by the Committee were not contradictory to the Constitution. It was suggested that perhaps the Committee should have a workshop on the issue of independence and accountability of state agencies.
Ms Pilane-Majake supported the idea of having a workshop on the issue, but cautioned the Members that the Kader Asmal report had never been adopted by Parliament.
The Chairperson responded that this was a good caution, but the process would also assist the Parliament to make a decision on the possible adoption of the report.
The Report was moved and seconded.
Mr Horn wanted to make it clear that the DA had reserved its position on the report.
The report on the Correctional Services Budget Vote was adopted by the majority, with reservations noted.
Draft Committee Report on Department of Justice and Constitutional Development Budget Vote 21
Ms Silkstone indicated that there was a typographical error in point 2.1 on page 1 under Method as there was supposed to be a comma after Constitutional Development, to separate the two departments.
Ms G Breytenbach (DA) indicated that the figure of 100% access to the Small Claims Courts on page 9 was inaccurate; she could not recall the exact figure but the Committee had noted that the figure was unsatisfactory.
Ms Silkstone said that this was a figure that had been provided by the Minister, but she would do an overview to check the accuracy of the figure and then it could be adjusted to the reasonable figure.
The Chairperson reminded Members that the Minister had said there was "almost 100% access" to the Small Claims Courts and the distribution of courts could tell the Members about the validity of the figure.
Members suggested that the figure should be looked at and readjusted if inaccurate, as it was important to use statistics that were certain. The matter should also be dealt with in the Committee recommendations.
Ms Breytenbach corrected that Mr M Nxasana was not an advocate, but an attorney.
Members agreed to this correction.
Mr Swart stated that there was an omission of the word "billion" in point 10.7 on page 17, as Legal Aid SA had been allocated R1.58 billion in 2015/16 compared with R1.57 billion in the previous year.
Mr Horn mentioned that there should be a broader discussion around the issue of transformation of the legal system to meet constitutional imperatives, as captured in point 14.1 on page 26. There was still contestation on the use of (English) Common Law and Roman-Dutch Law, and the consideration of Indigenous African Law.
The Chairperson stated that South African was a country united in diversity and that diversity meant there were also people who came from (English) Common Law and Roman-Dutch Law and Indigenous African Law backgrounds. The Committee had pointed out that those from the Indigenous African Law were not often catered for and the three systems must be shown equal respect, provided all of them were consistent with the Constitution.
Members agreed with the suggestion.
Mr Bongo suggested that in point 14.5 on page 27, the point about initiatives to promote multilingualism in courts, especially the use of indigenous languages, should be put under Committee recommendations.
The Chairperson agreed with the recommendation. He stressed that people needed to access justice in their own language, especially if those languages were official languages. He added that this should not be limited to courts, but extended also to other services like social workers and psychologists.
Members agreed with the recommendation.
Mr M Maila (ANC) stated that in point 15.1 on page 32 it was not clear whether the Committee was looking at the prosecutorial review, or the conduct of the actual prosecutors.
The Chairperson said the Committee would need to elaborate on the issue, agreeing that it was not clear. The Committee could not be reviewing the prosecutorial decisions. He suggested that the whole sentence, starting from “review of prosecutorial decisions and a complaints management mechanism” should be deleted.
Ms Silkstone said that there was a repetition in 14.13, 14.14 on page 31 and 14.15 in page 32 and suggested that all those points should be amalgamated. All dealt with state legal services.
The Chairperson expressed disappointment that the editorial work was being done in the Committee, as these errors should have been picked up in advance.
Mr Swart noted that there was a typographical error in point 15.5 on page 33, in the fourth paragraph, as the word “both” should be deleted.
Members agreed with the deletion.
Ms Breytenbach pointed out that the Committee could only note the progress that had been made in ensuring that those who were involved in xenophobic attacks would be prosecuted. The Report should not use the phrase “congratulates all the role players” for only one prosecution, as set out in point 15.6 on page 33.
Members agreed with the suggestion.
Mr Bongo said that point 18.1 on page 37 needed to be rephrased, as the Committee was not impressed by the report of the Public Protector.
The Chairperson suggested that the point made by Mr Bongo should be placed in another paragraph instead of rephrasing point 18.1.
Mr Bongo agreed with that, as long as this Report made it very clear that the Committee was not impressed by the report of the Public Protector, which had failed to consider the recommendations that had been made by the Committee in the Budgetary Review and Recommendations Report (BRRR).
Mr Swart interjected and said that if the rest of the Committee were to agree with Mr Bongo, then he could not support the Report. Other institutions like the National Prosecuting Authority (NPA) and Special Investigative Unit (SIU) had not been asked to report on outstanding questions, and the Public Protector had made it clear that she had responded in writing in January 2015 on the outstanding matters.
Ms Breytenbach also added that she would not support the Report if the point that had been made by Mr Bongo was accommodated. She requested that the Committee be given the responses that had been provided by the Public Protector. It was a generalised statement to claim that the Committee was not particularly impressed by the Public Protector’s report, as the DA Members were impressed by the report.
The Chairperson responded that he had not received the written responses from the Public Protector.
Mr Bongo insisted that the Committee really needed to insert a sentence which would clearly articulate that the Committee was not pleased by the Strategic Plan 2015/16 and APP report of the Public Protector.
Mr Swart indicated that his party would not support the suggestion by Mr B Bongo (ANC) that the Committee was not entirely satisfied by the report of the Public Protector.
Mr H Redelinghuys (DA) also rejected the recommendation to insert a suggestion that the report of the Public Protector was incomplete. There was a public perception that the Public Protector was being singled out and targeted, and it was for the public to decide whether that perception was true or not. The suggestion that the Public Protector must brief the Committee on outstanding matters, while no such suggestion had been made to other institutions, was inconsistent and it would further reinforce the perception that there was a “witch-hunt” against the Public Protector. The Office of the Public Protector was the only institution that had been requested to submit a quarterly report on how the Office was addressing the audit findings
Ms Pilane-Majake stated that the issue must not be politicised, as there were other entities that had been requested to produce their financial statements and they had been congratulated when the audits had improved. This was not a matter of favouring one entity over another.
Mr Horn stated that he was interested on hearing whether the Public Protector had responded to the matters that had been raised in the BRRR, as she was certain that she had sent the written responses to the outstanding matters raised. If the point of Mr Bongo was to be accommodated in this Committee Report, then it must also be stated that some Members felt that the attitude of the Chairperson and the majority of the Members towards the Public Protector clearly indicated bias against Adv Thuli Madonsela.
The Chairperson suggested that there was no need for Members to bring their parties' political views on the matter. The Office of the Public Protector was established by the Constitution of the country and all the political parties had to respect the Chapter 9 institutions, including the Office of the Public Protector. The matters should be looked into their own merits or demerits. Robust engagement with the Office of the Public Protector did not in any way indicate that there was a “witch-hunt” against Adv Madonsela.
Mr Swart said that the Committee needed to be consistent in addressing matters. According to the BRRR the Committee had asked the Human Rights Commission (HRC) for the report on the information regulator, but this was never given. There had been no request to that institution for the submission of the outstanding responses.
The Chairperson promised to get the responses from the Public Protector regarding the outstanding matters. The Committee would not want to perpetuate a deliberately created perception by the press-media that there was bias shown against the current Public Protector.
Mr Bongo noted that the phrase, in point 18.3 on page 37, reading: “The Committee is unable to express an opinion on the issue of additional funding” needed to be removed, as the Committee had already expressed an opinion on the matter. The Committee had indicated that the budget of the Office of Public Protector had been increased by R15 million, and yet it was not explained how that budget would assist the Office.
Ms Breytenbach disagreed with that assertion, as the Committee had been provided with information on how the allocated budget of the Office of the Public Protector would be spent.
The point of Mr Bongo was not accommodated.
Mr Redelinghuys requested that there should be an insertion of “maintenance of integrity and independence of the Public Protector” in point 18.1 on page 37.
The Chairperson indicated that the point made by Mr Redelinghuys had already been highlighted in the portion dealing with the Constitution of the country.
The Chairperson announced that the latest correspondence showed that the Public Protector had responded in the previous day regarding the outstanding matters that still needed to be addressed, and the report had already been circulated to the Members.
Ms M Mothapo (ANC) suggested that the word “but”, in the first sentence in point 18.5 on page 38, should be deleted and replaced by “with”.
Mr Bongo added that the second sentence in point 18.5 on page 38 should be rephrased to read as: “The Public Protector received an unqualified audit opinion in 2013/14 but with emphasis of matters that had been identified by the Auditor-General” (AG).
Members agreed with the insertion.
Mr Swart wanted the Committee to put more emphasis on the provision of time frames by the South African Human Rights Commission, for the transfer of its Promotion of Access to Information (PAI) function to the Information Regulator. It was correctly captured in point 19.6 on page 39, as the Members had asked for a written response on the matter. He suggested that the Committee should write letters to each institution requesting information on outstanding issues and this should be the case with the BRRR.
Members agreed with the suggestion.
Ms Silkstone recommended that the Committee should also stipulate a deadline for the entities to submit the outstanding reports or responses, as this used to work in the past.
Ms Pilane-Majake also added that there should be an addition setting out what would be done when the entities had not responded to the stipulated deadline.
The Chairperson responded that the entities should be given the benefit of the doubt, and it was not useful to think about punitive actions at the moment.
Members moved for the adoption and seconding of the Report.
Ms Breytenbach wanted it to be clearly stated that the DA had reserved its position on the Report.
The Report of the budget of the Department of Justice and Constitutional Development was adopted, with reservations.
Mr Bongo expressed disapproval of the fact that the DA Members had participated in the deliberations but by the end of the process the report had not been unanimously approved, as this looked like a waste of time.
The Chairperson reminded him that it was the democratic right of any person or party to reserve the position on the adoption of a particular report, and this was not the first time this had happened.
Committee’s draft Report on the budget of the Office of Chief Justice and Judicial Administration Budget 22
Mr Swart highlighted that in point 5.2 on page 8 under Committee’s observations, there should be an addition of a phrase reporting that the Committee would consider the Report on the outcomes based on the engagement with the Chief Justice and representatives from the judiciary, to discuss matters of common concern.
The Chairperson stated that there was a Memorandum of Understanding (MOU) that had been signed between the Ministry and the Office of the Chief Justice, and what came out of the engagement was that there appeared not to be political willingness to implement that MOU. The Committee should request the Ministry to provide a progress report on the implementation of the agreement with the Office of the Chief Justice (OCJ).
Members agreed with the suggestion.
Mr Bongo recommended that the Committee should delete the third sentence in point 5.1 on page 9 which read: “The Committee notes that the Minister has indicated his intention to hold a colloquium towards the end of the year to discuss issues of accountability”.
The Chairperson agreed that the Committee did not have any power to amend the government programme and therefore the sentence should indeed be deleted.
Members agreed with the deletion.
Members moved for adoption and seconding of the Report.
Ms Breytenbach stated that the DA had also reserved its position on this Report.
The draft Report on the budget of the Office of Chief Justice and Judicial Administration was adopted with reservations, noting that it still needed to be discussed in caucus.
Criminal Law (Sexual Offences and Related Matters)Amendment Act Amendment Bill: request for extension of time period to effect amendments
The Chairperson reminded the Members that the Committee could not meet the April deadline imposed by the Constitutional Court, for the amendment of the Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill (the Bill), and therefore there was a request for extension of the time period to 5 August 2015.
Adv Nathi Mjenxane, Parliamentary Legal Adviser, mentioned that the application of the Committee for the extension of the time period for the amendment of the Bill was brought through the State Attorney to the Constitutional Court. The Court dealt with the matter on 02 April 2015, at a time when it was about to go into recess. A proposal was made that Counsel should return on 07 May for a hearing on the request for extension of the deadline. The arguments were put before Court on the 07 May. It was highlighted, during the hearing, that the Constitutional Court would only grant extension requests very sparingly or reluctantly as the Court did not want to create an impression that its orders could be varied at a whim. Counsel who represented Parliament made it clear to the Court that the mere purpose of bringing in the application was to simply uphold the rule of law, bearing in mind that Parliament had been given a date of 2 April that it had been unable to meet.
Adv Mjenxane added that the Constitutional Court had expressed concern that it had taken so long for the amendment to be brought before the Committee. The Department had filed a supporting affidavit explaining the period of delays between the time the judgement was given, and when the Bill was introduced to Parliament. The Court was a bit reluctant to accept that, and warned that this would count against Parliament should this happen again. The Court had indicated that there would be no prejudice in the event that the extension was not granted because the ruling on the unconstitutionality of the disputed provision would still continue. Judgment on the matter had been reserved.
Mr Swart stated that it was understandable that the Court seemed to express frustration around the matter. The question must be asked why it took Parliament two months to bring the Bill to the Committee. There was also a need to find out if there was a particular reason that the Executive took 14 months to table the amending Bill to Parliament as this had clearly placed the Committee under pressure. There should be a mechanism in place that would advise the Parliament to immediately monitor the the Constitutional Court orders, whenever Parliament was ordered to amend legislation, and the Committee should exercise oversight over the Executive so as to ensure that the Department would immediately file amending legislation.
Ms Breytenbach urged the Committee to be ready for the tabling of the Bill. 4 August was not far away, and she suggested that it would not be helpful to wait for the judgment before taking any constructive action on the matter.
The Chairperson appreciated the input of the Members. He also highlighted that the Committee could not afford to miss the next deadline, although no decision had yet been made on the issue.
Content of the Bill
The Chairperson asked that the Committee be briefed on the specific amendments to Section 15 and 16 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act.
Mr Henk du Preez, State Law Advisor, Department of Justice (DoJ), indicated that the purpose of the current Bill was to ensure that children of certain ages were not held criminally liable for engaging in consensual sexual acts with each other, and to give presiding officers discretion in order to decide, in individual cases, whether the particulars of children engaging in such acts should be included in the National Register for Sex Offenders or not.
The Bill also seeks to provide for a procedure in terms of which certain persons may apply for the removal of their particulars from the National Register for Sex Offenders. The additional provision, in relation to the Department, was to “provide for the removal of the particulars of children who were convicted for having engaged in a consensual sexual act with each other, from the National Register for Sex Offenders”. The Bill aimed to provide for the expungement of the criminal records of certain persons.
Substitution of Section 15 of Act 32 of 2007
He noted that the Amendment Bill was now substituting section 15 of Act 32 of 2007 (the principal Act) to make it clear that: A person (“A”) who commits an act of sexual penetration with a child (“B”), who is 12 years or older but under 16 years is, despite consent of “B” to the commission of such an act, guilty of the offence; unless “A”, at the time of the alleged commission such an act was (a) 12 years of age or older but under the age of 16, or either 16 or 17 of age and the age difference between “A” and “B” was not more than two years”
Mr Swart asked about the time-line for the finalisation of the whole process of the Bill, including its passage through the National Council of Provinces (NCOP), as this was not clear at the moment.
The Chairperson responded that the onus was with the Committee to set a reasonable time-line for the finalisation of the Bill so as to avoid any further delays.
Mr Swart recommended that the Chairperson should have a meeting with the Chairperson of the NCOP Committee which would be dealing with the Bill, so that this Committee was aware that the Bill needed to be prioritised.
Clause 7: Amending section 50 of the principal Act
Mr du Preez indicated that clause 7 on page 6 seeks to amend section 50 of Act 2007 (the principal Act), and this Act is amended by the substitution for paragraph (a) of subsection (2). The emphasis here was on making an order whether particulars of the persons were to be included in the Register. This was something that the Judicial Inspectorate of Correctional Services (JICS) had touched upon. The Department had suggested that new paragraph should be included as it primarily proposed that the initiative to apply for the child to be included in the Register should come from the State. It was suggested that the “representations” in clause 7 of page 7 (iii) should be replaced by “address the court”. It was also proposed that there should be an addition of a new paragraph (d) in the same clause, which would state: “In the event that the court finds substantial and compelling circumstances exists which justify making an order, that the person’s particulars must be included in the register”.
Mr Swart reminded Members that the Child Justice Act, 2008 made it very clear that the State must do an evaluation where criminal capacity of the child was in doubt. This, however, was often a difficult process, when considering not only the cost-implications but the credentials of people making the evaluation.
The Chairperson indicated that this was an important point as it was pointless to create new mechanisms which would consume a lot of time and money while there are existing mechanisms elsewhere.
Clause 8: Amendment of section 51 of the principal Act
Mr du Preez continued that clause 8 on page 8 seeks to amend section 51 of Act 32 of 2007 and this dealt with the removal of the person’s particular from the Register. The new insertions here looked at the historical background of sexual offences that were committed prior to the implementation of the Act and the proposed new paragraph 2 (a) dealt with such a category of person.
Mr du Preez suggested that paragraph (ii) and (iii) in clause 11 should be collapsed into one paragraph as they were interrelated.
He said that in clause 11 on page 12 the year “2014” should be replaced by “2015”.
Clause 12: Long Title
The Department had suggested that there should be a consequential amendment of the Long Title of Act 32 of 2007, in clause 12 on page 11. The seventh bullet point would be replaced by: “and providing for special provisions relating to the prosecution and adjudication of consensual sexual acts between children older than 12 years but younger than 16 years”.
Consequential amendment to index
Mr du Preez mentioned that there was also a consequential amendment of the Index to Act 32 of 2007, as a new item would be inserted as item 69A: “Removal of particulars from Register and expungement of certain criminal records under the Sexual Offences Act, 1957, and this Act”.
Mr du Preez said that it was critically important to note that clause 7 on page 6 dealt with section 50 of the Act. The Constitutional Court questioned the constitutional validity of section 50 (2) (a) of the Act, with specific reference to the “best interest of the child”, as reflected in section 28(2) of the Constitution.
The Chairperson appreciated the thorough work of the Department regarding the Bill as this was indeed a sensitive matter.
Mr Swart commented that the Department was suggesting a very high threshold for a court to allow the entry of the child’s name in the Register, as clearly indicated in clause 7 on page 7 (iv). He wondered whether this was consistent with the Constitutional Court, especially the use of the phrase like “substantial and compelling circumstances”. The Department had also used a lower threshold in clause 8 on page 8 (i), as here it had used the phrase “showing good cause” and this was again inconsistent with the higher threshold that had been used in the previous page. He proposed that the age of 16 should remain as the age of consequential sexual acts as suggested in section 15. The Committee would need to consult the House in order to update it on the changes that had been factored in, and this meant there would be further amendments that would still need to be catered for.
Mr Swart suggested that the Committee must add an optional clause, which would inform the word “consent”, as this was dealing with the children between the ages of 12 to 16. The clause must also include the words like “sufficient maturity or mental capacity to understand the risks of sexual acts” and this would then be similar to the wording in section 129, which related to a child above the age of 12 engaging in a surgical procedure.
The Chairperson responded that the suggestions would be considered as an optional clause as this could assist in phrasing the words correctly.
Mr du Preez agreed with the suggestion that the Committee should come up with new proposals which would be included when the Bill reached another step.
The Chairperson indicated that the Committee would still be giving further consideration to the Bill as it still needed to go through the proper channels before it was adopted.
The meeting was adjourned.