Maintenance Amendment Bill: finalisation & voting; Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill: deliberations

Meeting report

Maintenance Amendment Bill: finalisation and voting
Adv Lawrence Bassett, Senior State Law Advisor Department of Justice and Constitutional Development (DoJ), said a working document has been circulated indicating the proposed changes and there is also an A-List of the Portfolio Committee proposed amendments to the Bill.

Ms Theresa Ross, DoJ State Law Advisor, said the present amendments arose from meetings with the Committee on 25 February and 17, 18 and 26 March 2015. The insertions are indicated by double underlining, while deletions are indicated by strike-throughs. She took the Committee through the changes:

Clause 2
Ms Ross said this clause has been reworked and it deals with the provision of information on the whereabouts of persons affected by maintenance orders. The major changes are seen in paragraph (h). This clause now reads “the tariffs payable to electronic communications service providers for providing information as  determined by the minister in terms of section 44 (8) of the Protection from Harassment Act 2011 apply in terms of information required in terms of this subsection”. The words “payable by the person lodging the complaint” have been omitted and paragraph (i) now reads: “if the maintenance officer is of the opinion that the person lodging the complaint referred to in paragraph (a) is unable to pay the costs of furnishing the information referred to in paragraph (b) the maintenance officer, may at any time after the Maintenance Court issues a directive under paragraph (b), may request the Maintenance Court to hold an inquiry into the means of the complainant and any other circumstances which in the opinion of the Maintenance Court should be taken into consideration”. Paragraph (j) reads: “at the conclusion of the inquiry referred to in paragraph (i), the Maintenance Court may make such order as it deems fit regarding the costs…including an order directing the state, subject to section 20, to pay such costs within available resources in the prescribed manner”. Paragraph (k) now reads: “the Maintenance Court may if it has ordered the state to pay the costs referred to in paragraph (j), upon the application of the maintenance officer to order the person affected by the order to refund such costs so paid by the state”.

Clause 11
This regulates the submission of defaulter’s details to a business which deals with credit ratings. The change is to insert the involvement of the court in such registration as a safety measure, ensuring the submission of the details is only done once the court has granted an order rather than on receipt of an application regarding a default.

Discussion
Mr B Bongo (ANC) said the Department has done a good job and asked for the officials to bear with the Committee when it engages them in robust discussions. The intention is only to shape the outcome, rather than to discourage or attack the officials. It was also premature for the DA to embark on a protest march about the proposed changes to this clause, while deliberations were still on-going in the Committee.

Mr W Horn (DA) said that he did not know whether Mr Bongo was being “mischievous”, but he welcomed the “U-turn made by the ANC on this issue”.

Ms G Breytenbach (DA) said she was less charitable than Mr Horn and took exception to Mr Bongo’s remarks, because she was unsure whether this was the time or place to criticise another political party. However, she “welcomed the ‘flip-flop’”.

Ms C Pilane-Majake (ANC) said the matter should not be interpreted as a “flip-flop” or a “U-turn”, because it was about discussion and Members applying their minds to what was before them. She felt that it was unfortunate that the matter was unfinished business which was taken to the public, because what is the use of Committees discussing matters towards coming to an agreement. She did not know if the matter was about “political point scoring”, but this should be refrained from lest it become a pattern within the Committee. The Committee should give Members time to engage and she would not expect anything which has not been formally adopted by the Committee to be portrayed as the property of the Committee.

The Chairperson said he wanted to close the matter.

Ms Breytenbach said all that she had to say was “nice try”.

The Chairperson said the Committee should be clear on its modus operandi, because it is clear that the Committee is not as one on how debates should be approached. He agreed that when work is in progress in the Committee this process should be allowed to run its course and then further engagements embarked upon.

Mr Horn said one thing that must not go unchallenged is, that if one goes back to the minutes of the last meeting, they will clearly show that the ANC Members in the Committee were very clear and concise that unless clause 11 were removed, the Committee would do it itself. There was therefore no room for further debate and Members will remember that he had pleaded for clause 11 not to be shelved and should rather be reworded, yet he was shut down. There was no uncertainty at that stage as to what the Committee had decided. To now say that this was an on-going debate is a bit disingenuous and not fair to himself who had been fighting for the current position.

Mr Bongo said he did not think the Committee should personalise the problems of the people, because no one should be able to say that they as an individual did something. The Committee is here to solve problems as a collective and Members cannot want to come to the Committee to engage in “political point scoring”. He conceded that at the last meeting the Committee robustly engaged with the matter. Reading the present amendments, they show the inclusion of matters which were raised previously. It was in fact mischievous and disingenuous of Mr Horn and Ms Breytenbach to call a protest march prematurely, because the Committee had requested that the Department redraft the clauses. He was happy with the work of the Department, because this was a collective enterprise towards finding solutions for the people of South Africa.

The Chairperson thanked the Committee for its divergent views and comfort should be taken in the presence of capable officials who are able to sift through all the divergence and come up with something which is in the best interests of South Africa.

Adv Basset said the amendments accepted by the Committee in the meeting would require alterations to the Memorandum on the Objects of the Bill. He was unsure whether the Committee wished to treat this as an administrative matter for the Department to handle or whether it ought to be discussed here. His past experience was that the Department would handle this as an administrative matter.

The Chairperson said the practice is sensible and the Bill as a whole should be considered by the Committee, rather than clause by clause.

Adv Bassett said what was present was a merely a working document and the A-List of the Bill was the official document capturing the formal amendments.

The Chairperson then proceeded to take the Committee through the A-List, clause by clause.

Ms Pliane-Majake asked what clause 2 meant in a nutshell. As the Committee’s concern was who would be paying for the service.

Ms Ross replied saying a means test had been worked into the Bill, where if the maintenance officer is of the opinion that the complainant cannot afford the cost, a court enquiry would then be conducted, leading to an order and there is the potential for the state to pay for the service, with costs recoverable from the person impugned under the maintenance order.

Voting on the Bill
The Chairperson asked for a show of hands in support of the Bill.

A majority of the Members of the Committee supported the Bill, as amended.

Mr Horn said as always the DA would wait for its caucus to decide on whether to support the Bill.

The Chairperson noted the Members in support and the two abstentions.

Mr Bongo asked if it was parliamentary for Members to raise determinations by caucuses in a Committee meeting.

The Chairperson said “sometimes it is important to remind oneself that one’s organisation is still alive and maybe [this] is an attempt to do so”.

Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill: deliberations
Adv Basset said here again a working document and an A-List has been distributed to the Committee.

The Chairperson noted the copy of the court judgment on the application by the Speaker for extension of the time by which the amendments must be completed, indicates it grants the extension.

Adv Bassett said the documents submitted reflect the amendments to date, differentiating between amendments already discussed. At the last meeting of the Committee the Department had been requested to draft proposals at the request of Mr S Swart (ACDP).

Adv Henk du Preez, DoJ State Law Advisor, took the Committee through the relevant changes:
- On page 4 of the working document there is an option following the Department being requested to look into amending the definition of ‘consent’, to clarify the position of children between the ages of 10 and 15 years. In the submission by the Centre for Child Law, reference is made to the potential for amending the definition of ‘consent’, but it was concerned that this should be more broadly consulted upon. The Department tends to agree and it has reservations about the proposed amendment.
- On page 5, the amendments have been brought to the attention of the Committee previously and these are mere formatting alterations.
- On page 8, there is an omission of the word ‘and’ between paragraphs (a) and (b).
- On page 11, there is the proposed amendment to section 57 as proposed by the Centre for Child Law. The first part of this proposal is for the heading be amended by omitting “of children under 12 years and persons with mental disabilities”, so that the heading will only read “inability to consent to sexual acts”. Then a proposed subsection (3) be inserted into section 57, which reads: “subject to section 15, a person who is under the age of 16 years may not consent to any acts of sexual penetration”.
- On page 14, it is indicated that if the amendment to section 57 is accepted the heading in the index will have to be consequentially altered.
- Returning to page 11, which relates to the proposed amendment to section 57 it is indicated in a footnote, that the Department has reservations about the proposed amendment, primarily because there is a concern that it may give rise to interpretational problems. The Department understands the need for something to this effect needs to be included in the provisions. Therefore, instead of an amendment to section 57 the Department suggested a preamble to the Bill which will place the amendment Bill in proper context and address some concerns highlighted during the consultative process. The preamble will read: “BEARING IN MIND that the Constitutional Court found, in the case of Teddy Bear Clinic for Abused Children v the Minister of Justice and Constitutional Development and Others [2013] ZACC 35, that sections 15 and 16 of the Criminal Law (Sexual Offences and Related Matters Act, 2007 are unconstitutional in so far as they criminalise consensual sexual conduct between adolescents; AND BEARING IN MIND that the primary objective of sections 15 and 16 of the Act, namely to protect children, who are 12 years or older, but under the age of 16 years, from adult sexual predators remains unaffected by the Constitutional Court judgement and consequently also does not lower the age of consent to 12 years; AND BEARING IN MIND that it is unnecessary and in the best interests of adolescents and therefore of paramount importance to educate and inform them about their own responsibilities and the risks that may be associated with developmentally normal sexual behaviour”. He noted that the part which emphasised that the age of consent was not being lowered to 12 was key. The A-List contains a further paragraph to the preamble, as the Bill deals with the ramifications of the J case as well, reading: “AND BEARING IN MIND that the Constitutional Court, in the case of J v National Director of Public Prosecutions and others [2014] ZACC 13, found that the automatic inclusion of the particulars of persons, who were children at the time of commission of sexual offences, in the National Register for Sex Offenders is contrary to the “best interest of the child” principle and therefore not justified in an open and democratic society”.  This is what the Department would like to propose in relation to the proposed amendment of section 57.

Discussion
Mr S Swart (ACDP) thanked the drafters for looking into the matters that he had raised. On the reference to section 129 of the Children’s Act on page five of the working document, he needed to hear more about the unintended consequences, because the proposal is taken directly from section 129 of the Children’s Act, which relates to a child consenting to any surgical operation. He was not sure what the problem was, because this is a means to protect children. What is being dealt with is children who may not be mentally mature enough to consent to engaging to acts of sexual penetration. This is a narrow issue and relates to the heart of consent.

On the amendment to section 57, Mr Swart appreciated the preamble and had a further suggested amendment to the preamble. However, he was not happy to leave section 57 and he needs more information on why the Department felt that this will lead to interpretational problems, given that the submission comes from the Childline grouping which would have carefully considered its implications. He suggested a discussion between the Department and the drafter Prof. Ann Skelton. He felt that making the proposed amendment subject to section 15 makes the clause very clear. He appreciated that this could be seen as a late amendment to the Bill, but it is possible to have both the preamble and the proposed amendment. He asked if the Chairperson wanted to finalise the Bill in the present meeting.

The Chairperson said some of the issues raised by Mr Swart could be left to the academics, because further amendments are always welcome. However, attempting to reach absolute perfection is not going to help the Committee in the circumstances. He thought the preamble helped to move out of the situation and enabled the Committee to finalise the Bill. Future parliaments can reconsider some of these matters, but the Committee “should not strive to reach absolute perfection”.

Mr Swart appreciated the urgency of the matter and there may be opportunity during the NCOP process, but he would still like to vote on the options, even if he is outvoted. He also has an insertion into the preamble, which is a quote from the Constitutional Court judgement in Teddy Bear case at paragraph 81, because the term “developmentally normal” is a very loaded term. He would rather have the preamble read “AND BEARING IN MIND that the purpose of discouraging adolescents from engaging in consensual sexual conduct, which may harm their development and engaging in sexual conduct in a manner which increases the likelihood of risks associated with sexual conduct materialising, are legitimate and important”.

Ms Pilane-Majake said she understood Mr Swart’s concerns and unintended consequences should be guarded against. There are a number of issues which need to be clarified, such as the age gap in relation to consent and vulnerability of girls. As the Committee navigates forward it should ensure it does not pass a Bill which may come back to bite the Committee, because it does not cover all the concerns raised previously.

Adv Bassett said the Department had not had much time to consider section 57 amendments and ideally it would have liked to consult with the National Prosecuting Authority. He would feel more comfortable if the Committee did not proceed with that particular amendment and dealt with it at a later stage. It would be best to consult more widely, given the massive consultation process leading up to the Bill and therefore he would be more comfortable leaving it. Towards the end of the year the Department is developing another Judicial Amendment Bill and these issues could be included in that Bill. It has been brought to the Department’s attention that there will possibly be other amendments to the provisions dealing with the National Register of Sex Offenders and there may space to deal with the matter then.

Mr Swart asked for these options to be noted, but he would like the option he suggested for the preamble to be inserted, while allowing the Department space to consider the proposal. Again he noted that the quote was directly from the Constitutional Court and highlights the need to protect adolescents and children.

Adv Bassett said what Mr Swart had suggested makes a lot of sense and would perhaps be better than what was contained at present. The Department therefore does not have a problem with it.

Mr Swart said he would like the section 129 option to be noted as well, because he understood that not everyone had had the chance to consider the matter in study groups.

The Chairperson said the Committee is at the point where it must make decisions beyond caucuses and study groups. What will be done is to allow the officials to rework the clauses and the Committee will sit the following week to decide. The Committee cannot re-consult with all the people who have already been consulted, particularly working under the timeframe from the Court. Therefore the Department should be allowed to rework the document in the light of Mr Swart’s proposal which is generally accepted.

Invitation to workshop on the implementation of the Child Justice Act
Ms Pilane-Majake said the Committee has received an invitation from the Select Committee on Security and Justice, which will be hosting a one day workshop on the implementation of the Child Justice Act on 27 May. This workshop will be attended by the Members of the Select Committee on Security and Justice, other selected Committees in Parliament, Ministries, Departments and external stakeholders relevant to the sector. The venue was to be the Good Hope Chamber, with the workshop beginning at 10 am. She felt the idea was that Members who were interested should indicate this to the Office of the Chairperson.

The Chairperson then declared the meeting adjourned.