Criminal Law (Sexual Offences &Related Matters) Amendment Act Amendment Bill approved; Rules Board Briefing Rules of Appeal Procedure, in accordance with Rome Statute: Department's briefing

Meeting report

Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill: Deliberations

The Chairperson asked that the Department of Justice and Constitutional Development (the Department) take the Committee through the final amendments to the Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill (the Bill).

Mr Lawrence Bassett, Deputy Chief State Law Advisor, Department of Justice and Constitutional Development, said a working document had been circulated. The amendments marked in yellow and blue had been approved previously. The Committee had mandated the Department to consider replacing a paragraph in the Preamble, as suggested by Mr S Swart (ACDP), which had been done, and this and other technical amendments had been indicated in green.

(He later added that the Memorandum on the Objects had also been changed, and this had been circulated to the Committee.)

Mr Henk du Preez, Senior State Law Advisor, Department of Justice and Constitutional Development, highlighted that Mr Swart's proposal to insert a paragraph from the judgment of the Constitutional Court was shown on page 3 (see attached document). There were some further changes to correct the references to the judgments which had given rise to the Bill, and to properly refer to the Criminal Law (Sexual Offences and Related Matters) Amendment Act. He noted that the enactment clause contained in the previous version of the Bill was outdated and had been replaced with version in plainer language reading: “Parliament of the Republic of South Africa.. therefore enacts as follows..”. On page 9, the initial reference to the findings of the judgment on the Criminal Procedure Act had made the paragraph rather long and a shortened paragraph was now proposed, with the same meaning. On pages 9 and 10 the reference to “subsection (2)(a)” has been changed to "paragraph (a)" - this change had been highlighted by the Parliamentary Legal Advisors - and he clarified that this referred directly to the relevant paragraph. Finally, he noted that at a previous meeting, he had suggested that subparagraphs (2) and (3) should be collapsed into one, and on page 13 this had now been done, after he had double-checked the provisions of the original Sexual Offences Act.

Mr Bassett then went through the draft Committee Report on the Bill (the Report) for the Committee’s consideration. He said the introductory portion was the same as all reports by Committees, indicating that the Bill had been referred to it by the Joint Tagging Mechanism and that the Committee agreed with the tagging.

The Report then referred to the Constitutional Court judgments which gave rise to the amendments and briefly described that the Court had ruled that sections 15 and 16 of the Sexual Offences Act were unconstitutional, insofar as they criminalised consensual sexual activity between adolescents. In the case of S v J, the Court had raised questions on section 52 of the Sexual Offences Act, and whether it the provisions for automatic inclusion of certain sexual offenders' names in the National Register of Sexual Offenders (the Register), upon conviction, was unconstitutional under specific circumstances, with particular reference being made to the "best interests of the child" principle. Paragraph 3 indicated that the Bill was consequently aimed solely at these two judgements. However, during the public participation process many submissions had focused on the perceived net result of the Constitutional Court judgment in the Teddy Bear Clinic case, in that it brought about a lowering of the age of consent to 12 years. The Committee confirmed that this was not in fact so, but recognised the concerns expressed that the law (not necessarily the criminal law) should reflect the legitimate concerns of society that adolescents should refrain from engaging in consensual sexual conduct prematurely, which may be harmful. This was an attempt to summarise the deliberations which happened after the public submissions.

Paragraph 4 set out that the Committee had noted the time constraints to enact the Bill, and accepted that the Bill was primarily aimed at aligning the law with these two judgments, but  the Committee had been of the view that the concerns expressed merited further consideration before coming to a final conclusion on any proposed amendment to address the concerns. This again summarised the stance of the Committee following the public submissions.

The last paragraph set out the recommendations of the Committee, which were that the concerns raised during the deliberations of the Committee should be investigated further, with a view to promoting a Committee Bill under the Rules of Parliament. The two aspects which needed further consideration were:
- an amendment of section 1(3)(d) to broaden the circumstances in which an adolescent would be deemed incapable of consenting to a sexual act, bearing in mind the parameters set by the Constitutional Court in the Teddy Bear Clinic case
- an amendment of section 57 to address any uncertainties that may exist with regard to the age of consent.

Mr Bassett suggested that the last paragraph be amended to indicate that the investigations of these concerns should lead to a “possible” Committee Bill.

The Report had in essence summarised the deliberations of the Committee on the Bill.

Discussion
The Chairperson asked if any Member wanted to raise any issues with the latest amendments effected, before considering the Report.

Mr S Swart (ACDP) said he was grateful for the insertion of his suggestion into the Preamble. He wanted to ask whether these amendments required the Bill to go back to the House and what the process would now be; the changes were largely grammatical and essentially the Bill remained the same as tabled.

Mr Swart understood that the time constraints meant that his other two suggested amendments could not be included, but accepted that there was a possibility for their inclusion under the Report. He indicated that his party, the ACDP, needed to consider its approach to the Bill, given its concerns right from the beginning of the process, but he did appreciate the progress made in the deliberations.

Mr B Bongo (ANC) said he did not understand Mr Swart clearly and asked that he specify what amendments he was referring to.

Mr Swart responded that the ACDP had been part of the process leading to the wording of sections 15 and 16, arguing for criminalisation, largely as a deterrent. The Court had now struck this down, and it was the ACDP that had garnered the support for many of the submissions which came in. It was accepted that no one wanted to see a child jailed for engaging in consensual sex. There was still a broadly held view by the ACDP constituency about section 15, but the ACDP supported the amendments to section 16 and the National Register of Sexual Offenders. The ACDP appreciated that the rule of law was in issue; this was a judgment of the Constitutional Court, and his reservations on the point did not mean that the ACDP would not support the Bill, although he and his constituency did have concerns that the amendment of section 15 would result in the decriminalisation of consensual sex between adolescents. He undertook that he would not use this Bill as an excuse to engage in political posturing, but his party did not have a definite position on the Bill at the present time. Further consultations were required, and it would not sit well with the constituency if the media were to go out and report that the ACDP now supported adolescent sex. His party would consider its position on the matter in a responsible way, and understood the seriousness of the situation and the need to respect the rule of law.

Ms C Pilane-Majake (ANC) said she was of the view that paragraph 5 of the Report covered the concerns raised by Mr Swart, because it indicated that a number of issues were raised during the deliberations and the Committee was of the view that it needed to investigate matters further. This was not the end of the road, although the Bill would address the issues in the Court's judgments. The Committee would be continuing to investigate the matter further, to ensure that any "nuts and bolts are tightened".

Mr Bongo agreed with Ms Pilane-Majake, because paragraph 5 could be seen as a “reservation clause” which would cover the concerns raised, although at the present time the Committee would not be dealing with them.

He felt that Mr Swart was “[dropping] the ball” by indicating his party's ambivalence on the Bill, because the Committee had generally been agreed on the issues and had discussed them deeply. He did not think it was necessary for the Committee to return to the emotive concerns covered in the beginning of the process. The reason that he asked Mr Swart to give further clarity was that he had been ‘progressively’ raising particular insertions, including the point accepted into the Preamble. The Committee should now be concerned with the technicalities of the Bill and what it sought to be achieved, rather than communities’ concerns.  He asked for specific proposals to be raised, so that the Committee could engage on them now, and finalise the Bill in the present meeting.

Mr Swart noted that it was not correct to suggest that the ACDP was going back on its position, because at no stage did he indicate how it would vote on this Bill. The Committee also had not had much time for deliberations, with the meeting of 15 May being the first after the public hearings. He submitting that it was wrong for Mr Bongo to now say "the ball was being dropped". Just as the DA always reserved its position, so could the ACDP. The Chairperson had done radio interviews and would know that the public was generally opposed to the Bill, although it did not have all the information. It would be easy to take a political standpoint on the Bill, but he repeated that he did not want to posture, but it must be understood how this Bill could be spun against the ACDP, as a Christian party, suggesting that it was in support of teenage sex. Already, the party had come under criticism for its approach, and that was why he wanted to reserve its position, for further consideration and so that it could take a responsible stance. He had continually questioned what message was being sent out to the public. He felt that the Chairperson had done a good public relations job, and the Report also emphasised this. In addition, Mr Swart would emphasise this point in his speech to the House. However, he repeated that he had to guard against the issue being turned around in any way and he felt the Chairperson had done a good job in this area. The Report emphasises this and he would do so as well in his speech. However, he reiterated that he must guard against the issue being spun in a way that could harm the ACDP.            

Mr W Horn (DA) said that he had some points of difference from Mr Swart. He felt that the Committee had had enough time to deliberate on the Bill. Having received assistance from the Department and insightful public submissions, the Committee now had a clear understanding of what the Court judgements intimated, and what the public might feel. If there was still a need to educate further, then this was a ball that Parliament, on behalf of the Committee, must carry. Taking this further, he indicated that whilst the DA, as always, would be indicating that it reserved its right, he would like to see something built into the Report that would ensure a proper process of communication with South Africa on the process followed and the real meaning and implications of the Bill.

The Chairperson asked if it would be correct to infer at this point that the Committee agreed with all proposed amendments and the Draft Report of the Committee, particularly paragraph 5 of the Report, which set out the residual issues, clearly stating that they were not being ignored and that a possible Committee Bill will be looked into, but also making it clear that the important thing for the moment was  to comply with the requirements of the Constitutional Court.

Mr Horn said the Draft Report to a large extent clearly set out the process followed and the Committee's current position, although he would like to make a few technical suggestions. Paragraph 2 stated that the Court had “questioned the constitutional validity”, but in fact it had declared the provisions unconstitutional. He felt this should be rephrased. In paragraph 5.1, instead of saying “to broaden the circumstances where an adolescent is incapable in law”, he suggested the wording that adolescents were "deemed incapable in law”.

Ms Pilane-Majake supported those amendments.

Mr Swart asked if the National Council of Provinces (NCOP) could also consider the amendments, although this did not have to be captured in the Report.

The Chairperson said the Bill had been tagged as a section 75 Bill and it would automatically go to the NCOP. Whatever happened there should not be this Committee’s business.

Mr Bongo agreed. He felt that the Committee had done really well with the Bill. He did not expect any Member of the Committee to “drop the ball” when the matter came before the House.

Mr du Preez commented on Mr Horn's proposal. In relation to paragraph 5.1, said that the current wording was an exact reflection of the principle contained in paragraph (3)(d), where the list set out all the circumstances where a person was " incapable in law of consenting" to a sexual act, such as where a person might be asleep. This was therefore a technical phrase which was being used and if it were to be replaced with "deemed" then a whole new paragraph might be required. He also expressed the view that if a person was "deemed incapable" this was the same as being "incapable", unless there were exceptions to the incapacity.

Ms Pilane-Majake said consistent terminology should be used, and for this reason, having heard Mr du Preez, she would then support paragraph 5 being left as is.

Mr du Preez said he took the point on paragraph 2. A redrafted paragraph would be provided by the time the Committee was ready to approve the Report; if the Committee was ready to approve now he would need a few moments to draft a new paragraph.

Adoption of Bill
The Chairperson went through the Bill, clause by clause, asking for Members to indicate objections.
He noted that no objections had been received.

Mr Bongo moved for adoption, seconded by Mr L Mpumlwana (ANC)

Ms G Breytenbach (DA) said the DA would be abstaining from adopting the Bill, pending caucus decision.

Mr Swart said the ACDP would also be abstaining.

The Chairperson counted five Members in favour of adoption and three who reserved their right to vote until the House.

Ms Pilane-Majake asked whether it should not be recorded that opposition parties did not support the amendments.

The Chairperson clarified that in the clause-by-clause deliberations, no parties had challenged any amendments, and he pointed out that they were merely abstaining from voting at this point.

Mr Bongo asked whether the abstaining Members “did not comprehend" what the Committee was dealing with, or what the problem actually was.

Mr Swart said he had already answered the concern extensively earlier, including his commitment to not making a political issue out of this Bill. It remained the right of any Member to vote how he or she wished, and he again gave his assurance to be responsible during the debate in the House.

Mr Horn said he wanted to clearly distinguish the one process, where the Members of the Committee contributed to making the Bill the best it could be, from another, where the caucus would determine the party’s position on the Bill. This may override the Member’s positions. In order to avoid this discrepancy there was a standard decision by the DA caucus that all the DA Members would always reserve their rights in Committee voting. He did not feel it fair to suggest that contributions in a Committee could bind a party caucus. The ANC Members knew full well that they were also subject to a caucus decision, although perhaps they were in the fortunate position of having already received caucus approval.

Ms Breytenbach said she did not believe that, in a Constitutional democracy, it was necessary to ask for the DA to explain itself, and said it was "mischievous" of Mr Bongo to question that right.

Mr M Maila (ANC) said the matter before the Committee was a very important one which affected the nation as a whole. During the deliberations, a perception was created that Parliament wanted to promote sexual activity among adolescents, and an appeal was made to inform the constituencies about the matter. He now observed that the Members who had been involved in the whole process were handling the matter as a “hot potato”, perhaps to allow them to say that it was the ANC which was pushing the Bill. He emphasised that the Committee was attending to this matter to answer the instruction from the Court, and, as indicated in the Report, the Committee had decided that aspects of this matter ought to be deliberated further.

Mr Swart said he had taken part in a number of interviews and he wanted to give the assurance that he had always said that the matter was before the Committee as the result of a Constitutional Court ruling which was binding on Parliament. At no stage had he blamed the ANC, government or anyone else. The difficulty would lie in the message sent out when Members spoke during the debate, and it would be useful to stress there the amendments that were left out.

Ms Pilane-Majake said the advisors and experts from the Department need to be thanked for the work they had done.

The Chairperson said that, politically, the rights of Members to consult with their parties should be respected. As far as the Committee was concerned, all Members had looked into the amendments together and all political parties had made their contributions. None of the political parties had any difficulty with the amendments and therefore the acceptance of the Bill was "the position of all Members".

Adoption of Committee Report (as amended)
Ms Pilane-Majake moved for adoption of the Report, and Mr Maila seconded the Report.

The Chairperson counted five votes in favour from the ANC, with two Members of the DA and a single Member of the ACDP abstaining.

Briefing Rules of Appeal Procedure, made by the Rules Board for Court of Law in accordance with section 10(8)(g) of the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002

Mr Raj Daya, Chief Director and Secretary to the Rules Board, Department of Justice and Constitutional Development, noted that this was quite a complex issue. He would cover, in his briefing, what the Rome Statute is, what the International Criminal Court (ICC) is, what the relevance is for South Africa and the Committee’s role regarding the Rules of Appeal.

Mr Daya explained that the Rome Statute of the International Criminal Court was created in 1998, with about 123 signatories.  He read out various highlights from the preamble of the Statute setting up the International Criminal Court (ICC), which included “conscious that all people are united by common bonds their cultures piece together... mindful that during this century millions of children, women and men have been victims of unimaginable atrocities... recognising that such grave crimes threaten the peace, security and well-being of the world... affirming the most serious crimes of concern to the international community... determined to put an end to impunity... recalling that it is the duty of every state to exercise its criminal jurisdiction... reaffirming the purposes and principles of the Charter of the United Nations... emphasising this connection that nothing in this statute shall be taken as authorising any state party to intervene in any armed conflict... determined to, for the sake of present and future generations, establish a permanent international criminal court with a relationship to the United Nations...”

Mr Daya said in 2002 South Africa enacted the Implementation of the Rome Statute of the International Criminal Court, as Act 27 of 2002. This was the domestic legislation that affirmed the principles of the Rome Statute. Section 10 dealt with appeals procedures, once a person was arrested in order to be brought before the ICC. The Act also allowed the National Director of Public Prosecutions (NDPP) to appeal to a higher court if a magistrate refused to agree to the arrest of a person who was to appear before the ICC. These were the salient aspects of the rules under discussion presently. The Rules were made by the Rules Board for the Courts of Law in South Africa, a unit that was part of the Department of Justice and Constitutional Development. The approval of the Rules required a certain process: they had already been approved by the previous Minister of Justice and they then went through the NCOP in November 2013. This Committee would need to recommend their approval to the National Assembly. Once they were formally approved there, the Rules would be gazetted and come into force.

Mr Horn asked if it was not a problem that the NCOP had approved this matter first, and whether the fact that this was done in the Fourth Parliament was any impediment.

Mr Daya conceded that he would have to revert to the Committee with a response on that.

The Chairperson said it was a good question, because it related to the Committee's process.

Ms Breytenbach suggested that perhaps this process ought to be seen as the beginning, and that the Rules would have to be referred to the NCOP of the Fifth Parliament later.

Ms Pilane-Majake asked whether the approval of these Rules had been included in the strategic plan of the Committee. Whilst she was not suggesting that matters relating to the ICC were not important, she wondered whether it was entirely appropriate to have this brought to the Committee now, given the backlog in domestic legislation.

The Chairperson said he did not think it would do any harm to receive the briefing, note that it was introduced in the NCOP and continue to investigate the process. He felt the briefing was still important, and although the Committee was indeed inundated with work, it must still consider all matters on the table.

Mr Swart said it was a pity that the Parliamentary Law Advisors were not present, given that the previous Minister had approved the matter and that it went through the NCOP in November 2013. He wondered what had been happening between then and now. He agreed that it would be useful to have the briefing, but for Mr Daya to then engage with the Parliamentary advisors, to see what the correct process was and how urgent the matter was.

Mr Vhonani Ramaano, Committee Secretary, said he was not aware that the matter had been referred to the NCOP; it had been referred to this Committee in 2015. He would follow up with the Parliamentary Legal Advisors and the Committee Secretary of the NCOP committee.

The Chairperson asked whether the International Relations Committee was seized with the matter, given that there was a debate within the African Union about African countries not subjecting themselves to the ICC.

Mr Daya said that despite request it was not possible to get anyone here today from the Internal Relations section of the Department and he could not speak to that. It would be important for the Committee to establish that link, for its own understanding.

Mr Daya noted that the presentation had been simplified to give context for the rules; he highlighted the two rules of appeal on slide 5. The first was under section 10(8)(b) of the Act, where a person is arrested for appearance in the ICC and wished to appeal that decision. The second was under section 10(8)(c), where the NDPP wanted to appeal against a refusal by a magistrate to have a person arrested in order to secure his/her appearance in the ICC. The Rules Board had to draft two rules covering these two sections.

Mr Daya indicated that the remainder of the briefing document set out other background, and he submitted that Members could note it for now. He would check up on the procedural issues raised, and, once those were clarified, perhaps he could give a fuller briefing.

The Chairperson agreed.

The meeting was adjourned.