Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill [B18B-14]; Maintenance Amendment Bill [B16B-14]: Department of Justice briefings and consideration, in presence of Deputy Minister

NCOP Security and Justice

17 June 2015
Chairperson: Mr D Ximbi (ANC, Western Cape)
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Meeting Summary

The Department of Justice and Constitutional Development briefed the Select Committee on Security and Justice on amendments of two Bills, the Criminal Law (Sexual Offences) Bill and the Maintenance Amendment Bill.

The Criminal Law (Sexual Offences) Bill was introduced in 2014 and was an amendment to the Criminal Law (Sexual Offences) Act which was related to implementing two Constitutional Court judgements in the cases of Teddy Bear Clinic and S v J. In the Teddy Bear case, the Constitutional Court found that sections 15 and 16 of the Sexual Offences Act were unconstitutional and inconsistent with the Constitution. The primary objective of sections 15 and 16 was to protect children between the ages of 12 and 16 against predatory adults, and this remained unchanged by the Constitutional Court judgement. However, the Court found that where children in this age group engaged in consensual sexual activities (penetrative or non-penetrative) with each other, this should not be criminalised. The Act still prevented children under 12 from consenting to sexual acts at all. There was a perception that the judgment and this Bill had the effect of lowering the age consent to 12 years. However, the age of consent had remained unaffected by the Constitutional Court judgement; it was simply that consensual activity in this age group would not be criminalised. There was also an implication in terms of double prosecution, which was possible under sections 15(2) and 16(2) of the Act, since the Constitutional Court had also decided that double prosecution, where the National Director of Public Prosecutions could decide to institute criminal proceedings against both the participants in the sexual acts, was unconstitutional, so this was also being removed by the amendments. A further provision related to the fact that hitherto, the names of all convicted sex offenders would be automatically included in the National Register for Sex Offenders. In the case of S v J, J was a child who had been convicted of sexual offences against other children. His name was supposed to be automatically included in the National Register for Sex Offenders, but the High Court, when reviewing the case, had questioned automatic inclusion and the Constitutional Court later found the provision to be unconstitutional if the offender was a child when the offence was committed. The amendments firstly noted that automatic inclusion would not happen and a child offender would be permitted to address the Court on whether the particulars should be included in the Register. Further provisions were included to expunge criminal records of children already convicted whose names were in the Register.

Members noted the urgency of the matter, as the Constitutional Court had granted an extension of time to pass the amendments, no later than 5 August. The Committee discussed the process and the possible dates for bringing this to the House, noting also that the Bill was to be debated in the National Assembly that afternoon, and would thereafter be formally referred to this Committee. The Committee would meet on the following day to debate the Bill in depth.

The Deputy Minister and Department also briefed the Committee on the Maintenance Amendment Bill. A full investigation was currently being done by the South African Law Reform Commission on the Maintenance Act, which would be extensively amended in due course but the amendments now proposed were those highlighted as being necessary for the improved administration of maintenance matters, and for giving greater clarity on certain issues. Clause 1 was adding another ground for investigating a complaint, in the case of a verbal or written agreement, in respect of which there was no existing maintenance order.  The jurisdiction was being increased so that a person could apply to the Maintenance Court in the district where he or she was working. The Bill also made provision for interim maintenance orders where there had been delays or postponements that could cause hardship to the maintenance seekers, and encouraged courts to finalise orders quickly. Clause 3 would also permit a maintenance officer to subpoena the beneficiary of a maintenance order, typically when the person responsible for maintenance was applying for the reduction of maintenance amount or for the discharge of the maintenance order. The objective was to create certainty and dispel the misconception that only respondents could be subpoenaed. Clauses 9 and 10 were largely technical, dealing with substitution, discharge and transfers of orders and clause 12 expanded emolument attachment orders.

Other clauses were more controversial and had been the subject of serious discussion at the Portfolio Committee on Justice. Similar to provisions already included in the Protection from Harassment Act, clause 2 required cell phone service providers, when requested by the Court, to provide contact information of a defaulter, when other attempts to trace that person had failed. This would be used as a last resort, if the Court was satisfied that all other reasonable efforts to locate the person (such as tracing by a maintenance investigator) had failed.  The Portfolio Committee had been concerned with what might happen if the person needing such an order was unable to pay, and the Department was worried that the State would be faced with huge claims, as it had no idea of the scale of potential claims, and the fee provided (as with the Protection from Harassment Act) was R80. The Portfolio Committee had asked that a further provision be included empowering the Court to make an order for recovery of this amount from the defaulter, once traced. The Bill also contained a provision that the Court could notify credit companies of the names of maintenance defaulters, hoping that the threat of blacklisting might persuade recalcitrant defaulters to pay. The Deputy Minister and Department stressed that this was not an attempt to penalise a person who, whilst owing maintenance, was unable to pay due to a change in circumstances, for such person could inform the Court of the changed circumstances and seek a revision of the order. The Portfolio Committee had discussed at length whether this was an appropriate provision, since blacklisting would affect the defaulter's economic productivity or ability to make money, and could have the effect of further limiting child support. Similarly, although prison sentences already in the Act were being increased, this was intended as a threat and would be used as a last resort after all other attempts to get maintenance payments had been exhausted. Clause 5 was giving effect to a court judgment, and required the Court, if it was contemplating making an order that a third person should pay on behalf of the maintenance debtor (such as his creditor, employer or pension fund), to afford the other party the opportunity to comment on the feasibility of such an order. Clause 6 empowered the Court to make an order in the absence of the respondent or / and beneficiary, if the order being sought was  consistent with the consent handed in by the maintenance officer at the inquiry.  Clause 7 would empower a Maintenance Court to grant an order by default if the Court was satisfied that the person failed to appear in court when she or he was aware of the subpoena or failed to appear after having been duly warned by the court to so appear. The imprisonment penalties were being increased, and a new offence of obstructing or hindering maintenance officers was included. Clause 18 allowed a trial Court to order criminal proceedings to be converted to a maintenance inquiry.

Members questioned whether cell phone providers giving addresses might not be a violation of rights to privacy, and wondered if imprisonment of defaulters - with its consequent economic and social hardships and the unintended consequence of making them further unable to pay - was appropriate. Members asked for clarity on "organisations" as referred to in clause 5, and several asked about the possible cost implications to the State of getting addresses from cell phone providers, and wondered whether the Department might have room to negotiate with the providers.

Meeting report

Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill, 18 of 2014: Deputy Minister and Department of Justice and Constitutional Development (DoJCD) briefing
Mr John Jeffery, Deputy Minister for Justice and Constitutional Development, said the Criminal Law (Sexual Offences) Amendment Act Amendment Bill (the Bill) amended the Sexual Offences Amendment Act (the Act), following two Constitutional Court judgements, in the Teddy Bear case and the S v J case.
The Teddy Bear case was one where the Court found that consensual sex between adolescents aged 12-16 years old could not be criminalised, as it had been in terms of the Sexual Offences Act, although the intention was not to have children put in jail; originally the intention was that only the National Director for Public Prosecutions (NDPP) could institute a prosecution and the children would be diverted. However, the Teddy Bear Clinic took that provision to the Constitutional Court which found that sex between consensual teenagers or adolescents could not be criminalised. Mr Du Preez would provide more reasons. This Bill had been quite controversial when discussed in the National Assembly (NA) because it was seen as promoting sex amongst adolescents. The Bill was not saying that adolescents should be encouraged to have sexual relations, but the issue was that the state could not be expected to deal with adolescents as criminals, when they did engage in sexual relations. The Court had found it to be normal behaviour.  

The Bill was introduced in 2014, and a deadline was set by the Constitutional Court for introducing legislation to correct the Act. Parliament approached the Court for an extension, which was now granted, to 5 August 2015; although the extension was given a while ago, the reasons were given only on Monday 15th June 2015. There was some urgency to this Bill, which would be going to the National Assembly later this afternoon, and would then be formally referred to the NCOP.

The other matter that this Bill sought to correct related to the register of sex offenders, specifically relating to children. Again, he emphasised that the State could not be expected to police children and what they got up to, as this was the responsibility of parents and guardians. The National Assembly Committee had put a preamble to the Bill which explained why the Bill was being passed, particularly in view of the concerns expressed earlier that this Bill may be trying to promote sexual activity. The Deputy Minister stressed that non-consensual sex, as well as consensual sex for other child ages not mentioned in the Bill, remained criminalised.

Mr Henk Du Preez, Senior State Law Advisor, DoJCD said a briefing document had been submitted to the Committee. He would speak to that document but would not go through it line by line. There were two key components to the proposed amendments to the Act. Both of the key components were trying to give effect to the judgement of the Constitutional Court with regard to the Teddy Bear case and the J case.

In the Teddy Bear case, the Constitutional Court found that sections 15 and 16 of the Sexual Offences Act were unconstitutional and   inconsistent   with the Constitution. The primary objective of sections 15 and 16 was to protect children against predatory adults, and nothing here changed.  Mr du Preez repeated that there was a perception, as a result of the case and the introduction of the Bill, that the age of consent was being lowered to 12 years. This was not the case. The age of consent remained unaffected by the Constitutional Court judgement, and this was explicitly stated in the second paragraph of the Preamble of the Bill. The Teddy Bear case had been concerned with whether it was constitutionally acceptable to criminalise two   adolescent   children having consensual sexual relations with each other.  

He reminded members that section 15 related to penetrative sexual acts, and section 16 related to non-penetrative sexual acts. One of the aims of the Act itself was to draw a sharp distinction between penetrative and non-penetrative, to include sexual activities such as hugging and kissing.

Mr Du Preez indicated that it was important for the Committee to be aware of the implications of the Constitutional Court order. The primary objective of sections 15 and 16, namely to protect children between the ages of 12 and 16 years against predatory adults, remained unaffected by the judgment. He explained that the Act prevented children under the age of 12 from consenting to sexual acts. That meant that the prosecution should prove that the child was below the age of 12 and then the rule as it was in the Act itself would be used to prove that this child was unable to consent to a sexual act.

The Constitutional Court had decided that because the provisions of section 15(1) in relation to acts of consensual sexual penetration between two adolescents were unconstitutional, and that this activity between those persons should not be criminalised, should also apply to section 16(1). The provision had also stated that the NDPP could decide to institute criminal proceedings against both the participants in the sexual acts, and that, as reflected in sections 15 (2) and 16 (2), was also considered unconstitutional. The main provisions of section 15 and 16 had been retained in the proposed amendments but the double prosecution requirement had been deleted and he asked the Committee to note that, in relation to the Teddy Bear judgment.

Turning then to how the Constitutional Court's direction was being effected, he started with clause 1 of the Bill, which provided  a definition of "child". Although this was already defined in the Act, there was one exception which related to sections 15 and 16. It was therefore decided, to provide clarity and to avoid any uncertainty, to provide in clause 1 that a child was someone under the age of 18 years. There was an exception for children between the ages of 12 to 16 years, in relation to sections 15 and 16, and that would be inserted into the relevant sections.

Clause 2 aimed to amend section 15 of the Act by inserting the phrase "children between the ages of 12 and 16 years" to make this section applicable only to that scenario. This was the exception that was directly giving effect to the Constitutional Court judgment. In future, section 15 would thus provide that a person who committed an act of sexual penetration with a child aged 12 years or more, but under the age of 16 years, notwithstanding the consent of the child to that act, could be found guilty of having committed consensual sexual penetration with a child. However, if the accused person at the time of the alleged commission of the act was also a child between 12 and 17, then there would be no criminalisation. Provisions had to be made in paragraphs (a) and (b) and exceptions made applicable to children aged 16 or 17 years. The proposed amendment was a necessary consequence of the Constitutional Court judgment. He explained that the section had to be broad enough to cover the situation where, for instance, a 15 year old child and a 13 year old child might have a relationship that would not be criminalised. However, when the older of the two passed the age of 16, then he or she would be in trouble if that provision was not made to extend to their older age.

The remaining part of section 15 remained the same, apart from omitting the offending provision, which was primarily aimed at the double prosecution aspect.

Clause 3 of the Bill aimed to amend section 16 of the Act in a similar fashion to section 15. It was merely a repetition of the proposed amendments in relation to section 16 of the Act.

Clause 9 of the Bill also applied to the Teddy Bear case. Section 56 of the Act had dealt with the ability of a person to be able to call on a defence in the case of a prosecution under section 16 of the Act, where the age difference between the accused person and the child was not more than two years. However that provision became redundant as a result of the proposed amendments to sections 15 and 16. Clause 9 merely aimed to   repeal paragraph (b) of section 56.

The last provision which dealt with the Teddy Bear case and was also a necessary consequence of the judgment itself, was the introduction of a new section. The new section dealt with the removal of a particular individual from the Register of Sexual Offenders, and expungement from certain criminal records under the Sexual Offences Act. This related solely to children who might have ended up with criminal records as a result of having been convicted previously for an offence in terms of section 15 or 16. Mr du Preez reminded the Committee that a a conviction under this Act would have two consequences; the first was the person would end up with a criminal record and the second was that the person's name would automatically be included in the National Register for Sex Offenders. The provision aimed to address the concern that the criminal record of a child offender should be expunged as a result of the Constitutional Court judgment. This was based on an existing provision in the Criminal Procedure Act, which provided for similar procedures to be followed in order to clear certain criminal records. This meant that if an adolescent had been convicted of section 15 or 16 offence, and was a child at the time of the commission of the offence, the Registrar for the National Registry for Sex Offenders should automatically clear the child's name from that register. The South African Police Services criminal records centre should also do the same.

The J case was an interesting case, and followed on from what had been said earlier; namely that the original Act provided that if a person was convicted of a sexual offence, then that convicted person's name should automatically be included in the National Register for Sex Offenders. In the case S v J, J was a young child who was convicted of, among others, sexual offences against other children, and in terms of the Act it was noted that his name should be automatically included in the National Register for Sex Offenders. However, upon review, the High Court questioned the issue of a name being automatically included in the Register, without the convicted person being given a chance to address the Court on why the name should not be included in the Register. The case ended up in the Constitutional Court, which ruled that the provision was unconstitutional in so far as it related to automatic inclusion of the name of a person who was a child when the offence was committed. The Court decided that such an offender should be allowed to address the Court on whether the offender's particulars should be included in the Register.

Clauses 4, 5, and 6 were now consequential amendments as a result of the S v J judgment. In short, the Department had now amended section 50 of the Act to provide a description for the automatic inclusion procedure. It was proposed that a new paragraph (c) should be inserted in section 50. This would cover two situations. Firstly, if a prosecutor was of the opinion that notwithstanding the fact that the accused was a child at the time of the commission of the offence, particulars should be included in the Register, then the prosecutor should initiate the process and should apply to the Court for such an order. As part of that process, a probation officer would be required to provide a report to the Court, and the child would also be provided with the opportunity to address the Court as to why his or her particulars should not be included in the Register. This was reflected in Clause 7 of the Bill.

Provisions had also been made in Clause 10 for the Minister to make certain regulations. The regulations related to new procedures which would be included in section 51 of the Act, to provide for those cases where the particulars of a child might already have been included in the National Register for Sex Offenders. The child would be provided with an opportunity to make an application to the Court to have the particulars removed from the Registry.

Mr du Preez added that clause 12 also reflected consequential amendments to the Preamble of the Act.

The Chairperson noted that there were no questions from Members at this stage.

Subsequent discussions on procedure
During another Committee meeting, of the Select Committee on Cooperative Governance (comprising many of the same Members), Mr D Ximbi raised the Bill again, and suggested that this Committee should meet again on 18 June to look at the Bill, given the urgency.

Mr L Nzimande (ANC, KwaZulu Natal) asked the Committee Secretary to explain the process, and the requirements so that Members were quite clear what had necessitated the Bill. He pointed out that the Committee would have to get special permission for the sitting, as it was not on the programme. Furthermore, Members would be required to explain to their party leaders the critical points.

Mr G Dixon, Committee Secretary, noted that the Bill must be passed by 5 August 2015, the extended deadline set by the Constitutional Court. Ideally, Parliament would want to adopt the Bill before that time. The next available plenaries were on 23 June and 28 July 2015. The House would ideally want the Committee to adopt the Bill as early as possible, rather than leaving it to the last plenary, in case anything changed in the Parliamentary programme. Therefore, a request was made for the Committee to meet after the plenary on 18 June 2015.

He noted that the National Assembly (NA) was busy at the moment with the adoption of the Bill, so that it had not officially been referred from the NA to the National Council of Provinces (NCOP). The Committee could report only once the Bill had been referred to the NCOP, which would be later today, so the meeting for the next day would be the earliest time that Members could officially consider the Bill and adopt it. The Bill was a section 75 Bill, and would require the majority of permanent Members of the Committee to be present, not alternates. The Bill would be passed if a third of the permanent Members and a majority of the Members agreed.

Mr Nzimande emphasised what Mr Dixon had said, and pointed out that the plenary on 28 July was set aside for questions. The Committee should therefore focus on the plenary on 23 June, in order to meet the court deadline of 5 August. He asked Members to find time to process the special request for a sitting the following day, to deal with his Bill only.

Mr S Thobejane (ANC, Limpopo) said that taking into consideration the information provided by the Committee Secretary, Members should agree to meet the following day to adopt the Bill.

Mr J Julius (DA, Gauteng) expressed concern that six Members of the Committee had to be present, and thus asked the Committee to ensure that others received the message to ensure that they attended the meeting and took a decision on the Bill.

Maintenance Amendment Bill: Minister and Department's briefing
The Deputy Minister said an overall revision was being done of the Maintenance Act, by the South African Law Reform Commission (SALRC). The current amendments being presented in the Maintenance Amendment Bill (the Bill) were temporary amendments only, to deal with the most urgent matters, until the whole Maintenance Act was revised, and Ms Theresa Ross would provide more detail shortly. He briefly outlined that the first amendment was to make provision for interim orders, and there was nothing particularly controversial about that. If the person responsible for paying maintenance tried to delay (which did happen in many cases), the person seeking maintenance could ask the Court to grant an interim order. Other more controversial amendments were also included, that were similar to provisions in the Protection from Harassment Act. If the person seeking maintenance did not know the address of the person from whom she wanted to claim maintenance, but had a phone number, the Court could be asked to make an order that the cellphone service provider should supply the address of that person. Another point of controversy related to who should pay for that; originally, this point was not covered, but the National Assembly Portfolio Committee on Justice was concerned that the person seeking maintenance might not be able to pay for such a service. In the  Protection from Harassment Act, because there were not too many such applications, it was not up to the person requesting the order to pay. However, the Department had expressed some concern on this point as it related to maintenance, because the charges now were around R80, and if the Department was expected to foot the bill, and there were numerous applications, it could amount to quite a sum.

A further point which had raised some considerable discussion was the provision relating to the possible credit black-listing credit of maintenance defaulters; the Portfolio Committee had raised some concerns whether this was really the best mechanism to use, pointing out that if a person was blacklisted for credit, his economic productivity or ability to make money and thus support his child would be limited.  The problem was that there were many people who were supposed to be paying maintenance but were not, in many cases not because they could not afford to pay, but because they simply did not want to, perhaps as a way of getting back at the other parent. If maintenance was not paid, the normal Court procedure was for the other parent to apply to Court for property to be attached, something that had been and could still be done, although because maintenance was usually paid monthly, this could become quite an onerous procedure. The blacklisting now being introduced was intended to put more pressure on those who were meant to pay maintenance but defaulted. Those who could not afford to pay maintenance could also approach the Court  - for instance, if the person lost his job - and explain to the Court the change in economic circumstances, specifying what this was, and asking the Court to make a revised order for maintenance that was affordable.

The Deputy Minister stressed that these amendments were not intended to penalise people who were genuine about having problems with payment, but to penalise people who were deliberately trying to shy away from their obligations when they could afford to pay.

Ms Theresa Ross, Principal State Law Adviser, DoJCD, gave a more detailed explanation of the Bill. She said the Maintenance Amendment Bill  was amending the Maintenance Act, No 99 of 1998. As indicated by the Deputy Minister, the initiative was an interim measure, pending the completion of the full investigation by the SALRC.

She noted that over the years, users of the Maintenance Act (the Act) had identified various areas that required improvement, and the current amendments contained in this Bill were aimed at addressing the most pressing practical and technical problems experienced with the application of the Act. The document provided to Members stated that this Bill was due to be brought to the National Assembly for approval on 17 June, but that had changed and it would be considered on 24 June.
  
Ms Ross took Members through the clauses. Clause 1 was amending section 6 of the Act, to add another ground for investigating a complaint related to maintenance. It provided that a maintenance officer could also investigate a complaint related to maintenance where a good cause existed for the  substitution or discharge of a  maintenance   obligation, in the case of a verbal or written agreement, in respect of which there was no existing maintenance order.  

Section 6  of the Act had limited the jurisdiction where a complaint regarding maintenance could be instituted, confining it to the magisterial district of the beneficiary's place of residence. The provision had inconvenienced beneficiaries who might be working and residing in different magisterial districts. Therefore clause 1 also aimed to extend the jurisdiction of Maintenance Courts by permitting a Maintenance Court within whose jurisdiction the beneficiary worked or carried on business (or resided) also to be able to consider the case.
  
Clause 2 of the Bill was amending section 7 of the Act, which dealt with the investigation of maintenance complaints. It placed an obligation on mobile cellular operators to provide Maintenance Courts with   prescribed contact information of would-be respondents and maintenance defaulters, who were customers of the service provider. Clause 2 of the Bill provided that if the Court was satisfied that all reasonable efforts to locate the defaulter had failed, the Court could  issue a directive directing one or more of the electronic communications service providers to furnish the court with the defaulter's contact information. Ms Ross stressed that this would be a last resort, if the court was satisfied that all other reasonable efforts to locate the person (such as tracing by a maintenance investigator) had failed. 

The clause further provided that if the cell phone service provider was not able to comply with the direction of the Court within the time set by the Court, that provider could apply to the court for an extension of the time set. The provider could also apply for cancellation of the directive if the provider did not provide a service to the person identified in the directive or if the requested information was not available on the records of that cell phone service provider.
  
The tariff applicable to the Protection from Harassment Act of 2011 would apply to the information requested. The cost of providing information was to be borne by the State if the Court made an order to this effect, having determined that the maintenance beneficiary could not afford to pay the service provider's costs for providing the information.  The Court might also order the person affected by the maintenance order to refund the costs of getting the information from the service providers to the State. However, the Court would take into account relevant conduct of the parties to the enquiry, and make whatever order it deemed just on the costs of getting the information. Ms Ross said that this new provision would make a huge difference to the ability to finalise maintenance enquiries, and to finalise criminal cases pending against persons who contravened maintenance orders, whose non-availability at maintenance inquiries and Court proceedings delayed the finalisation of matters.
  
Clause 3 of the Bill addressed section 9 of the Act. In terms of that section, a maintenance officer could cause any person, including a person legally liable to maintain any other person, to be subpoenaed to appear before the Maintenance Court, to give evidence or produce documents. Clause 3 now would also permit a maintenance officer to subpoena the beneficiary of a maintenance order. She noted that this would usually apply where the person responsible for paying maintenance was applying for the reduction of maintenance amount or for the discharge of the maintenance order. The objective of this clause was to create certainty and dispel the misconception that only respondents could be subpoenaed.

Clause 4 of the Bill aimed to amend section 10 of the Maintenance Act, which dealt with maintenance inquires by the Court. Clause 4 was now placing a duty on the Court to finalise maintenance inquiries speedily, by limiting postponements.  The proposed amendment also gave   the Court discretion to make an interim order for maintenance, pending the finalisation of the matter, where it had become necessary to postpone  a maintenance inquiry.  As a safeguard, the Court, prior to making an interim order, would have to be satisfied that there were sufficient grounds to assume that the respondent had a legal obligation to maintain another person, and that the seeker of the order would suffer undue hardship if the matter was postponed without any interim order being made.   When making the final maintenance order, the Court might confirm the interim order, or set it aside, or make any other order deemed just in the circumstances.   This amendment would address the problem of those who, whilst knowing of an obligation to maintain another person, did everything in his power to avoid paying maintenance, causing undue hardship to those who were entitled to be maintained (and who were usually vulnerable people).
  
Ms Ross then described clause 5, which was giving effect to a Court judgment. She explained that section 16 (2) of the Maintenance Act   made provision for a mechanism by which maintenance could be paid by a third party - such as an employer of a person, or a pension or provident fund - who, in terms of a contract, would pay money on a periodic basis on behalf of the person owing maintenance.    In the case of Nkoele, the Court  ruled   that any Court contemplating making an order in terms of section 16 of the Act should afford the employer / fund an opportunity to comment on the feasibility of such an order before making it. Clause 5 aimed to give effect to the judgment and would ensure that the court heard the views of the third party prior to making an order against that person. However, in order to avoid the matter being delayed unduly, the Court could still make an order requiring a person or organisation to pay the money for maintenance if such a person or organisation failed to appear in Court. 

Ms Ross further explained that section 17 of the Act dealt with orders by consent, and did allow for a maintenance order to be made against any person, if that person had consented to the order in writing, with proof of that to be handed in by the maintenance officer at the inquiry. At present the Act required the parties to be present at the inquiry, even if the respondent had consented to the order or  if the beneficiary had consented to the reduction or discharge of the order. Clause 6 was now amending that section, to empower the Maintenance Court to make an order in the absence of the respondent or / and beneficiary, if the order being sought was  consistent with the consent handed in by the maintenance officer at the inquiry.  A copy of the maintenance order made should be served on the party who was absent from the inquiry.  This would save time for parties who did not wish to contest the order for maintenance.

Clause 7 of the Bill aimed to amend section 18   of the Maintenance Act which dealt with orders by default.    Currently, a Maintenance Court could only grant an order by default if the Court was satisfied that the respondent had ignored a subpoena.  Clause 7 would now empower a Maintenance Court to grant an order by default if the Court was satisfied that the person failed to appear in court when she or he was aware of the subpoena or failed to appear after having been duly warned by the court to so appear. A consequential amendment was also made to section 9, which provided that a maintenance officer who had instituted an inquiry in a Maintenance Court might cause any person to be subpoenaed to appear before the Maintenance Court and give evidence or produce any book, document or statement. 

The amendments in Clause 7 made it clear that a person in whose favour a maintenance order had already been made might also be subpoenaed by the maintenance officer, where the person liable for maintenance was applying for a reduction of the amount to be paid or for the discharge of the maintenance order.  She reiterated that this amendment would dispel the misconception that only persons liable to pay maintenance orders may be subpoenaed.

Mr J Julius (DA, Gauteng) interjected at this point to request that the Department should not go through the document word for word, as Members had already seen the document.

The Chairperson ruled that the Department could summarise the document in this briefing, agreeing that Members had the full document in front of them.

Ms Ross said clause 9 of the Bill was amending section 22 of the Act, which dealt with substitution and discharge of maintenance orders.  The amendment also aimed to give effect to a Court judgment, in which the Court had held that an order made by a division of the High Court could only be substituted insofar as the order of the Maintenance Court expressly or by implication replaced such an earlier order, and could not replace the entire order made by an earlier Court.

Clause 10 sought to amend section 23, by doing away with the discretion of the maintenance officer when transferring orders from one Court to another. The aim was to establish a uniform manner of transferring orders, as it had happened that different approaches had been used for several orders with similar facts.

Ms Ross noted that the Deputy Minister had earlier alluded to an amendment that would require that details of maintenance defaulters could be submitted to credit rating facilities, and this was to address section 26 of the Act. The purpose of the amendment was to prevent a person who owed maintenance from continuing to get credit whilst the maintenance debt remained unpaid.

Clause 12  expanded the instances where a Court might order the attachment of emoluments, to include instances where a Court ordered the attachment of a debt under section 30 of the Act, after hearing the employer of the defaulter. The amendment would force defaulters to pay their maintenance arrears.  
  
Ms Ross said clauses 13, 14, 15, and 16 aimed to increase the prescribed penalties under the Act. The penalties were to be increased from one year to three years imprisonment, and from six months to two years, respectively, for offences already set out in the Act. In addition, clause 13 would make it obligatory for details of a person who had defaulted on a maintenance order to be submitted to credit bureaux. This was removing the discretion of the maintenance officer, who "must" submit those details.

A new offence was created in relation to obstructing or hindering a maintenance officer from exercising his or her powers or obligations, and a penalty of two years imprisonment was proposed.

Clause 18 aimed to make a provision for a trial Court, at its discretion, to order that criminal proceedings be converted into a maintenance inquiry. The Court, in the case of Magagula, held that the question of whether the Court should convert a criminal trial into a maintenance inquiry should be left to the discretion of the Court, rather than being obligatory, as the Act had provided. This clause aimed to give effect to this judgment, and required the Court to consider the circumstances of each case and then make a decision whether the criminal trial could be converted into a maintenance inquiry.

Three of the clauses of the Bill would only be able to come into effect after regulations were promulgated, and it was suggested that they come into operation on a date to be fixed by the President in the Gazette, but it was proposed that the other clauses of the Bill should come into operation on assent.

Discussion
Mr Thobejane thanked the Department for the presentation and acknowledged the Deputy Minister's presence. He was concerned about the clause looking to the electronic communication service provider to provide information, when all measures had been exhausted to find a maintenance defaulter's address, and wondered if that might not be a violation of constitutional rights. People provided information to the service providers for a specific purpose and would not expect their details to be submitted to any other party without prior consent. He cautioned against making amendments that might create further challenges in dealing with the situation.

Mr Thobejane, speaking to the offences, asked whether imprisonment of maintenance defaulters was really the right solution. If the person was working, but for some reason failed to pay maintenance, and was jailed, he questioned how this would ensure that the beneficiary did not suffer, and questioned who would take over the responsibility of proceeding with the maintenance payments whilst the defaulter was in prison? He asked whether the Department had looked into the possibility of intensifying or strengthening the garnishee order - perhaps if a person had defaulted on maintenance payments several times, the maintenance payment should be obtained directly from the employer instead of imposing imprisonment. Imprisonment would create two challenges. The first was a social challenge of sustainability; even a defaulter still had a right to be able to sustain himself. Secondly, imprisonment could cause the defaulter to lose his job, which would then cast a liability on the State to support him on his release. He appreciated this was a difficult situation, with no quick-fix solutions for dealing with defaulters. He requested the Department to exercise more care and look into alternatives to ensure that that appropriate recommendations were made that would not cause more problems.

Ms G Manopole (ANC, Northern Cape) asked for clarity as to what was meant by "organisation" in clause 5 and asked if the Department could define it, whether it included companies and pension funds. The Bill also sought to give a hearing to another party, in respect of garnishee orders, and asked why, in the case of defaulters, a hearing should be given to a company or organisation.

Ms Manopole was also concerned with provision of information by phone service providers. She fully appreciated that this was a tricky situation, and was aware of the frustration that many women suffered, as  so many people who should be paying maintenance were not. The attempt to track them through the cell phone service providers was an innovative solution, and she welcomed the attempts by the Department, but was concerned about the costs, and the possibly large financial burden on the Department, should there be many people seeking information who could not afford to pay. Most women would welcome the amendments, particularly the ones relating to the interim order, especially for those women who were not working outside the home, who had had to spend money on taxi fares to get to Court, sometimes several times, only to have matters postponed without the final maintenance orders made.

Mr L Nzimande asked a process question, and enquired if there were deadlines for passing this Bill.

Mr Nzimande commented that whilst some creative attempts had been made in relation to getting addressed from cell phone service providers, this could be difficult to enforce, particularly where people did not have contracts, as many people might have as many as six cell phone numbers. He agreed that the Department picking up the costs could be significant, particularly if debtors' addressed had to be sought across various networks. This would be a challenging aspect, the full extent only to be found once it was implemented.

The Deputy Minister responded to Mr Nzimande that the urgency was not so much in terms of a specific deadline that was Court-imposed, but all of these amendments did have a degree of urgency in that they would make administration of the maintenance matters much easier, so the sooner they could be implemented, the better.

The Deputy Minister said it was a pity that the Members questioning the costs of getting information from the cell phone service providers were unable to spend time with the Portfolio Committee, for this was an amendment that emanated from that Committee, who had been concerned with what would happen if the person who was trying to trace the defaulter could not afford to pay the service provider's charge. The DoJCD, for its part, was concerned about the lack of certainty on what this might cost the Department. That was why a provision had been put in the Bill for recovery of the amounts from maintenance defaulters who were traced. It was possible that cell phone companies might do what they had done with the Protection from Harassment Act applications, for which no charge was levied, but they could become less willing to do this under the amended Maintenance Act if there were too many applications.

He reminded Members that this was a section 75 Bill, so the NCOP would not amend it, but would recommend amendments. If the NCOP was unwilling to accept that, he strongly suggested that this Committee engage with the Portfolio Committee, because there was no point in recommending something that the Portfolio Committee would reject, as this would simply delay matters further. The National Assembly did have an override power over section 75 Bills, although section 76 Bills went to mediation.

The Deputy Minister stressed that whilst the Bill was gender-neutral, it was primarily fathers from whom maintenance was being sought, although he was not sure if there were statistics giving the exact figures. There were other provisions in the Bill which assisted the maintenance payer (generally the father), but in general there was a problem of men not paying maintenance when it was due.

The Deputy Minister noted Mr Thobejane's concerns about privacy rights, but pointed out that any right could be limited, and privacy rights could be limited by the reasons why the information was being sought. He pointed out that similar provisions had been accepted and applied in relation to the Protection from Harassment Act, in relation to finding out information on people stalking, and it would be acceptable and legitimate for information to be given on a man who had impregnated a woman and run away from his responsibility for the child also. However, this was not automatic, and it did not mean that every person wanting the address would be able to get it. The Court must decide on the matter and give an order and this Bill was merely empowering the Court to make such an order. The Court would look at all the factors, including how the person wanting information could establish paternity.

He added that the intention behind the imprisonment sanction was to persuade people to pay maintenance. He repeated that if the circumstances of a person responsible for paying maintenance had changed, making the person unable to pay, he could approach the Court and explain, with proof, how his circumstances had changed. The intention was not to penalise but to persuade. This was not the same as customary law, where a standard penalty would apply. The amount of maintenance would depend on the circumstances of the father, and how much money he was earning, and what his other commitments were, including other children. There were circumstances where fathers would say they could not afford a certain figure for maintenance because of monthly car or DSTV payments, and here the Court should say that the child's welfare was more important than these material possessions. The imprisonment was in the nature of a threat, for obviously it was far better if the father could be economically active to be able to pay maintenance. He did not know how accurate the stories were of some fathers getting so annoyed at being required to pay maintenance that they might resign from their jobs. This was a very emotive issue, and often there was great bitterness, but he maintained that the threat was important to deal with "some very repulsive gentlemen" intent on not paying.

Ms Ross confirmed that the provision for obtaining information from cell phone service providers had already been tested in the Protection from Harassment Act, and added that the Protection of Personal Information Act allowed for this kind of action, when it would be in keeping with other provisions in the lac such as this Bill, when it was enacted.

Ms Ross also commented on the issue of imprisonment and whether this was too harsh a penalty, or would deny payment of maintenance to those entitled to receive it. This had been debated at length in the Portfolio Committee. The Department did not have statistics to hand now on the rate of failure in complying with Court orders and pay maintenance, but did know that it was particularly high, and continued to be a problem despite other interventions by the Department. As the Deputy Minister had indicated, imprisonment was not something that the Courts would readily order, and this was one of the reasons why the Act was now to contain a provision that a court hearing a criminal matter could decide to convert that to a maintenance inquiry. In this way, the Court would be able to learn more about what had prevented the person obliged to maintain another person from paying maintenance.

Ms Ross confirmed also that the question of costs for obtaining information on persons who could not otherwise be traced had also been debated at length in the Portfolio Committee, which had come up with the form of the clause now presented. The Bill now contained provisions to alleviate the burden of costs to the State, for this was not a blanket provision that automatically required the State to pay the costs of tracing through a cell phone service provider. She reiterated that this would be used as a last resort, when the Court had established that the person could not be traced by any other means, including tracing by the maintenance investigator. The Court would have to conduct means test enquiries, and if the defaulter was found through this method, he could also be ordered by the Court to refund the State the amount paid for tracing. The Bill also empowered the Court to have regard to the conduct of the parties in the inquiry.

Ms Ross explained the references in the Bill to an organisation. The relevant person who should address the Court on the feasibility of the order could be either an individual who had an obligation to pay the person against whom the order was being sought (a debtor of the respondent), or a company that employed that person. Obviously, a company would address the Court through a representative of that company, and the whole purpose was so that the Court could make an effective judgment that could be enforced. The third party who would be making the payments on behalf of the maintenance respondent should address the Court on whether such an order would be feasible. For instance, the systems of the employing company might not be amenable to making deductions and channelling them to the Court, and hearing this from the company representative, in advance, would save the Court from making an order that was not appropriate. There was a safeguard in the Bill that if a person, company or organisation did not appear in Court to address the Court on the feasibility of the order, the Court could still proceed to make an order, if a further postponement would cause undue hardship to the person entitled to maintenance.

Mr G Michalakis (DA, Free State) asked whether the DoJCD had any scope for negotiating the R80 tariff with the service providers, and whether it had tried to engage in negotiations with service providers to check if lower costs were possible.

Ms Ross responded that although the Department had consulted with the cell phone service providers on this provision, among others, it was the amount set for similar situations in the Protection from Harassment Act, and engagement on that would be subject to consultations in respect of that Act also. There had been complaints that service providers were not being paid even though this had been prescribed under the Protection from Harassment Act, and they had asked for the provisions of the Maintenance Bill to be further tightened, so that they could be paid even before the service was rendered.

Mr Michalakis on behalf of the Committee, thanked the Department for the presentations, and commented that this Committee could depend on the Department attending and giving high quality presentations.

The meeting was adjourned.

 

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