The Special Investigating Unit’s (SIU’s) submission on the Bill in the main dealt with a concern about the submission of progress reports. First, the concern was raised that the use of the word person in clause 4(1) (b) would make the scope of persons who may request such reports too broad, to the extent that persons under investigation would be able to request such a report. Secondly, the SIU held that under clause 4A (2) there should be a positive prescription of what can be contained in such a progress report, along with a discretion on the part of the head of the Unit to determine the content which was reasonable in the circumstances. Other technical concerns were raised, such as the absence of a provision for reporting to Parliament.
Members agreed that a provision should be included allowing progress reports to be requested by Parliament. Further, it was questioned whether the provision proposed for clause 4A (2) would be sufficient for the protection of whistle-blowers and whether allowing Parliament to discuss reports, such as the Nkandla report, could harm civil litigation which was currently underway. Lastly, it was suggested that a clause be inserted to ensure that a request for a progress report could not be unreasonably refused.
A collaborative submission was presented by the Community Law Centre, Women’s Legal Centre and Centre for Child Law dealing with the requirements for the executive to report on the implementation of the Criminal Law (Sexual Offences and Related Matters) Amendment Act and the Child Justice Act by the executive. The above was set to be amended by clauses 15, 16 and 19 of the Bill. The submissions essentially dealt with three aspects of the amendments as contained in the Bill: the general importance of high level political oversight over the implementation of these important pieces of legislation, the effect the amendments would have on the current standard and manner of reporting as required under the legislation; and proposals for minimum reporting requirements which ought to apply regardless of whether the Bill was passed in its current form.
It was submitted that in these important and fledgling areas of regulation that the legislature, in line with international best practice and law, intended for there to be a high level, intersectoral executive oversight over the implementation of the Acts. Therefore the Minister of Justice and Correctional Services was required to submit a report compiled by an interdepartmental committee of director generals on the implementation of the Acts. This oversight would also have the effect of requiring the Departments to work together on planning and implementation, avoiding Departments working in isolation. Presently, although the reporting had not reached perfection and still focused on quantitative elements that it still had the positive effect of ensuring that Parliament and civil society was informed of the ongoings in the sector in a single comprehensive and dedicated report.
The amendments proposed in the Bill would have the effect of watering down the reporting provisions, because instead of requiring the involvement of the interdepartmental committees the information on the implementation of the Acts would be relegated to a section in the various Departments’ annual reports. This would rob Parliament and society of the opportunity to be comprehensively appraised of the effect of programmes and spending towards the implementation of the Acts. Further, the amount of information may be reduced, as the annual reports dealt with a variety of matters including performance and spending of Departments. Lastly, placing this information in annual reports would mean that the information would have to be sifted out of lengthy documents, instead of having a single comprehensive report.
While the submissions did not propose alternative wording, the amendments were not supported. The submissions however suggested minimum reporting standards so that the reports provided would be consistent and present information which would better depict the state of implementation and effect of the legislation. The suggestions included requiring certain statistical information, but also information of a qualitative nature such as stakeholders’ experiences coming into contact with the implementing departments.
The Department of Justice and Constitutional Development representatives, while not taking a position, suggested that the minimum reporting standards could be contained in regulations. This was generally acceptable to the presenters.
A Member asked whether the amendments proposed in the Bill could not be seen as ensuring that at least some information will be presented on an annual basis, given that Departments had many legislative injunctions to report on several matters and these often fell by the wayside for several reasons.
The presenters, while acknowledging the difficulties with reporting, felt the quality of the information would suffer and the integrated approach to implementation by the Departments would be lost.
Submission by the Special Investigating Unit
Mr Gerhard Visagie, Acting Head, Special Investigating Unit (SIU), said the previous time the SIU had been before the Committee it had touched on the issue of the Judicial Matters Amendment Bill [B2-2012] (the Bill) and particularly on the matter of reporting.
The SIU reported to the President, and did not report to anyone else until matters were finalised or there were outcomes which were already in the public domain, such as civil or criminal proceedings. This approach was fraught with difficulties and the SIU had been criticised heavily by certain entities, including the Committee, for not sharing information. There was a need to adjust the approach and allow some reporting to entities with an interest in the matter.
The SIU’s submission referred to clause 4a of the Bill. In clause 4a (1)(a) it was submitted that where it read “must on a quarterly basis report to the President and Cabinet Member responsible…” this should state “submit a provisional report”, to distinguish this duty to report from the normal reporting duties under section 4(1)(f) of the SIU Act.
In 4a (1)(b) it was suggested that the words “subject to subsection 2 whenever he or she deems it necessary” should be added to the sentence “whenever reasonably requested by”. The SIU felt it should be allowed to submit reports of its own accord. It was important to explicitly state that requests should be reasonable, as the SIU feared being inundated with unreasonable requests.
Section 4A (1)(b)(ii) - (iii) seemed to forget the third tier of government. The SIU often did investigations at the municipal level and this ought to be brought into the scope of the Bill. This was an oversight in the drafting. The municipal council should be in the position of accounting officers at other state institutions.
Under 4A (1)(b)(vi) Portfolio Committees were left out and it was suggested that any Portfolio or other Committee of Parliament be included.
Persons empowered to request reports
Persons who could request reports from the SIU were outlined in Subclause 4a (1) (b) and included the premier, the executive authority of a Public Finance Management Act (PFMA) institution or local government, National Treasury, the Auditor General of South Africa, the South African Revenue Service and any other state institution or regulatory authority with locus standi to instituted proceedings.
The language further allowed other “persons” to request reports, which meant that any person who had an interest in a matter would be able to request information from the SIU. The SIU believed that if this opportunity was granted by the Bill, then SIU would be inundated with requests for updates from a wide range of people, including civil society, political parties, but most notably suspects.
This was believed to be untenable. For example, an investigation was previously done at South African Social Security Agency (SASSA) where through a data analysis it was discovered that there were approximately 40 000 civil servants and 265 000 non-civil servants who on the face of it appeared to be non-qualifying beneficiaries. Under the provisions of the Bill any of these people could have asked for a progress report from the SIU and any one of the 2.161 million public servants could ask for a report to find out if they were part of this 40 000. These people could argue that they had an interest in determining whether they were one of the affected persons. It was believed that this will open the door to litigation.
The Chairperson said the Bill was intended to deal with practical problems, but the clause referred to seems to create a practical problem. One would have thought that the people with the interest were the ones in government who wished to have a matter investigated and not the people subject to the investigation. He therefore wanted an understanding of how the inclusion of this term had come about.
Mr Visagie responded that the SIU had enquired about this matter with the representatives of the Department of Justice and Correctional Services. The response had been that Section 22 (g) of the SIU Act dealt with possible investigations where no state institutions or money was involved, but where the public was affected by particular conduct. In all the years of the SIU’s existence Section 22 (g) had never been used and therefore it was an extreme exception. If one were to legislate for that route, then it should perhaps be linked to section 22 (g), but in the SIU’s opinion this was the wrong option. Further, taking away the word “person” would not affect rights which were contained elsewhere. These persons would still be entitled to bring an application under the Promotion of Access to Information Act (PAIA) and to restate these rights in the present Bill would simply be a restating of rights contained in other legislation.
Clause 4A (2) made no provision dealing with the content of a progress report. This was where the matter became complicated and where problems had been experienced in the past. The wording suggested was:
“for the purposes of sections 4(1)(h) and 4A (1), the head of the SIU will have a discretion concerning the level of detail that will be included in a report on the progress of an investigation and matters brought before the special tribunal concerned or any court of law, without limiting the generality of the aforementioned discretion the head of the SIU will only be required to provide the following level of detail: the mandate of the SIU, any legal proceedings which have already been instituted, the number of criminal referrals made to the National Prosecuting Authority, the number of referrals made to the Asset Forfeiture Unit and the target date for the completion of the investigation. The mandate will be as derived from the presidential proclamation, while the indication of the numbers of people referred to various institutions will be done without disclosing the names of the people so referred.”
The SIU was not married to the list of detail proposed and if the Committee felt anything else should be included that would be helpful.
This provided a legislative provision about what could or could not be reported on. The SIU believed that leaving the progress report undefined would potentially cause litigation. The ordinary meaning of progress report would include how much of the work was completed, how much work remained to be done, and what unexpected problems had been encountered. This scope was too intrusive when dealing with an ongoing investigation.
As it stood, the effective administration of justice and successful outcome of investigations may be jeopardised. The investigative methodology and safety of witnesses and whistle blowers could also be jeopardised.
This would be eliminated if there was a definition of progress report. In the SIU’s submission this was defined through the wording read out above under clause 4A (2). An alternative to this proposal had also been drafted and it was styled in a negative manner, where the SIU was obliged to report, but excluded all the instances where the SIU ought to be exempt from reporting and these exemptions mirrored the provisions in the PAIA. The problem with negative phrasing was that this could also lead to litigation, because it was not being stated what the SIU could report on and further these were already rights which people enjoyed under PAIA.
Adv Lawrence Basset, State Law Advisor Department of Justice and Constitutional Development, said the Department would respond the following week and was favourably considering some of the submissions made by the SIU.
Mr S Swart (ACDP) said he would support the removal of the word “person”, because there was a compelling argument. It would be remembered that in all the years the SIU had presented to the Committee the Members had always requested more information and detail which the SIU had not been able to provide. Therefore the first option for clause 4A (2) was the better option.
Bearing in mind the first option, he wanted to consider to what extent the publication of progress reports would inhibit or harm whistle-blowing and this was where the SIU’s discretion would have to be carefully exercised. Particularly at the local government level, witnesses were sometimes intimidated. Was the SIU satisfied that the definition proposed would prevent such occurrences?
He fully supported the information coming to Parliament, but perhaps it would be best for the clause to read National Assembly. It was important that Members were also able to request information. He wanted to speak to principle, because the SIU’s Nkandla report was being considered and it would be out of order to discuss the detail, the principle there was to look into the SIU’s report in a lot of detail regarding the progress of the civil matter. He appreciated that it was not necessarily sub judicae, but to what extent would such discussions be harmful to the SIU’s civil litigation. This links to the reporting and he had expressed the opinion that it may harm the SIU’s civil litigation to have detailed discussions of the claims in another forum.
Mr Visagie responded that the first option for clause 4A (2) adequately protected whistle-blowers, because it dealt with matters which were public knowledge and to bring these into a report would do no harm. The caveat to protect the names of whistle-blowers was supported by the SIU.
The Committee knew best which committees the SIU should report to, but the SIU’s contact would be with Portfolio Committees.
He understood that the questions regarding the Nkandla report were not the present matter of discussion, but the SIU had completed its report and the President made this document public and it therefore could be discussed. As far as debating its merits, the SIU was in a difficult position with the report having been compiled by Advocate Vas Soni (SC) who was the then-head of the SIU with the assistance of one of the most prominent senior counsels from the Johannesburg bar. The approach decided upon was collectively agreed to by some of the best legal minds in the country and it was put forward in that manner. It was in that manner which the SIU decided to proceed with the litigation. It would not be of much assistance for him to second guess decisions made by his predecessor and parts of it were sub judicae.
Mr M Redelinghuys (DA) welcomed the submissions by the SIU and agreed with the removal of the word “person” from that subsection as was too broad. He felt it may be appropriate to insert a subclause (c) to indicate that a request in terms of subclause (b) may not be unreasonably denied. This would mean that the discretionary powers were present, but it was clear that this decision could be reviewed based on the well-developed definition of reasonable in law.
In the submission on clause 4a (2), he felt that “the head of the Special Investigating Unit will only be required” ought to read “will be required to provide the following levels of detail”. He also had a concern with the alternative to the above, because instead of providing discretionary power he felt it placed a statutory limitation on the information that could be provided. He felt it important to provide the discretion and not place limits on the range of discretion in law. It would make it difficult for both the SIU and the parties requesting the information.
Mr Visagie said the SIU noted the suggestion about requests not being unreasonably denied, although it was felt that this was implied in the draft. Regarding the removal of the word only, if it would help make the section clearer then there was no objection. He wanted to make it clear that where the proposal was made as to what ought to be included in the progress reports the SIU was open to suggestions as to any other aspects which should be included, as long as there was legal certainty on what could be reported on and what could not be reported on regarding an on-going investigation.
Submission by the Community Law Centre
Ms Samantha Waterhouse, Head Parliamentary Programme, Community Law Centre, commented on clauses 15, 16 and 19 of the Bill. Clauses 15 and 16 amended the Criminal Law (Sexual Offences and Related Matters) Amendment Act (the Sexual Offences Act) and clause 19 amended the Child Justice Act. The amendments were to do with reporting by the executive to Parliament on the implementation of these two pieces of law. She spoke to the broad topics of oversight and accountability, the following parts of the submission would speak to the Sexual Offences Act and Child Justice Act respectively. The clauses essentially dealt with reporting by the executive to the legislature. Although reference was made to clause 16 it became moot if the rest of the submission was accepted.
Oversight and accountability in the Sexual Offences Act and Child Justice Act
It was useful to note that there were broader mechanisms to establish good governance systems for accountability, monitoring and reporting. These sections in the Acts provide for the establishment of national policy frameworks for the Sexual Offences Act and a separate one for the Child Justice Act. This included intersectoral committees between Director-Generals across different Departments. The policy frameworks also allowed for operational intersectoral committees and provincial committees.
Currently the provisions were very similar and both provided that the Cabinet Member must consult with a range of other Cabinet Members and report to the legislature within the first year of the laws implementation and then annually thereafter. What was important was the ministerial level involvement in the oversight and the implementation of the Acts.
To implement either of these Acts a collaborative and inter-departmental response was required. The Committee had often spoken of the difficulties created by Departments working in silos. The effect of these provisions was that Departments jointly monitored the implementation of the Acts. The laws were explicit regarding the role of the legislature and she was sure the Committee was aware of the report of the independent panel assessment which recommended the importance of building oversight into legislation.
It seemed to civil society at the time that these were a good set of provisions and it applauded the legislature’s decisions around the provisions. These were exemplary in that there were not many pieces of legislation which were as specific in saying that there had to be a role regarding reporting on progress with these issues to the head political accountability institution. At the time of the deliberation on these Acts she had worked at Rape Crisis and had been present for the deliberations. It was clear that the Committee’s thinking in putting in these provisions was firstly a recognition that there would be challenges with implementation and that there had been significant overhauls of both the child justice system and for accessing justice with sexual offences.
She remembered sitting in the Committee, where Members had emphatically stated that they must retain political oversight over implementation, because they were concerned that if the law was simply passed that it would not be implemented correctly. At the time civil society was very enthusiastic about what was coming out of the Committee. It was recognised that to implement properly high level political oversight was required for guidance.
The clauses in the Bill used very similar wording and it could be seen that they targeted similar sections. What the amendments effectively did was to move the accounting down from ministerial to director general level, because it required reporting in line with the PFMA in the annual reporting processes. Further, it no longer required intersectoral committees or dedicated reports on the Sexual Offences Act or Child Justice Act. Rather sections on their implementation will be included in the normal Departmental annual reports.
At present there was a report which was contributed to by five or six Departments to give a full picture of the implementation. This integrated monitoring and reporting would be lost and deprive the legislature and civil society of having an integrated idea of how the implementation was going and where the problems were. Annual reports were there for a different purpose from the dedicated reports and were there to deal with the spending and not to tease out the detail. The Bill stated that the purpose of making these amendments was to further regulate the reporting and implementation on these two laws. However, it was submitted that the provisions in the Bill were not doing anything further and in fact watered down the current requirements.
If the amendments were passed what should be a high level integrated report would be reduced to a few paragraphs in a range of different reports. It therefore undermined the prioritisation given to these reports and the need for collaborative reporting and monitoring amongst Departments. Some research had been conducted on the extent to which the current provisions had been effective to date.
It could not be seen every time Departments had reported on the Acts’ implementation, but from what was on the paper stores and what was on record from Committees, there had been three meetings on the Sexual Offences legislation and five meetings on the Child Justice legislation. The most involved Committee in this regard have been this Committee, but regarding the Child Justice Act the Select Committee on Justice and Security had had meetings.
The law as it stood had not created enough consistency in parliamentary oversight. It was this Committee which had best managed to interrogate the reports and conduct the oversight. She alerted the Committee that there was also reporting requirements in the Domestic Violence Act, although this was more often dealt with by the Portfolio Committee on Police. However, it should be noted that there was also difficulty in implementing the Domestic Violence Act reporting provisions in the first nine years, but from 2008 an increase in the regularity and quality of reporting and oversight had been seen. The point was that although at this stage government was not doing as well as it could in implementing the reporting provisions, this did not mean that the provisions should be lost. Rather it should inspire an inquiry into what the problems were. There had been positive developments because of these provisions.
It was unusual to have a single Department reporting, usually it was four or five Departments. Further, there had been Joint Committee meetings in Parliament to examine the implementation of these laws. The implication of these provisions was that there was a greater quality of oversight being seen across the range of Departments. Although there had been problems, more Departments were beginning to report, if not annually then every two years. In the Departments’ annual reports the bare statistics were given, but in the more detailed dedicated reports nuances were found such as the number of cases struck off of the role and how many were withdrawn. This gave a much fuller picture of the system and how it was working from the information required under the current provisions. The inconsistency with reporting was noted and only once had the Committee called for public comment.
For both pieces of law a high level intervention was required, because South Africa was not in the position where it could say that sexual offences or the child justice system were sorted out and there was no longer a need for high level political intervention. There was some direction to the legislature in the (b) clauses of 15 and 19 that the Departments or institutions must account to a Committee or Committees of Parliament sitting jointly or separately as determined by Parliament. While this provided direction there was no absolute injunction.
The Money Bills Amendment Act clearly mandated the Committees to examine annual reports. This was a very positive injunction on the committees in law around the duty to conduct oversight. She requested the Committee to consider more strongly how they would ensure joint sittings. The submission did not propose wording although it was submitted that this Committee was in the best position to lead the oversight efforts. The demands on this Committees time were noted and this was why the proposal was not in wording and was more of a suggestion that some way be found for the Committee to conduct this oversight, for example through a subcommittee. If not through one of the institutional arrangements in Parliament that could safeguard the coordination that was needed.
It would be ideal to see the manner in which a range of departments were called to account standardised, so that it was not at the discretion of a particular committee. There should be prescribed minimum requirements for reporting.
There had been a positive impact from the present form of reporting, but there were still problems which meant the full impact was yet to be felt, which would be lost if the Bill proceeded.
The Chairperson said it was also important to look at informal arrangements in government, such as clustered departments and portfolios. There was a danger of over institutionalising matters, which may lead to government being unworkable.
Submission by the Women’s Legal Centre
Ms Sanya Bornman, Attorney, Women’s Legal Centre, said she would be speaking more directly to the amendments contained in clause 15 as it related to section 65 of the Sexual Offences Act. She noted that where her presentation overlapped with that of Ms Waterhouse that this be taken as a point of emphasis. Secondly, she would look into the impact of proposed amendments to section 65 and if there was time make some recommendations for reporting.
Intention of the legislature
Ms Bornman said that in the wording of the current provisions, great emphasis was placed on the proper implementation of both the Sexual Offences and Child Justice Acts. This was evident from the institutional and operational arrangements in sections 62 to 65 of the Sexual Offences Act. Through these arrangements the legislature had intended to make both practical arrangements and make a policy statement on South Africa’s stance on sexual violence. It was to be dealt with seriously, methodically and at the highest levels of government.
In terms of existing reporting standards it was clear that what was intended was to ensure high level accountability from the executive on the implementation of the Act and also identified specific ministerial and parliamentary roles. These were there for a reason and were to create inter-departmental, collaborative interaction, planning and reporting.
It was felt that having a lead Department, which in this case was the Department of Justice and Constitutional Development, was a key feature for the successful implementation of the Sexual Offences Act. It was a trite point that when it came to sexual offences a collaborative and inter-sectoral approach was required in government and even in civil society. Currently departments met at the director general level to plan, budget and coordinate implementation, with each department being given a specific role regarding sexual offences. This information was then fed through to the Minister who then reported to the Committee.
If the amendments which were proposed in the Bill were passed, as busy as this Committee was at present it may potentially be even more busy, because then reports would have to be received from individual Departments. Therefore, instead of receiving one integrated report which ran across all the relevant Departments, the Committee would have to pick out bits and pieces from the various annual reports, which may not be the most appropriate place to talk about this important piece of legislation.
Ms Waterhouse had already indicated that using annual reports as the medium of reporting would be a much more fragmented exercise. Sexual offences was by no means the sole focus of these reports. The Committee would then have to sit and identify the relevant information from each report, compared to a dedicated and integrated report received once a year from the Minister.
The potential impact was a watering-down of reporting requirements, contrary to international law obligations of South Africa, and this may result in undermining South Africa’s accountability. She referred to the United Nations handbook for legislation on violence against women, which outlined what was expected of member states when reporting on compliance with these international instruments. It spoke to providing for the creation of a specific multi-sectoral mechanism to oversee implementation of the legislation and report back to Parliament on a regular basis. It was the Womens’ Legal Centre’s opinion that sections 62 to 65 already created South Africa’s compliance with these requirements.
Such high level reporting was still required because since 2007 when the Sexual Offences Act became operational the number of sexual offences had remained at approximately 65 000 incidents per annum. This did not reflect the staggering amount of under-reporting around sexual offences. The reported conviction rate appeared to be quite high, with a mid-60% conviction rate from 2007 to 2015, but this was not in fact true when expressed as a percentage of reported cases.
For example in 2011/12 there were 64 514 different sexual offences, but the number of matters finalised in court for that year was only 6 913. The reported conviction rate was 65.1%, but this was only a percentage of the matters finalised and not a percentage of the number of reported matters. If this was worked out as a percentage of reported matters the conviction rate was only 6.97%.
Case attrition had also not significantly changed since 2007. Looking at research coming out of places like the Medical Research Council and civil society, there was still no great improvement for survivors and therefore this did not warrant a lowering of any accountability standards.
The reports which were currently being received had been tremendously useful for giving insight into what exactly was happening with sexual offences on the ground and the fact that the reports were integrated was one of the key reasons why they were so useful. It could be argued that these reports could be more focussed on the quality and impact of implementation on survivors of sexual offences, as well as the quantitative information seen in the reports.
Parliament was allowed to be robust in enforcing the reporting mandate contained in the Sexual Offences Act. Further, public participation through calls for comment and even participation in the intersectoral committee on implementation could be of enormous assistance, also to Parliament. The national policy framework already mandated the involvement of civil society and it could greatly enhance the ability of these committees to pick on where the problems were and what the experiences of survivors of sexual offences were in coming into contact with the various government departments which had a role to play in implementation.
The Department of Justice and Constitutional Development’s annual implementation report for the Sexual Offences Act for 2013/14 actually indicated that the national level intersectoral committee was in the process of co-opting civil society representation, but this was something which there was not really much information about, even after canvassing other colleagues in the sector. This was something which civil society would like to have an indication on from the Department, because it was positive development.
Recommendations for future reporting
Ms Bornman recommended that the focus for future reporting should be on the quality of the services which could be directly informed by the victims’ experience of the implementation. Looking at current reports there was a lot of useful quantitative information, but not enough qualitative information such as the impact of developments or new programmes. It needed to be known whether the initiatives and programmes were actually working and whether the spending was making a difference.
The national policy framework as it stood provided good guidance on what could be contained in these reports and the Departments which sat on the intersectoral committee could use it as a guideline for compiling these reports.
It was submitted that there were three areas of focus which needed particular attention. The first was intersectoral collaboration which was very important for the implementation of the Act. The national policy framework contained principle two which spoke to a multidisciplinary and intersectoral response to sexual offences. It recognised that an efficient and holistic response to the management of sexual offences required such an approach and was explicit that this was imperative at the local level to ensure improved services. Consequently it was felt that a report on the implementation of the Sexual Offences Act would not be complete without a reflection on the performance of the intersectoral committee itself, the extent to which there was cooperation and collaboration between Departments, whether civil society was engaged, whether there were interventions or programmes which resulted in joint development, whether there were mechanisms for joint planning and budgeting, whether resources were shared and monitoring and evaluation mechanisms for the intersectoral committee and the extent to which these were collectively developed and utilised.
The second recommendation was on universal norms and standards for implementation. The national policy framework provided for the establishment of such norms for the implementation of the Act. It was strongly believed that the year-on-year reporting should be uniform and consistent. While previous reports had been useful, they were not necessarily the same format nor do they necessarily report on the same matters. Going forward there needed to be an integrated approach to the collection, collation and analysis of data, especially statistics.
The quality of investigations and the quality of evidence collection needed to be discussed, rather than just the quantity of the investigations done. The latter was not sufficient for measuring the impact of implementation. The impact of capacity building initiatives also needed to be looked at for victims of sexual offences and case outcomes. The 2013/14 report had a lot of quantitative information about training, such as the number of initiatives and policemen trained, but what was not known was what impact these training sessions have had on the officers and on improving outcomes of cases.
The last recommendation was on resource allocation. The national policy framework listed specific principles which should inform budgeting and resource allocations. It was submitted that these provided an excellent basis for reporting on the implementation of the Act. Consequently, the Minister’s report under section 65 could make specific mention of physical and human resource allocation, skills development and more general resource allocation. This could include whether this had been jointly planned and appropriately costed for the progressive procurement and continual maintenance of the services at various services points. It could also note the extent to which equitable and appropriate allocation of human resources had taken place at every service point and the extent to which the number of human resources allocated in fact matched the amount of work, and the number and impact of learning programmes developed.
Ms Bornman said in conclusion that it was understood that interdepartmental collaboration and cooperative governance was a challenge and intersectoral efforts in civil society experienced the same tendency to work in silos. However, to have success with the Sexual Offences Act there needed to be collaborative work. Instead of changing the institutional arrangements around reporting and accountability, the reasons why it was not working well at present should be dealt with, so as to avoid “throwing the baby out with the bathwater”.
Submission by the Centre for Child Law
Ms Zita Hunsangule, Project Coordinator, Centre for Child Law, described how the amendments to section 93 of the Child Justice Act lowered the high-level and substantive reporting. She gave an overview of reporting and oversight and how the proposed amendments would hinder improvement, and discussed the minimum reporting requirements being suggested.
High-level and substantive reporting
The Child Justice Act was the first Act to create a separate system of justice for children in conflict with the law and could be characterised as one of the most progressive in the world. This new justice system was one which fully took into account the rights and best interests of children in conflict with the law as mandated by section 28 of the Constitution. It placed an obligation on different duty bearers, including government departments, to create and foster private and institutional environments which provided child offenders with the best possible opportunity to become contributing members of society. This system did not look at children as just offenders, but treated them as malleable individuals who could develop, mature and grow with different interventions.
The Child Justice Act did a number of things, including creating diversion programmes, allowing for preliminary hearings and allowing for referral to children’s courts. This provided for rehabilitation, reintegration and a betterment of their environments. Section 93 as currently formulated ensured the development of clear baseline information which was essential for planning and monitoring of policies, programmes and processes, as well as providing focus for different actors in the justice system. It also required local and national level institutions to collect and report on information about individual children which they were responsible for, to ensure they do not slip through the cracks. It further ensured that relevant polices for children in conflict with the law were regularly assessed by both local and national institutions. This pointed to why the success of this Act was reliant on effective monitoring and reporting on its implementation at a high level.
Combining the reporting on the implementation on the Act into an annual report had specific risks, including the substance on the implementation of the Act being watered down. If the report was placed in an annual report the best that could be hoped for was one or two dedicated pages which would not give the substantive detail necessary to comprehensively analyse progress or gaps in implementation. Nor would it allow the determination of whether South Africa was conforming to a globalised children’s rights framework created by international instruments. South Africa was party to a number of such instruments including the United Nations Convention on the Rights of the Child and the African Charter on Rights and Welfare of the Child. All of these instruments were created to improve how children in conflict with the law were treated and to ensure that such children were given opportunities to improve themselves and become productive members of society.
It would also place Committees in the unfortunate position of hearing the information in a piecemeal manner, which would not go towards ensuring that departments did not work in silos. The Child Justice Act recognised that children were evolving beings and required assistance from different government departments and institutions, which included not only the justice system, but also social services and the health system. If the reporting was done in silos then it could not be seen how a child was receiving assistance from these different institutions. The purpose of section 96(3) of the Act envisioned the fulfilment of the requirements mentioned above and ensured high level accountability from the Executive, which was the most appropriate entity to do so, seeing as this was the first piece of legislation of its kind in South Africa.
To date the Department of Justice and Constitutional Development and other line departments had complied with section 96(3) and reported on a yearly basis. These reports indicated how many children had been through a preliminary enquiry, what sort of sentences the children received and how the number of children in prisons had dropped. This was all very useful information, but there were concerns such as the uncertainty over why the number of children diverted from the justice system had dropped and the reports had not been able to address this concern adequately.
There had also been inconsistencies in reporting and an example was the number of children charged with offences. The first report indicated how many children were charged with offences, but the second and third year reports gave statistics on the number of charges brought against children. As a number of charges could be brought against a single child it therefore could not be determined how many children had come into the criminal justice system. The fourth report did not seem to indicate how many children had been charged or the number of charges brought against children. Another example was that the fourth report did not contain the number of children assessed by probation officers and this information was important for planning and monitoring.
There were also positives which had come out of section 96(3). Without the reports it would not be known that there was a decreasing number of children in prison and alternatives were being used such as child and youth care centres. There was also a decrease in the number of children being used by adults to commit crimes. Information for planning and prevention was also being supplied such as statistics relating to the number of children who commit sexual offences which helped to determine the types of services which should be supplied to such children. All of this information was necessary and looking at the four implementation reports submitted improvements over the years could be seen. The first report had many problems, suggestions were made and corrections applied in later reports. There were still some gaps which needed to be filled, but this did not mean that the process should be abandoned all together, because it was a helpful process for the efforts of government and civil society in this area.
Proposed minimum reporting requirements
Guidance should be given on the reporting requirements, irrespective of whether the Bill was passed in its present form or not, because it was important to strengthen the oversight over the implementation of the Act. The Centre for Child Law submission gave a list of suggestions for reporting guidelines to be given to departments which generally related to qualitative reporting. For example, how many children go through the criminal justice system, what were the issues or gaps in this area, where do resources need to go and what resources need to be utilised? These requirements could also focus on policy improvements or the development of relevant policy. It was also important to look at the United Nations International Children’s Emergency Fund (UNICEF) manual for the measurement of juvenile justice which also contained guidelines on the qualitative indicators which should be looked at in the reporting standards. As mentioned this was a new system which was finding its feet and therefore the issues in the area needed to be identified with a view to remedying these concerns.
Mr Bassett said the presenters were proposing something further than what was contained in the Bill and there was a concern with the amendments in the Bill. The gist was that there should be something more positive relating to what was contained in the reports. He was not saying that this was the route which should be chosen, but perhaps a provision could be put in regulations around what the reports should contain. If the Committee were to agree to such a proposal it would be easier to change the contents of regulations. Perhaps one year the focus may need to be on certain aspects, but in later years this focus may need to change and then there will be a legislative instrument to guide what was in the reports. He asked for the presenters to give an indication of what they felt about this suggestion.
Ms Bornman said she felt that all three presenters and organisations would be in favour of such a move and regulations would be an excellent way of governing reports and ensuring that they were consistent.
Ms Waterhouse said the Chairperson had earlier made an aside comment about who comprised the network of organisations in the sector. The Committee should be familiar with the Shukumisa campaign which was the national voluntary network of organisations focused on sexual offences. It does not include every single organisation in the country, but it was a long established network. Officially established in this form in 2008 after the promulgation of the Sexual Offences Act, but in fact started working together around 1999 during the process of amending the old 1957 Sexual Offences Act. It was a long standing network of organisations and had just under 50 organisations in its advocacy network and a broader number of organisations in its communications network including academic institutions and national NGOs, but also community orientated organisations. Over the past five years an increase had been seen in rural practicing structures including both formal organisations and groupings in these communities contributing to the campaign. It was therefore relatively broad and should have an idea if a Department had made an approach to civil society. It would be quite strange if the people who have been approached were not in any way tangentially communicating into that network
The Chairperson said he had raised this because discussions about the law tended to be technical and sometimes people could not follow. Traditional communities represented the majority of people in the country and traditional councils had community meetings every week. There were also civic organisations in townships and it would be important to hear the thinking of these people on these issues, because they were directly affected. The operations of the civil society organisations need to be married to these groupings, so that a balance could be found.
Mr W Horn (DA) wanted comment on the proposed amendment to section 65 of the Sexual Offences Act and specifically practical considerations. He wanted to state that if the relevant departments were forced by legislation to enclose these reports in their annual reports it may assist Parliament and all in the sector to at least be able to depend on some form of annual report. He said this because a lot of reporting duties fell by the wayside, because of a lack of human resources or time constraints. Whilst if it was a duty in the annual report then government Departments seemed to be capable of regularly doing so. Perhaps this could bring certainty that at least on an annual basis stakeholders can be assured of some information.
Ms Bornman said whilst the point was taken, the difficulty was that what the legislature intended was for a broad, integrated and comprehensive report on the implementation of the Acts. It was an important piece of legislation which sought to address a really big problem in the country. The concern was that if it was relegated to the various annual reports, then something would be seen each year, but what was the quality of that information? How much was it really telling us about what government departments were doing in respect of sexual offences and how did it assist in providing an integrated and comprehensive insight into what was going on with the implementation of the Act? The current length of Annual Reports was approximately between 200 and 300 pages. To now try to add another aspect on sexual offences and to try to single out information on the Sexual Offences Act was perhaps not in keeping with the purpose of an annual report. It would be a difficult task to sift information out of various annual reports, as opposed to one broad, integrated overview with a lot of detail. As far as reporting went there would be a legislative mandate and it should not be relegated to the level of annual reporting.
The Chairperson asked if it was not found that poverty levels and socio-economic conditions contributed to the incidence of sexual offences. If so, was there any focus being given by the represented organisations on how this legacy of apartheid was to be dealt with, rather than just looking at the incidences and ignoring the root cause?
Ms Bornman said this was a very important point and it was this type of interrogation which was sought from the comprehensive annual reports from the intersectoral committee on sexual offences. It really was about moving away from simply reporting on the numbers and beginning to look at the root causes; the qualitative angle of what was happening in South Africa and why the incidents were happening. Further, whether the government and civil society’s plans and programmes were actually making an impact on the root causes. This was something which was going to be very difficult to include in an annual report, where Departments have to deal with a range of other legislation and their spending.
The Chairperson then declared the meeting adjourned.
- James Galloway submission
- Banking Association South Africa (BASA) submission
- Commission or Gender Equality (CGE) submission
- Joint submission by Centre for Child law; Community Law Centre, RAPCAN; Women’s Legal Centre; & independent experts, L Wakefield & L Vetten
- Special Investigating Unit (SIU) submission
- Law Society of South Africa (LSSA) submission
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