Compulsory HIV Testing of Alleged Sexual Offenders Bill; Judicial Matters & Public Protector Amendment Bill: SADC Protocol on Mu

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Justice and Correctional Services

03 March 2003
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Meeting Summary

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Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
4 March 3003
COMPULSORY HIV TESTING OF ALLEGED SEXUAL OFFENDERS BILL; JUDICIAL MATTERS & PUBLIC PROTECTOR AMENDMENT BILL: SADC PROTOCOL ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS & EXTRADITION; ALTERATION OF HIGH COURT AREAS OF JURISDICTION

Chairperson:
Adv J H De Lange (ANC)

Documents handed out:
Sex Offender HIV Testing Bill (as introduced on 28 February 2003)
Health Department Comments on the Compulsory HIV Testing of Alleged Sexual Offenders Bill (see Appendix 1)
SALC Fourth Interim Report on Aspect of the Law Relating to AIDS
Relevance of SALC Report to Bill
Proposed Amendments to the Judicial Matters Amendment Bill (Appendix 2)
SADC Protocol on Extradition
SADC Protocol on Mutual Legal Assistance in Criminal Matters
Notice on the Alteration of the Areas of Jurisdiction for which High Courts have been established (Appendix 3)
Public Protector Amendment Bill [B6-2003]
Judicial Matters Amendment Bill [B2-2003]
Department progress report on Committee resolutions: 1999-2002

SUMMARY
The Department of Health addressed the concerns raised by the Committee on the availability of HIV counselling for victims and alleged offenders and about the window period creating a false sense of security for victims.

The Committee was briefed on the proposed amendments to the Judicial Matters Amendment Bill and Public Protector Amendment Bill.

The Committee was briefed on the SADC Protocols on Extradition and on Mutual Legal Assistance in Criminal Matters.

The Department will discuss at a future meeting its progress report on implementation of Portfolio Committee resolutions and why it is difficult to implement them.

MINUTES
Health Department's Comments on the Compulsory HIV Testing of Alleged Sexual Offenders Bill
At a
previous meeting, the Committee had mandated the Department of Health to conduct research and provide a report on what services are available to assist the victims of sexual assault and secondly, on issues surrounding the window period of HIV/AIDS infection and how these issues should be phrased in the Bill.

Dr N Simelela (Chief Director: HIV/AIDS; Department of Health) noted that there are services which her department provides to victims of sexual assault, including counselling. The Department of Health has also developed a protocol in terms of which the Provinces are required to administer anti-retroviral drugs to the survivors of sexual assault. This is based on the scientific research which found that the drug could prevent the transmission of HIV virus from the offender to the victim within 72 hours after the assault. However, after that period had expired it cannot be proven, scientifically, that the drug would be beneficial. Notwithstanding this, the window period to determine whether a person has been infected with the virus is three weeks. Thus with the support of the Departments of Justice, SAPS and Social Development, the Department of Health would be able to provide ongoing support and training programmes for counselling purposes.

The Chair noted that the Committee did not have a problem to include this provision in the Bill, however the Departments of Health and Justice should formulate acceptable wording for the Bill. He asked if victims of sexual assault would be required to pay for these services.

Dr Simelela replied that the victims would not be required to pay since all the costs would be borne by the State.

The Chair noted that a provision requiring the Department of Health to formulate a national directive would be inserted in the Bill. This national directive, which would be distributed to all police stations and surgeries in the country, would be handed out to victims of sexual assault so that they would know about their right to have the treatment administered to them within a 72 hour period, to have counsellors provided to them and to have their perpetrators tested as soon as they are caught by the police.

Dr Simelela noted that the Department of Health does not have problem with such a provision being inserted in the Bill, since the victims have the right to know that the law protects their health.

Mr S Swart (ACDP) noted the false hope given to victims of sexual assault if the perpetrator's HIV/AIDS test shows a negative result. [The perpetrator could be tested during the "window period"]. He believed that as such, the focus should be on ARV treatment in the 72 hour post-rape period, which has been proven scientifically.

Dr Simelela acknowledged that the facilities which they have at the moment are not up to standard. However this did not mean that a window period cannot be provided. The Department is currently engaged in a programme, which would ultimately improve its service delivery and as the result some NGOs have also been invited to join the process.

The Chair also noted that the Department of Justice and South Africa Law Commission should conduct research on the possibility of the sexual perpetrator being subjected to testing for the purposes of a civil suit against him. It would be important for sexual assault victims to have access to such information.

Imam G Solomon said that both DNA and HIV tests should be able to be used - one is to determine the identity of the perpetrator and the other his HIV/AIDS status.

The Chair commented that DNA and its admissibility in court needs to be looked at and regulated. He said that the Department of Justice and South Africa Law Commission should conduct research on this.

Mr L Bassett (Head Director of Legislation: Department of Justice) noted that the Department would look at this issue and would also request the Law Commission to conduct research - bearing in mind the provision of Section 37 of the Criminal Procedure Act - and thereafter report back to the Committee.

Proposed Amendments to the Judicial Matters Amendment Bill
Ms M Ross (Department drafter) noted that the proposed amendments to Clauses 12, 15 and 20 are the result of a submission received from COSATU.

Mr L Bassett also noted that the amendments are very simple since they only stipulate what is required from the Minister before publishing a policy referred to in those aforesaid clauses.

The Chair noted that the members would be given an opportunity to consult with their parties regarding the proposed amendments before voting on them.

Public Protector Amendment Bill
Mr J Labuschagne (Department drafter) briefed the Committee regarding the purpose and objects of the Bill. The Bill proposes that the President should appoint the two Deputy Public Protectors, without the involvement of Parliament as is the case with the appointment of the Public Protector. He noted that the Office of the Public Protector has been consulted regarding this Bill.

The Chair stated that - based on his discussion with the previous Public Protector, Mr Selby Baqwa - the Bill is proposing something different. Mr Baqwa believed that people should be encouraged to work hard and have the opportunity to grow and be promoted. He requested the Department to submit a comment from the Office of the Public Protector, as this Bill might lead to political appointments being made. Surely this was not the kind of arrangement that the Public Protector would approve since it might result in none of his staff ever being promoted to Deputy Public Protector. This might also have a negative effect, as it would be difficult to recruit the best candidates for the Office of the Public Protector since no one would want to work in an environment where one would not be able to progress to a higher level. Mr de Lange was also of the opinion that there should be only one deputy public protector and not two. The Office of the Public Protector should be invited to comment on both these issues.

Mr B Magwanishe (ANC) believed that the government would be setting a wrong precedent if - when there is a disagreement between itself and a Chapter 9 institution - that it concedes to such an institution's demand.

The Chair acknowledged Mr Magwanishe's concern, however he noted that the government would not allow a situation whereby an independent institution alleges that its independence is under attack. It would not be a good reflection of the country's democracy and the best thing is to concede for the country's benefit.

SADC Protocol on Extradition
Mr E Allers (Department of Justice) noted that this is an extradition protocol in terms of Article 22 of the SADC Treaty. The Article states that member states can conclude protocols on any areas as long as those protocols would be able to promote cooperation and integration within the region. The President of the Republic, Mr T Mbeki, in the Summit of the Head of States held in Angola on the 3 October 2002 signed the protocol on behalf of South Africa. The Parliament is now required in terms of Section 231(2) of the Constitution to ratify it.

The Chair asked what would be the meaning of ratification of the protocol.

Mr Allers responded that the effect of ratification would be that South Africa would have an extradition treaty with countries such as Angola, Botswana, DRC Congo, Lesotho, Malawi, Mauritius, Mozambique, Namibia, Seychelles, Swaziland, Tanzania and Zimbabwe.

In response to Mr M Mzizi (IFP) asking if Zambia would also sign the protocol on extradition, the Chair responded that everyone hopes that they will, as they have not done it yet.

The Committee appeared to be in support of the protocol and will vote on the protocol on 11 Mach 2003.

SADC Protocol on Mutual Legal Assistance in Criminal Matters
Mr Allers noted that this protocol is for mutual legal assistance in criminal matters in terms of Article 22 of the SADC Treaty. This is based on the belief that South Africa has became a safe haven for the criminals and therefore if the Parliament can ratify this protocol since the State President had already signed the protocol, this could be prevented.

The Chair noted that the Committee supports the protocol as it is and would vote on it on the 11th Mach 2003.

Report on the Alteration of the Areas of Jurisdiction for which High Courts have been established
Mr Allers noted that this notice, which relates to the alteration of the High Courts' jurisdiction, is in terms of Section 2(1)(a) of the Interim Rationalisation of Jurisdiction of High Courts Act, 2001. The Judicial Services Commission had approved the notice and it is tabled before the Committee in terms of Section 2(2) of the Interim Rationalisation of Jurisdiction of High Courts Act, which requires Parliament to also approve notices of this nature.

The Chair noted that the Committee supports the notice as would vote on it on 11 Mach 2003.

Mr Allers noted that the following matters are in the process of finalisation and would soon be tabled for approval by Parliament:
- The United Nations Convention Against Trans-national Organised Crime and Protocols thereto has been submitted to Cabinet for its approval.
- They are still waiting a report from the Magistrate Commission on the misconduct of Mr RM Nongena, Additional Magistrate: Humansdorp.

Department's Progress Report on the Justice Portfolio Committee Resolutions
Mr Basset noted that some of the committee resolutions, which had been referred to the Department of Justice, fell outside the jurisdiction of the Justice Department and could not therefore be implemented.

The Chair noted that the discussion on the Portfolio Committee Resolutions would be deferred for the next committee meeting and urged the members to read the document in the meantime.

The meeting was adjourned.

Appendix 1
DEPARTMENT OF HEALTH
COMMENTS ON THE COMPULSARY HIV TESTING OF ALLEGED SEXUAL OFFENDERS BILL 2003.

BACKGROUND
The purpose of the Bill is to provide a speedy and uncomplicated mechanism whereby the victim of a sexual offence can apply to have an alleged offender testing for HIV and to have information regarding the test results disclosed to the victim in order to provide him or her with peace of mind regarding whether or not he or she has been exposed to HIV during the attack.

MATTERS RAISED BY PORTFOLIO COMMITTEE ON JUSTICE AND CONSTITUTIONAL DEVELOPMENT
Availability of counseling for victims and alleged offenders

In April 2002 Cabinet took a policy to provide anti-retroviral drugs for survivors of sexual assault in order to prevent transmission of HIV of the offender to the victim.

The protocol to implement this policy has been developed and distributed to all Provinces

Central to this package of care is the provision of counselling to the survivor of sexual assault prior to administering the HIV test and the drugs.

The National and Provincial Health Departments have been implementing voluntary counselling and testing for HIV over the last four years. Currently 998 facilities provide access to voluntary counselling and testing. In addition, provinces have trained a significant number of counselors for the PMTCT programme as well.

What may be necessary to support the implementation of this new 'Bill' will be
to ensure that there is coordination of programmes between Provincial
Departments of Health, Justice, Safety and Security, South African Police
Service and Social Development.

The National Department of Health will provide ongoing support and training for the health workers and lay workers for provision of counselling.

THE 'WINDOW PERIOD'
Concerns raised around the window period and creating a false sense of security for victims are valid. Extensive discussions around this were held during the deliberations of the Project Committee on HIV/AIDS and the Law.

Consensus was reached that the psychological benefit of providing information on the HIV status of an alleged offender to the victim were enormous.
The implementation of this application will allow for concerns regarding the window period.

The following points highlight how this will be effected:

1. All survivors of sexual assault should access the package of care which includes counselling, examination, provision of treatment for STI's, HIV testing and anti-retroviral drugs if they choose to.
2. When blood from an alleged sexual offender has been taken the following algorithm will be applied (see attached diagram):
a. A rapid HIV test will be applied to the blood to screen for HIV antibodies;
b. If the test is positive the result will be confirmed with a second rapid test. If this is positive - a diagnosis of HIV infection will be documented. The Rapid Test yields results within 20-30 minutes.
c. In this case the result can be provided immediately to the victim in order to ensure that he/she seeks appropriate care immediately.
d. In the event that the rapid test yields a negative result, the blood will be sent to the Laboratory for analysis using more sophisticated technology such as an Elisa or PCR. In this regard it will be possible to eliminate a false negative result due to the window period. This process will obviously take much longer to yield a result than the rapid test. The final result should be communicated within a week to the victim.

It must be emphasized that the cost implications of the implementation of the Act will have to be determined.

COUNSELLING FOR THE ALLEGED OFFENDER
The National HIV testing policy prescribes the parameters within which HIV testing must be done. In the case of mandatory testing discussions need to be held between the Department of Health and Justice on precisely how this Bill will be implemented.

Counselling for alleged offenders may present challenges given the fact that in some cases conviction may not be the final outcome.

If the alleged offender is not found guilty in the end could he/she not sue the Department of Justice for breach of their right to bodily integrity?

This matter may need further clarification in terms of constitutionality.

ALGORITHM OF BLOOD SAMPLES TAKEN FROM SEXUAL OFFENDERS

BLOOD SAMPLE


RAPID TEST (SCREEN)

NEGATIVE


2ND RAPIST
(CONFIRMATORY )


NEGATIVE


SEND TO LABORATORY

BLOOD SAMPLE


RAPID TEST (SCREEN)

POSITIVE


2ND RAPIST
(CONFIRMATORY)


NEGATIVE


SEND TO LABORATORY

BLOOD SAMPLE

RAPID TEST (SCREEN)


POSITIVE


2ND RAPIST
(CONFIRMATORY)


POSITIVE


SEND TO LABORATORY


Appendix 2
REPUBLIC OF SOUTH AFRICA
PROPOSED PORTFOLIO COMMITTEE AMENDMENTS ON JUDICIAL MATTERS AMENDMENT BILL

JUDICIAL MATTERS AMENDMENT BILL [B 2-2003]
CLAUSE 12
On Page 8, In Line 43, To Omit "Published In The Gazette And Tabled In Parliament" And To Substitute "Tabled In Parliament Before Publication In The Gazette".

CLAUSE 15
On Page 1 2, In Line 29, To Omit "Published In The Gazette And Tabled In Parliament" And To Substitute "Tabled In Parliament Before Publication In The Gazette".

CLAUSE 20
On Page 16, In Line 34, To Omit "Published In The Gazette And Tabled In Parliament" And To Substitute "Tabled In Parliament Before Publication In The Gazette".

PROPOSED AMENDMENTS TO CLAUSES 12, 15 AND 20 OF THE JUDICIAL MATTERS AMENDMENT BILL, 2003:
"(2) The Minister May Determine Policy For The Appointment Of A Curator Bonis, Trustee, Provisional Trustee Or Co-Trustee By The Master In Order To Promote Consistency, Fairness, Transparency And The Achievement Of Equality For Persons Previously disadvantaged By Unfair Discrimination.

(3) Any Policy Determined In Accordance With The Provisions Of Subsection (2) Must Be [Published In The Gazette And Tabled In Parliament] Tabled In Parliament before publication In the Gazette."

Appendix 3
REPORT SUBMITTED BY THE MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT REGARDING THE ALTERATION OF THE AREAS OF JURISDICTION FOR WHICH HIGH COURTS HAVE BEEN ESTABLISHED

1. The Interim Rationalisation of Jurisdiction of High Courts Act, 2001 (Act No 41 of 2001), has been passed to, among others, enable the Cabinet member responsible for the Administration of Justice, acting after consultation with the Judicial Service Commission to alter the area of jurisdiction for which a High Court has been established. The aim of the Act is to promote as a matter of urgency, the efficiency of and equity relating to the administration of justice throughout the whole of the Republic.

To give effect to the legislation, the Director-General; Justice and Constitutional Development, requested the Judges President of the various High Courts to take the initiative. Provincial teams were accordingly established. The teams comprised the respective Judges President, Directors of Public Prosecutions and Regional Heads of the Department. The task teams were guided by criteria such as access to justice, utilisation of resources1 constitutional imperatives, availability of resources, suitability of areas of jurisdiction, financial implications, and disparities in the old demarcation system.

2. In terms of section 2(1) of the Interim Rationalisation of Jurisdiction of High Courts Act, 2001, the Minister for Justice and Constitutional Development needs to consult with the Judicial Service Commission. 3 After the various Task Teams completed their investigation they made proposals regarding the alteration of the areas of jurisdiction of the High Courts to me. I have approached the Judicial Service Commission with a document reflecting these areas in respect of which sufficient consensus has been reached by the roleplayers. This document was placed before the Heads of Court meeting on V October 2002 for consideration. It was approved by the meeting except for the single amendment where the district of Brits was deleted where it was proposed that ii be excised from the area of jurisdiction of the Pretoria High Court and incorporated into the area of jurisdiction of the Mmabatho High Court. This document which is attached as Annexure A" was placed before the Judicial

Service Commission for consideration during its meeting from 8 to 11 Occtober 2002. The Commission after discussing the matter indicated its agreement with the proposals contained in the document. In the meantime further discussions with the various roleplayers are continued in an attempt to generate as much consensus as possible in relation to other areas.

4. Notices have been prepared which reflect the recommendations agreed upon by the Judicial Service Commission. These notices were technically scrutinized by the Chief State Law Adviser.

5. In terms of section 2(2) of the Interim Rationalisation of Jurisdiction of High Courts Act, 2001 (Act No 41 of 2001), notices of this nature must be approved by Parliament before publication in the Gazette.

6. A draft notice (in English and Afrikaans) is enclosed herewith for consideration by Parliament.

DR P M MADUNA, MP
MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT

Annexure "A"
Areas in respect of which sufficient consensus has been reached by the role-players:
Bloemfontein / Mmabatho High Courts
The Thaba' Nchu district to be excised from the jurisdictional area of the Mmabatho High Court and incorporated into the jurisdiction of the Bloemfontein High Court.

Cape Town / Grahamstown / Kimberley High Courts
-
The magisterial district of Willowmore to be excised from the jurisdictional area of the Cape Town High Court and incorporated into the jurisdiction of the Grahamstown High Court.
- The magisterial districts of Springbok (Namaqualand), Williston, Sutherland, Calvinia and Frazerburg to be excised from the jurisdictional area of the Cape Town High Court and incorporated into the jurisdiction of the Kimberley High Court.

Kimberley/ Mmabatho High Courts
The magisterial district of Vryburg to be excised from the jurisdictional area of the Kimberley High Court and incorporated into the jurisdiction of the Mmabatho High Court.

Mmabatho / Pretoria High Courts
The magisterial distriots of Lichtenburg, Coligny, Zeerust, Groot Marico, Swartruggens, Koster, Rustenburg and Delareyville to be excised from the jurisdictional area of the Pretoria High Court and incorporated into the jurisdiction of the Mmabatho High Court.

Grahamstown / Kimberley High Courts
The magisterial districts of Noupoort, Colesberg and Hanover to be excised from the jurisdictional area of the Grahamstown Hich Court and incorporated into jurisdiction of the Kimberly High Court

 

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