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SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
2 April 2003
DEPARTMENT OF JUSTICE ON PROGRESS WITH THE RESOLUTION OF THE PARLIAMENTARY TASK GROUP ON SEXUAL ABUSE OF CHILDREN: BRIEFING
Document handed out:
Department of Justice and Constitutional Development briefing on progress made with regard to prevention of sexual abuse of children
Final Report of the Parliamentary Task Group on the Sexual Abuse of Children
The Department briefed the Committee on the steps taken by the Law Commission, the Department and the National Prosecuting Authority to implement the recommendations of the Task Group, concentrating particularly on the work of the specifically designated sexual offences courts. Subsequent discussion included the following issues: the sexual offences courts, the collections of necessary statistics on conviction rates, the turn around time for sexual offences cases, doctors and testing in sexual offences cases, sentencing issues, the training of prosecutors and the judiciary in dealing sensitively with these cases, children in detention, child pornography and child trafficking.
Mr P du Rand (Chief Director,Court Services,Department of Justice and Constitutional Development) briefed the Committee on the progress on the implementation of the recommendations of the Parliamentary Task Group on the Sexual Abuse of Children.
The South African Law Commission had completed their investigation into sexual offences and handed their report and a draft Sexual Offences Bill to the Minister for Justice and Constitutional Development. The Children's Bill had been handed to the Department of Social Development.
Mr P du Rand said that they had worked in an intersectoral fashion in drafting, budgeting and implementing the Child Justice Bill and that this successful model of collaboration between the Departments of Justice and Constitutional Development, Social Development and Correctional Services would be followed regarding the Sexual Offences Bill and the Children's Bill. Issues should be dealt with in a holistic, and not in an ad-hoc, manner.
The Law Commission took the recommendations made by the Task group into account and the report and Draft Bill on Sexual Offences would hopefully be handed to Cabinet before the end of 2003.
In 1998 under the direction of the Deputy Minister of Justice, they had drawn up National Policy Guidelines for Handling Victims/Survivors of Sexual Abuse, to ensure that survivors were handled with dignity. Mr P du Rand added that in July 2002, the Gender Directorate distributed these guidelines to magistrates and prosecutors. Police were also being trained. Mr P du Rand said that the Prosecuting Authority and the Justice College were working together in order to improve training around how to deal with sexual offences cases.
Good relations were being built with the Health Department, who were updating their policy on dealing with sexual offences cases, the provision of AZT to rape victims, etc. Specifically dedicated centres had been established at hospitals for dealing with sexual offences. Mr P du Rand encouraged the Committee to visit such centres and to see the interaction between them and the courts.
The Task Group had recommended they look at the conviction rates for sexual offences. They were in discussion with the police and forging links with their record centres. Statistics could only be obtained from the police for offences up to 2001. The police was not easily giving up the information.
Mr P du Rand said that they were seeing a higher conviction rate for sexual offences and longer prison sentences.
Mr A Du Plessis (Head: Sexual Offences Section, National Prosecuting Authority, Department of Justice and Constitutional Development) said that in the specially established sexual offences courts, the conviction rate was on average between 70-80% and that the turn around time for court cases was much better.
Mr P du Rand said that there were 29 specifically designated sexual offences courts. They were busy auditing them at the moment in order to see whether they are meeting with the standards the Department requires (such as how they deal with the victims). The audit should be finished by the end of the month.
Although keeping statistics on conviction rates and other related matters was traditionally the responsibility of the police, the Department would now also be keeping their own statistics.
At the recommendation of the Task Group, cases should not be withdrawn without the consent of the Director of Public Prosecutions. This should help prevent withdrawals due to corruption.
The level of corruption in South Africa was historically very high. In the Draft Anti-Corruption Bill, 26 sections were aimed at closing the net around corruption especially for those forms not previously prosecutable. In terms of the new Bill, anyone who witnesses corruption but does not report it, is guilty of an offence.
The Department had set up a hotline for reporting corruption and fraud. They had received a good response and 107 cases had been reported in this manner.
Mr P du Rand said that 29 Sexual Offences Courts had been established (see document for details on locations etc). In this financial year (2003/4) they would endeavour to roll out 29 more. Eleven courts were close to having the necessary requirements. He hoped that more would be established in the rural areas.
DNA testing was a function of the police and that the Department supported the decision that it should be a centralised service.
Regarding Cautionary Rules, Mr P du Rand said that they did not support the complete removal of cautionary rules in sexual offences cases.
Regarding training of personnel at courts who deal with sexual offences cases, Mr P du Rand said that they had received substantial donor funding for this purpose and they were making it a priority, although it was not yet mandatory to receive training.
All personnel in the specially designated sexual offences courts had received training. They were working closely with academics in designing training. They were hoping to extend this training to the rest of the judiciary and the prosecutors. The training for prosecutors involved learning how to prepare a witness sensitively without influencing them.
They were also in the process of sensitising the judiciary and prosecutors around issues of gender and difference. One hundred and eighty regional court magistrates received training on the "judicial officer and the child witness" in November 2002.
Police officers were receiving training but there was still much to be done.
Mr P du Rand said that the Task Group recommended that a special category of vulnerable witnesses be created. The law Commission supported this and that it was contained to an extent in the Sexual Offences Bill.
The Task Team had recommended that the National Director of Public Prosecutions consider measures to ensure uniformity in granting of bail. This was receiving urgent attention and that the Department would keep the Committee informed of further developments.
The South African Law Reform Commission's project committee on sentencing had submitted a report on a new Sentencing Framework to the Department and it was being considered.
Mr P du Rand said that if the Committee would like a briefing on the Child Justice Bill they could organise this.
Mr Salojee said that they would.
Mr P du Rand said that they were trying to speed up the process regarding court case involving children as the accused, as well as looking at conditions of children in prisons.
Regarding the establishment of a register of sexual offenders, Mr P du Rand said it was to be dealt with in an intersectoral fashion and that work still had to be done in this regard.
Sufficient data was lacking on the commercial exploitation of children. He was therefore pleased that the Law Reform Commission had included in its programme an investigation into the trafficking of persons, but that the investigation was in its initial stages. The Commission also had on its programme an investigation into the impact of pornography on children. However the Commission was holding back on the investigation pending clarity as to the possible amendments to the Films and Publications Act by the Department of Home Affairs.
The Children's Bill contained prioritisation of the criminalizing of the trafficking of children.
The Department shared the view of the Task team in having a zero tolerance on the production, distribution and possession of child pornography. It was agreed to hold joint training sessions for prosecutors, police and magistrates on the combating of child pornography, which they should be starting before the end of May 2003. Sexual Offences and Community Affairs (SOCA) unit was arranging an international conference on child pornography.
Two new Directorates had been created by the Director General of Justice specifically to target abuses against women and children.
Mr M Waters (DA) asked why the Department did not support the abolishment of the cautionary rule. How had this taken place?
Mr Waters asked if the Sexual Offences Courts only dealt with sexual abuse and rape of woman and children. Did they have a regional or high court jurisdiction?
Mr Waters said it was great to see a reduction in the turn around time for cases, but he asked how this reduction in time was possible given that DNA testing sometimes took over six months to complete and that intermediaries often did not arrive at court.
Regarding the Health Department's role, Mr Waters said that some doctors were refusing to use the testing kits and that not enough were trained to use the kits and help the victims.
Mr Clelland-Stokes(DA) asked for more information on the issue of sentencing and asked for a practical example of the minimum sentencing in courts.
Mr Masutha (ANC) said that he understood that only eigth percent of cases end up in a conviction. Did the statistics given of the high conviction rate related only to the sexual offences courts and not to sexual offences cases in ordinary courts? Did the Department collect statistics from the ordinary courts as well as well as the sexual offences courts? Mr Masutha asked if the Department had a plan for collecting data in a context where they were not present at the beginning of the process when a case was started at the police station.
Mr Hollamby (Law Commission) stated that they were not against the abolishment of the cautionary rule for in general but only for single witness cases, where the case consisted only of an accuser and an accused.
Mr Hollamby said that the sexual offences courts only had a regional jurisdiction.
Mr P du Rand said that training was given to personnel in the ordinary courts too. They were currently collecting statistics from the sexual offences courts, but had established an operations centre to collect statistics from all over the country on a bi-monthly and even monthly basis in order to analyse the data and take the relevant action.
Mr P du Rand agreed that the DNA testing and the social development reports did take a long time and that the statistics they had given referred to cases in which DNA testing was not involved. Thirty nine Integrated Justice Centres (with representatives of the police, Social Development and Justice) were helping to channel the process in order to speed the process up.
Mr P du Rand said that unfortunately he did not have enough information regarding the issue of doctors refusing to carry out tests. Regarding minimum sentencing they were still investigating the necessary legal amendments and that he could not give the Committee any more information.
Mr Du Plessis said that the sexual offences courts only dealt with such offences against women and children. Some courts only dealt with women, some only with children and some dealt with both. They had a regional jurisdiction and could only give sentences up to fifteen years.
Mr Du Plessis said that the DNA testing sometimes took up to a year to be completed. They were struggling with this. They did however have intermediaries in most courts.
Mr Du Plessis said the conviction rate quoted referred to the conviction rate of those cases that actually got to the sexual offences courts and did not include all the cases reported that never reached court.
Regarding doctors and the crime kits, Mr Du Plessis said that in the last few weeks they had trained even more doctors than the 127 mentioned.
Ms Rajbally (Minority Front) asked if there was a contingency plan for dealing with the lack of uniformity in sentencing or if they had to wait for the new Sentencing Framework to finally be implemented.
Mr Hollamby said that the Law Commission had submitted a draft on sentencing to the Department. The purpose of the Bill was to create uniformity and to ensure that people served their full sentence.
Mr P du Rand said that they were aware of the disparities. He added that expanding their training of the judiciary and the prosecutors would hopefully help with this.
Mr Clelland-Stokes(DP) asked why training was not mandatory for the judiciary.
Mr P du Rand said that the independence of the judiciary was enshrined in the constitution and they therefore could not force the judiciary to undergo training, but with the help of some of the judges they could indicate the need for training.
Mr Masutha (ANC) said that one needed to get an overall impression of how the integrated justice system was succeeding in penalising offenders. He asked if the Department was going to confine itself to only monitoring the courts or if it was going to monitor problems at the lower level, where people could easily get disillusioned if there was no follow though from the time of laying a charge.
Mr P du Rand said that information on the entire integrated system was important and that they would like to see a fuller picture themselves.
Du Plessis said that a large part of the process was prosecution led and that hopefully via the training they would see an improvement. In respect of the commitment from the police, they would no longer be withdrawing rape cases (previously 50% of rape cases were being withdrawn). He hoped that this would also increase the conviction rate.
Ms Chalmers (ANC) said that all prosecutors should get training on how to deal with sexual offences cases, not just those prosecutors usually assigned to such cases. She said that in the smaller, rural areas, normal prosecutors would be dealing with sexual offences cases. In the Karoo area there was very little skill demonstrated in dealing with such sensitive cases.
Mr Da Camara (DP) said that the Children's Bill had been "in the works" for a long time. What objections did the Department have to the Children's Bill, which was receiving support, from civil society?
Mr Da Camara asked if there was an interim referral system in place so that those areas where there were no sexual offences courts, could refer the cases to the nearest sexual offences court instead of handling the case in the ordinary courts.
Ms Dlamini (ANC) asked how the National Oversight Committee's report had facilitated more attention to these areas. She then referred to the recommendation of the Task Group to remove the abuser from the home of the victim once a charge had been laid and asked how this was practically done.
Ms Mars (IFP) asked what difficulties they were having with the Films and Publications Board and whether negotiations were under way to deal with the problem child pornography.
Mr P du Rand said that they were trying to give all prosecutors basic training, not just those in the sexual offences courts and that one could not apply to be a prosecutor if one did not have such training.
Regarding the Children's' Bill, Mr P du Rand said that the Department had no objections at all to principles, but objected to the implementation in its recommendation that they institute a new court system. They could not afford to duplicate systems even though there were gaps in the existing one. Recent meetings between Justice and Social Development were aimed at compromising by looking at ways to increase the responsibility of existing officials.
Answering Mr Da Camara's second question, Mr P du Rand said that there was no referral system as courts operate on a jurisdiction basis, in other words a case must be heard in the area the crime was committed. Where possible they were trying to set up sexual offences courts in all areas, and one was planned for the Karoo area.
Mr Hollamby said that the new Draft Bill to replace the Films and Publications Act had been drafted three years ago and was sitting at the Department of Home Affairs.
Mr Salojee asked why it was not being acted on by the Department if Home Affairs.
Mr Hollamby suggested that they had been too busy with the Immigration legislation.
Mr P du Rand added that the JCSP cluster was also dealing with the matter of child pornography.
Mr Du Plessis said that they had met with the Films and Publications Board and the police regarding the matter. The Department was lagging behind the police in its knowledge about the production and distribution of child pornography. The police had a lot of information on the problem and had sought international advice.
Mr Du Plessis said the conference being planned should help address this gap.
Mr Du Plessis said that in May police and prosecutors would be attending training and education courses on the problem of child pornography. It would also involve an ideology change. Many people did not realise the extent of the problem until they were faced with the images.
Ms Pithey (Department of Justice and Constitutional Development) said that there was existing legislature regarding child pornography and that they were not sitting in a vacuum. There were a number of technical obstacles in the old legislation.
Mr Hollamby said that there were some Bail Houses but that it was the responsibility of the accused to find a place to stay such as in a hotel or with a neighbour.
Prof Mbadi (UDM) said that it was not always possible to isolate the perpetrator in rural areas. He had not seen victims/survivors of sexual offences being handled with dignity in the rural areas. He asked what was being done to change this?
A member of the House asked how long the "shortest period" that a child should be kept in prison referred to.
Mr P du Rand referred to Ms Dlamini's first question. A National Committee had been set up to look at the implementation of the Sexual Offences Bill and included the highest officials form the judiciary and the Department, in order to deal with the process in an holistic manner.
Referring to awaiting trial children, Mr P du Rand said that they preferred children not to be in jail at all, approximately 2300 were in prison at the moment and the figure was rising. Once the children were convicted they had further problems as there were too few places in reform schools. The Child Justice Bill provided for schools of industry.
They were very aware of the problem and are trying to deal with it. Conditions in jails were not good. Although the children were not held with adults, there was still severe overcrowding in some prisons.
Mr P du Rand said that it was encouraging to see that the Justice Committee and of Correctional Services Committee were planning a visit to the prisons and he suggested the Social development Committee might want to join them and if so should speak to Mr De Lange.
Mr Salojee (ANC) said that it was vital that they were involved. Some of them had already taken the initiative to visit the jails.
Mr Du Plessis said that the rural areas posed the biggest challenge for the Department. Victims often had no money to go to police stations to lay charges, and no money for follow up visits. Their care centre outside Umtata was being used as a model to try and address these problems. He could supply Prof Mbadi with further information if he wished.
Prof Mbadi said he would appreciate this.
Mr Du Plessis said that committees had been set up to look at ways of addressing the problems faced in the rural areas. A practical example to come of this was the purchase of a vehicle for the sole purpose of transporting the victims. They had received further funding and would be purchasing more vehicles.
Ms Masutha (ANC) said that the trafficking of children was addressed in the Child Care Bill. South Africa was a signatory to an international agreement on fighting child abductions. They had recently had public hearings on the issue and many NGO's had dramatised the situation for them. He asked if information from their central authority also indicated that this was becoming a serious problem.
Mr Masutha said that it would be unconstitutional for the law not to cater for the problem of child trafficking. Were there safeguards in place to prevent the perpetrators from using the old legislation for their own gain.
Mr P du Rand said that it was a serious problem, and that it was on the increase in South Africa as well as in its neighbouring counties. They had not yet ratified the agreement on prevention of child abductions.
Mr Hollamby said it was not sure why this was so.
Mr Salojee asked that they take not of this and follow it up.
Mr P du Rand said they would, but added that it also involved the Department of Foreign Affairs.
Mr Hollamby said they were trying their best to safeguard against the misuse if the legislation by perpetrators. The Committee should keep such issues in mind when the Bill comes before them.
Mr Salojee said that children's issues must be seen as mainstream. He asked if this was being budgeted for.
Mr P du Rand said that it was. There was a new Chief Directorate to deal specifically with child and youth affairs. National Treasury had acknowledged that the Department was doing well in this regard and had therefore granted an additional R40 million in funds.
The meeting was adjourned.
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