Public Protector Amendment Bill; Compulsory HIV Testing of Alleged Sexual Offenders Bill; Criminal Procedure Amendment Bill: discussion

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Justice and Correctional Services

26 March 2003
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Meeting Summary

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Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
27 March 2003
PUBLIC PROTECTOR AMENDMENT BILL, COMPULSORY HIV TESTING OF ALLEGED SEXUAL OFFENDERS BILL; CRIMINAL PROCEDURE AMENDMENT BILL: DISCUSSION


Chairperson: Adv J H de Lange (ANC)

Documents handed out:
Memorandum on the Appointment of the Public Protector (document will be available here shortly)
Compulsory HIV Testing of Alleged Sexual Offenders briefing by South African Police Services (Appendix 1)
Summary of Submissions on the Criminal Procedure Amendment Bill

SUMMARY
The Committee discussed three bills. The Public Protector Amendment Bill was discussed briefly with the Public Protector. The Committee decided that a Public Protector and Deputy Public Protector would be selected by a simple majority in Parliament and appointed by the President.

A representative from the South African Police Services addressed the Committee with regard to the Compulsory HIV Testing for Alleged Sexual Offenders Bill. The Committee decided to draft another part to the Bill that will provide mechanisms to allow police to properly test alleged rapists.

Finally, the Committee reviewed the Summary of Submissions on the Criminal Procedure Amendment Bill regarding the application for the leave to appeal. The Chairperson ordered several changes to the Bill as a result of the comments considered.

MINUTES
Public Protector Amendment Bill

Adv de Lange welcomed the Public Protector, Mr M L Mushwana, and stated that the Committee looked forward to working with the Public Protector in its oversight role. The Chairperson related the background to the Public Protector Act, noting that the Committee would support a change in the appointment process for the Public Protector if that change would help the public to perceive the independence of the office.

The Public Protector thanked the Chairperson for the opportunity to address the Committee and remarked that it was interesting to be sitting on the other side. He attempted to make clear that his position regarding the appointment process should in no way be construed as the casting of dispersions toward the Minister. Ministerial involvement in the process of appointment of the Deputy Public Protector or the Public Protector creates the perception that the executive branch holds influence over the office of the Public Protector. According to the Constitution, the office should be independent and thus the appointment process should cause it to remain independent.

Adv de Lange suggested that Parliament choose the Public Protector by a simple majority and then the President would appoint.

The Public Protector stated that he was pleased with this option.

Adv de Lange added that while anyone would be allowed to make a nomination, they could add a specific clause to allow the Public Protector to make a nomination.

Mr J H Jeffery (ANC) asked what happened if the Public Protector nominated a candidate that did not get appointed.

The Public Protector offered that he would be happy to be left out of the process. A specific clause was unnecessary.

The Committee seemed pleased with this procedure. Adv de Lange explained that the Public Protector Amendment Bill would be drafted to reflect the Committee's deliberations and would be brought back to the Committee the following day for further consideration. He thanked the Public Protector for coming and excused him from the meeting.

Compulsory HIV Testing of Alleged Sexual Offenders Bill
Adv de Lange expressed his concern and frustration with the National Prosecuting Authority for their inability to send a representative to make a submission to the Committee. They would have to return at a later date to give their input, but expressed dismay that one prosecutor was not available to make it to the Committee.

Adv de Lange commended Dr T Geldenhuys of the South African Police Services for his attendance and noted that the Committee values his input.

Dr Geldenhuys summarised Section 51 of the Criminal Law Amendment Act, 1997, which provided for minimum sentences for serious offences. Insofar as rape is concerned, the Act stipulated that an obligatory life sentence must be imposed for rape when it is committed by a person knowing that he has HIV/AIDS.

Dr Geldenhuys explained that it was hard for the State to prove both that the accused had HIV/AIDS at the time of the rape, and that he had knowledge of his condition. If the Police Service was granted the right to take a blood sample of the accused, it would make it easier to prove that the accused had HIV/AIDS and the only burden remaining for the state would be to prove that the accused was aware of his condition.

Dr Geldenhuys stated that Section 37 of the Criminal Procedure Act does provide for the police to take a blood sample. The section, however, was not written with HIV/AIDS testing in mind. Serious difficulties would arise in utilising Section 37 to draw blood from a man accused of rape.

Adv de Lange asked Dr Geldenhuys if he knew of a case where the police used Section 37 to draw blood?

Dr Geldenhuys responded that he was not aware of a case in which the police were able to use Section 37 to draw blood from an alleged perpetrator. Even though Section 37(3) gives a magistrate the right to issue a court order for a blood sample, most magistrates have refused to give such a court order. Furthermore, medical practitioners are hard pressed to say that the accused had HIV/AIDS at the time of the rape. This is a medical problem that is hard to rectify.

He explained that the entire process of blood samples and testing is very emotional because the victim also should be tested. Further complications arise because the HIV/AIDS virus is not detected within an initial three month window period.

Dr Geldenhuys explained that specific legislation to provide for compulsory HIV/AIDS testing of alleged sexual offenders would allow the police to get samples. Section 37, he reiterated, was not drafted with the intention of HIV/AIDS testing.

Adv de Lange asserted that a second part of the bill must be drafted to create a list of crimes for HIV/AIDS, such as murder, attempted murder, and rape. That part of the Bill will create mechanisms for testing. Perhaps a court order will be the necessary mechanism for testing, but that can be debated later.

Mr S N Swart (ACDP) asked about the issue of admissibility.

Adv de Lange suggested that the Bill provide for two tests to counter problems posed by the three month window period. He also noted that the alleged offender must be caught and tested within three months to prove if he had HIV/AIDS at the time of the crime.

With regard to the definition of rape, consensual sex with a person who is HIV positive, knows about the disease, and does not reveal that knowledge can be convicted of rape. The deceit removes the consensuality of the sex, according to the Sexual Offences Act.

Dr Geldenhuys described the medical profession's general antipathy with regards to ascertaining whether an alleged sexual offender had HIV/AIDS at the time of the offence. Most medical professionals were apprehensive about making such a claim with medical certainty.

Adv de Lange suggested that the testing would be admissible in court if it had been drawn within 60 days of the date of the alleged incident.

He noted that the police should check with the Health Department. He summarised the discussion so far. A second part to the Bill will be drafted. The Bill will include mechanisms to allow the police to test alleged rapists for HIV/AIDS. Victims would also be ensured of the right to find out their own health status.

Dr Geldenhuys raised a scenario involving a man arrested of rape who is found with HIV and informed of his health status. If he is acquitted for another reason, but then is arrested for rape after his release, would his knowledge of the illness be admissible to court?

Adv de Lange seemed to think his knowledge based on the first testing would be admissible.

He stated that they would draft a new alternative to Section 37 and that it would appear in this act, or possibly the Criminal Procedure Act.

Adv de Lange then addressed members of the Health Department who entered the meeting briefly. He summarised the decisions the Committee has made with regards to the Compulsory Testing Bill and the need for a second part to the Bill.

One member of the Health Department stated that the Department was supporting this Bill but noted that the Department had been working towards anonymous testing. The Health Department had been working toward anonymity and privacy, which is contradictory to this Bill.

Adv de Lange suggested that the member of the Health Department speak with Mr Basset from the Department of Justice about building in checks and balances for confidentiality.

Adv de Lange made it clear that the Committee had no sympathy for people who had knowledge of their own HIV/AIDS status and yet were sexually active.

The Health Department asked about the victim's three-month window.

Adv de Lange stated that there will have to be two testing times, 90 days apart to be safe. He reiterated that the Committee would do everything necessary to make the tests fair and medically feasible. If two tests are necessary, the Bill will stipulate two tests.

He thanked everyone for attending and noted that once the Bill has been redrafted, all of the Committees interested in the Bill would have a chance to give further input.

Criminal Procedure Amendment Bill
Adv de Lange turned to the Summary of Submissions on the Criminal Procedure Amendment Bill and engaged Mr Johan de Lange and Mr du Preez in discussions regarding that Bill. He stated that the Summary of Comments included news and views from magistrates and judges throughout the country concerning the appeals process. He noted that, of course, the Constitutional Court embraces the procedure of no automatic appeal.

As an aside, Adv de Lange addressed Mr du Preez, informing him that he wanted him to talk to the Human Rights Commission in order to give them a chance to willingly participate. He should supply a memorandum of problems and solutions, including the possibility of sanctions.

Adv de Lange returned the Committee's attention to the Criminal Procedure Amendment Bill. He reviewed the recent history of the Bill, concluding that the Committee must fix the Bill now because the court would not read into the legislation. He asked Mr du Preez to review the clauses that have been added.

Mr du Preez began with Section 309B(2)(a), which detailed which judicial officer would hear the application for leave to appeal.

Adv de Lange read the section and asked what happened if the application was denied.

Mr du Preez stated that if the appeal is granted, documents must go to the registrar of the Court of Appeals. The Clerk must submit a copy of the documents as provided for in 309B(3)(b). That was all that had been added to the Bill.

Adv de Lange asked if the Committee could assume that other parts of the Bill have been found constitutional.

Johan de Lange stated that they could not be assured, but that the input from the Bench would assist the Committee in gauging the constitutionality of the Bill.

Adv de Lange noted that the Committee still had to debate the limiting of the right to appeal. He wondered if the evidence shows that the legislature should limit the right to appeal. If the bench has doubts that it is necessary, he made it clear that the Committee does not want to add to those doubts.

The Committee then went through the summary of comments including those from the Law Society, National Prosecuting Authority, and Legal Aid Board.

The Judge President of the High Court in Grahamstown requested the wording should be changed from "the application" at the end of Section 309B(2)(a)(ii) with "an application heard by such other magistrate". This would make it clear that the subparagraph applies to an application heard by another magistrate as the one whose order or decision is the subject of the proposed appeal. Adv de Lange and the Committee agreed with the change.

The Chief Magistrate: Durbanm, argued that the second proviso in subparagraph (ii) and 309C(6)(b) are not supported since the Constitutional Court has remarked that the risk of an error leading to an injustice is substantially greater in the magistrates' court than in the High Court.

Adv de Lange agreed that the chances of anyone challenging such a case are slim but it could happen in the petition stage. He asked Mr du Preez to draft both options.

With regard to the National Director of Public Prosecutions Comment, Adv de Lange disagreed, stating that there is a difference between discriminating and differentiating. There was a greater risk of something going wrong in the district court and it was proper for the Committee to differentiate the courts for the purposes of this legislation. He agreed with their suggestion for 309B(2)(b) and asked Mr du Preez to note that change.

The Committee agreed to change the word "verbally" in 309B(3) to "orally" as suggested by the Judge President, High Court: Durban.

Judge President, High Court: Grahamstown recommended that Section 309B(5) should be amended to provide for the views of the presiding officer, who hears further evidence, regarding the acceptability of the evidence or credibility of witnesses. Adv de Lange agreed with the proposal.

Mr du Preez stated that it was touchy because Section 4 may include such a provision, but he agreed with the application to hear further evidence.

Adv de Lange asked whether the Committee should specify if the person bringing the appeal can comment or not. Mr du Preez appeared uncertain as to the answer.

Adv de Lange stated with clarity that a court's comments must go on record when the court decides on the application for leave to appeal.

Judge President, High Court: Pretoria, noted that, with regard to the requirement contained in Section 309C(3)(b), where a petition is directed only against the sentence, the complete case record may become less necessary in order to consider the relevant petition. The Judge President recommended that such distinction should be provided for. The Committee agreed.

Mr du Preez stated that the Natal bench may contradict this.

Adv de Lange informed him to add another proviso that in the case of a sentence issue, a magistrate may ask for the complete record if he finds it necessary for the decision.

The Committee discussed the suggestion of the Regional Court President: Pretoria, who pointed out that most applications for leave to appeal for sentences are made by convicted persons who have served one or two years of the sentence and were told to appeal. He suggested that paragraph (b) should be amended so that in those cases where accused persons are out of time in bringing their applications the submission of copies of the judgements and reasons for sentence only will be sufficient.

Adv de Lange agreed that a proviso can be drafted to affect those cases where the time limit is up.

The Regional Court President: Pretoria also asked that (3)(b) be clarified so that clerks do not read it wrongly. Adv de Lange instructed Mr du Preez to do so.

The Committee examined the comment by the National Director for Public Prosecutions who asserted that the High Courts will be flooded with "spurious" petitions because the state will pay for it.

Adv de Lange admitted that this may be true, but that there was no other viable option. He considered momentarily making the accused pay for the preparation of the case record with the stipulation that he will be reimbursed by the state if he wins. But that option would prevent the poor from bringing appeals even if the appeals are good.

Magistrates may have more reading as a result of this process, but the number of trials will be reduced. The court will save time with this procedure.

He stated that the other option would be for any petition, to simply attach the judgement, and then the judge could ask for the record if he wanted to.

Adv de Lange instructed Mr du Preez to flag this section and draft two options for the Committee to return to and decide later.

The Committee considered the submission of the Judge President, High Court: Durban, who argued that case records are often faulty, include inadmissible evidence, and wrongly-emphasise the evidence. Adv de Lange noted that they could draft a third option to give judges access to the entire record, if desirable.

The Judge Presidents in both the Pretoria and Durban High Courts argued that the provisions in 309C(4) that stipulate that two judges must review the petition and, if disagreement exists, the Judge President must decide were unnecessary. They both argued that only one judge should be required to decide the petition.

Adv de Lange agreed, arguing that only one judge would read it anyway and the other one would simply agree. He asked Mr du Preez to change the section so that only one judge has to deliberate on the petition.

Adv de Lange agreed with the Judge President, High Court: Grahamstown, who advocated replacing the word "and at the end of paragraph (c) with "or" so that subsection (5)(a) to (d) will be read disjunctively.

Adv de Lange disagreed with the Regional Court President in Johannesburg who argued that oral arguments should be an absolute right for every appeal.

The Committee moved on to the "General Comments" section of the Summary of Submissions and noted that the majority of commentators supported the Bill.

Adv de Lange noted that of course the Law Society and other legal practitioners do not support the Bill because it will potentially reduce their workload.

An alternative proposal was reviewed, but Adv de Lange did not think it feasible because the appeal to the High Court would not be swift.

Adv de Lange informed the Committee that they were done reviewing the submissions and that he was pleasantly surprised with the quality of the comments. The comments have improved the quality of the Bill and he voiced his confidence in the Bill's ability to pass tests of constitutionality.

The meeting was adjourned.

Appendix 1:
COMPULSORY HIV TESTING OF ALLEGED SEXUAL OFFENDERS BILL

Clause 7 of the Bill reads as follows:

"The result of an HIV test performed on the body specimens of an alleged offender in terms of this Act is not admissible as evidence in criminal or civil proceedings"

Section 51 of the Criminal Law Amendment Act, 1997 (Act No.105 of 1997) which came into operation on 1 May 1998, provides for certain minimum sentences for serious offences. Insofar as rape is concerned, the Act provides that an obligatory life sentence must be imposed for rape when it is committed by a person knowing that he has the acquired immune deficiency syndrome or the human immuno deficiency virus.

In order for the State to prove that an accused knew that he or she had the acquired immune deficiency syndrome or the human immuno deficiency virus, the state need to prove that the accused, at the time of the commission of the offence, -

(1) had the acquired immune deficiency syndrome or the human immuno deficiency virus; and
(2) was aware thereof.

This is extremely difficult to prove. If the Police Service is empowered to obtain a blood sample of the accused in order to determine his or her HIV status, a result that proves that, at the time the sample was taken, the accused had the acquired immune deficiency syndrome or the human immuno deficiency virus, this may be indicative (albeit circumstantial evidence) that the accused had the syndrome or virus at the time of the commission of the offence. Medical expect evidence concerning the development of the syndrome or virus may assist in this regard. The only aspect that then remains, is for the state to prove that the accused was aware of this at the time of the commission of the offence.

It Is arguable that section 37 of the Criminal Procedure Act, 1977 (Act No.51 of 1977) may be utilized to have a blood sample taken and the test conducted.

The relevant portions of section 37 of the Criminal Procedure Act provide as follows:
"(1) Any police official may -
(c) take such steps as he may deem necessary in order to ascertain whether the
body of any person referred to in paragraph (a) (I) or (ii) has any mark,
characteristic or distinguishing feature or shows any condition or appearance:

provided that no police official shall take any blood sample of the person
concerned nor shall a police official make any examination of the body of the
person concerned where that person is a female and the police official
concerned is not a female;
(2) (a) Any medical officer of any prison or any district surgeon or if re quested

hereto
by any police official any registered medical practitioner or registered nurse
may take such steps, including the taking of a blood sample, as may be
deemed necessary in order to ascertain whether the body of any person
referred to in paragraph (a) (i) or (ii) of subsection (1) has any mark,
characteristic or distinguishing feature or shows any condition or appearance.
(b) If any registered medical practitioner attached to any hospital is on

reasonable
grounds of the opinion that the contents of the blood of any person admitted

to
such hospital for medical attention or treatment may be relevant at any later
criminal proceedings, such medical practitioner may take a blood sample of
such person or cause such sample to be taken.
(3) Any court before which criminal proceedings are pending may -
(a) in any case in which a police official is not empowered under subsection (1) to
take finger-prints, palm-prints or foot-prints or to take steps in order to ascertain
whether the body of any person has any mark, characteristic or distinguishing
feature or shows any condition or appearance, order that such prints be taken
of any accused at such proceedings or that the steps, including the taking of a
blood sample, be taken which such court may deem necessary in order to
ascertain whether the body of any accused at such proceedings has any mark,
characteristic or distinguishing feature or shows any condition or appearance;
(b) order that the steps, including the taking of a blood sample, be taken which
such court may deem necessary in order to ascertain the state of health of any
accused at such proceedings.
(5) Finger-prints, palm-prints or foot-prints, photographs and the record of steps taken under this section shall be destroyed if the person concerned is found not guilty at his trial or if his conviction is set aside by a superior court or if he is discharged at a preparatory examination or if no criminal proceedings with reference to which such prints or photographs were taken or such record was made are instituted against the person concerned in any court or if the prosecution declines to prosecute such person."


In addition to section 37, section 225 of the Criminal Procedure Act expressly provides that results of blood test will be admissible during criminal proceedings. Section 225 reads as follows -'~(1) Whenever it is relevant at criminal proceedings to ascertain whether any finger-print,
palm-print or footprint of an accused at such proceedings corresponds to any other finger-print, palm-print or foot-print, or whether the body of such an accused has or had any mark, characteristic or distinguishing feature or shows or showed any condition or appearance, evidence of the finger-prints, palm-prints or foot-prints of the accused or


that the body of the accused has or had any mark, characteristic or distinguishing feature or shows or showed any condition or appearance, including evidence of the result of any blood test of the accused, shall be admissible at such proceedings.
(2) Such evidence shall not be inadmissible by reason only thereof that the fingerprint, palm-print or foot-print in question was not taken or that the mark, characteristic, feature, condition or appearance in question was not ascertained in accordance with the provisions of section 37, or that it was taken or ascertained against the wish or the will of the accused concerned."


Although the wording of section 37, as quoted above, is seemingly susceptible to an interpretation that the section may be utilized to have a blood sample taken from a sexual offender in order to test his or her HIV status, there are several arguments to be advanced that the section may not be utilized for this purpose. Until a court of law has authoritatively expressed itself on this issue, uncertainty will continue to surround this issue.

The utilization of section 37 for this purpose present many difficulties in practice. Firstly, health practitioners generally refuse to take the necessary blood sample against the will of the offender for this purpose and raise the argument that the results of the test, even if positive, can never prove that the accused had the syndrome or virus at the time of the commission of the offence. Likewise, if the results are negative, they argue that the suspect may be Ir a window period which means that the suspect may in any event be infected.

Secondly, several judicial officers, approached to issue a court order in terms of section 37(3) to have blood samples taken, refuse to do so on the basis that the persuasive value of the evidence obtained in this manner, Is so small that it does not justify the serious infringement of the constitutional right of the accused to freedom and security of the person. This argument is also based on the argument raised by health practitioners as alluded to above.

Given the aforementioned arguments, one can now evaluate the impact that clause 7 of the Bill will have if it becomes part of the law. In this regard mention needs to be made that section 37 is a general provision that does not specifically mention the syndrome or virus. Furthermore, account has to be taken of the fact that, if read in context, section 37 is obviously intended to gather evidence for the purpose of a criminal prosecution and not in general, to determine whether a person suffers from a particular sickness.

Viewed against this background, it is possible to argue that the Bill, if it comes into operation, will be regarded as a special Act dealing specifically with HIV testing of a sexual offender. One would therefore expect the legislature to comprehensively deal with the Issue of gathering evidence regarding the H IV status of the offender However, in its present form, the Bill expressly declares such evidence to be inadmissible during criminal and civil proceedings.

It is accordingly arguable that the nett effect of the Bill in its present form, coming into operation will be that section 37 may also not be utilized for the purpose of obtaining evidence concerning the HIV status of the offender. Any other interpretation would in any event neutralise clause 7 in that it will result in the evidence in any event becoming admissible.

In view of the above, the South African Police Service does not support the adoption of clause 7, in its present form, as part of the Bill.

It is realised that if this clause is scrapped in toto, there will still be uncertainty with regard to the effect of the coming into operation of the rest of the Bill on section 37. The South African Police Service therefore recommends that the clause rather be amended to allow for the admission of evidence concerning the result of the test in court, during criminal proceedings.

The South African Police Service does not wish to express itself on the desirability or otherwise of having such evidence admitted during civil proceedings, but recognises that there may be instances in 'which it will be difficult for ordinary members of the public to understand why such evidence is admissible during criminal proceedings but not during civil proceedings.

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