Criminal Procedure Amendment Bill (Steyn): deliberations; Criminal Law (Sexual Offences) A/Bill: briefing

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Justice and Correctional Services

04 August 2003
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Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
5 August 2003
CRIMINAL PROCEDURE AMENDMENT BILL (STEYN): DELIBERATIONS; CRIMINAL LAW (SEXUAL OFFENCES) AMENDMENT BILL: BRIEFING

Chairperson:
Adv J H de Lange (ANC)

Relevant documents:
Criminal Procedure Amendment Bill [B57-2002]
Amendments to Criminal Procedure Amendment Bill, 5 August 2003
Criminal Law (Sexual Offences) Amendment Bill

SUMMARY
Criminal Procedure Amendment Bill
The Committee considered the proposed amendments to the Criminal Procedure Amendment Bill. These were accepted. Further proposed amendments raised in this meeting will be effected. The Committee intends that this Bill be passed by Parliament by September.

Criminal Law (Sexual Offences) Amendment Bill
Attention was drawn to the definitions of "an act causing penetration", "sexual offence" which now include common law crimes, and an "indecent act". There were concerns by some members about the wide scope of some of the definitions contained in the Bill. The first nine clauses were looked at.

MINUTES

The Chairperson open the meeting by welcoming a new member of the Committee, Ms C Johnson (NNP).

Criminal Procedure Amendment Bill
Clause 1 Amendment of Section 309 of Act 51 of 1977
The Committee accepted the proposed amendment to Section 309(1)(a).

The Chair said that the Committee would have to decide whether this proposed amendment should remain with the CPA or be moved to the Child Justice Bill, since it deals with child offenders. The Committee also has to decide about the words in the square bracket: [and, at the time of conviction for the offence, below the age of 21 years]. He said that since the old subsection (3A) is not in contradiction with the proposed amendment then its should remain while the new proposal should be made subsection (3B). Further proposed was that "or their legal representatives" should be inserted after "the interests of justice require that the parties" and that a similar provision be formulated for the Supreme Court of Appeal.

Clause 2 Substitution of Sections 309B and 309C of Act 51 of 1977
Application for leave to appeal
The Chair said that the proposed amendment in Section 309B(2)(b) is too long. He requested the department to refine it and possibly break it into two paragraphs. He noted that the exclusion of the National Director of Public Prosecutions in 309B(2)(c) would have the legal implication of curtailing his powers even in cases where he wants to prosecute a case, himself, on a national level.

Mr J De Lange (Departmental drafter) said that in practice the National Director of Public Prosecutions usually delegates his powers to the Directors of Public Prosecutions. Based on this, the Department had felt that it is unnecessary to give these powers to him since he would often delegate them to his Directors who would also delegate them to their juniors. They will refine this clause to include the National Director of Public Prosecutions but limit the number of further delegations that could be done.

Petition procedure
In S309C(2)(a) the Chair requested that the paragraphs (i) to (iii) that were deleted - be reinstated as they simplify this section thus making it clear for practitioners.

In S309C(4)(c), he proposed that "if the parties agree thereto and the Judge President so directs in an appropriate case" be inserted as paragraph (iv).

He asked the department for the reason they had opted for a plural formulation of 'judge' in S309C(6) instead of a singular formulation.

Mr De Lange said that the plural formulation make it to easy for someone to read and understand the subsection, while its singular formulation was too long and caused some difficulty in understanding it.

The Chair disagreed with the reasoning and requested the whole subsection to be put inside square brackets, so that the Committee could consider this at its next meeting. He said in the meantime the Department should try to refine it and the provisions of subsection (7) and in so doing they should seek some technical advice from the experts. He further proposed that subsection (8) should be made subsection (3).

Mr De Lange said that the Department would also try to determine whether to use "and " or "or" in joining the provisions of paragraphs (a) to (d) in S309C(7).

Ms S Camerer (DA) noted that the words "are related" in S309C(8) should be replaced by "relate".

Clause 3 Amendment of Section 315 of Act 1977
In S315(1) the Chair proposed that, in addition to subsection (3), the provisions of subsection (3A) also be included as an exception.

Ms Camerer proposed that the word "shown' be inserted after the words "good cause" in S315(2)(b).

Clause 4 Substitution of Section 316 of Act 51 of 1977
The Chair noted that there should be consistency and thus the words "judgement or order" in S316(3)(a) should be replaced by the words "decision or order" as this phrase appeared throughout the Bill.

He proposed that
- the phrase "the record of the proceedings in the trial court in respect of which the application was refused" be inserted in 316(10) as paragraph (c),
- and 314(14) appear as an earlier provision in this section.

He questioned the constitutionality of 316(16) that gives the Supreme Court of Appeal a right to be unchallenged for its decisions.

Mr De Lange said that this provision is in line with the constitutional provisions, which state that the Supreme Court of Appeal is the highest court on all non-constitutional matters.

The Chair expressed his disapproval of such a constitutional provision since it has the effect of violating a human right to a fair trial. He said that until such time that this constitutional provision comes before the Committee for consideration, there is no need to include this provision in the Bill

There was concurrence in this matter.

Clause 6 Transitional Arrangements
The Chair noted that a similar provision to that of paragraph (a) should also be created for the High Court, in those cases where it is the court of first instance.

Mr De Lange saw no need for such a provision since he felt that the High Court would mostly deal with appeals from lower courts, for which the provisions of paragraph (b) cater. However he noted that the Department would see how it refines paragraph (a) so as to cater for the concerns raised by the Chair.

The Chair said that since they have now dealt with the Bill, members should go to their respective parties to get a mandate to decide on the principles embodied in it so that it can be passed by Parliament in September.

Afternoon session
Criminal Law (Sexual Offences) Amendment Bill
Ms Dellene Clark (SA Law Commission) and Mr Johan de Lange (Department drafter) took the Committee through the first third of this Bill which is shortly to be tabled.

Clause 1 Definitions and Interpretation of Act
Mr J de Lange advised members to pay special attention to some of the definitions contained in the clause. He made special reference to:
- "an act causing penetration"
- "sexual offence" which now include common law crimes
- an "indecent act".

The Chair asked the drafters to explain what they are trying to achieve by defining sexual offences in a way that they include established common law offences.

Ms Dellene Clark responded that the intention is to make the Act applicable not only to statutory offences but to common law offences as well.

With regard to an indecent act, Mr de Lange said it was necessary to make proper distinction between indecent assault and rape.

The Chair felt that the definitions proposed would create problems with regard to the sentencing of offenders given the wide scope of an indecent assault. He felt that the definition has the potential of undermining what the drafters sought to achieve.

Clause 2 Rape
Mr J de Lange outlined the definition of rape.

The Chair opined that the abuse of power or authority in order to get sexual favours should be an offence. However, he asked if that offence should be rape. He also asked if modern jurisdiction addressed the question the way South Africa wants to address it.

Together with Ms S Camerer (DA), the drafters agreed that, provided that the elements of rape are present, such an offence should be classified as a rape. Ms Clark also said that there are some modern jurisdictions that have addressed the issue in this manner.

The Chair asked why Clause 2(7) repeals the common law relating to "the irrebuttable presumption that a female under 12 years is incapable of consenting to sexual intercourse" and the common law offence of rape unless the offence was committed prior to the commencement of this Act.

Ms Clark said that the repeal of the presumption was necessary because it applied to girls only and not to boys as well. As to the repeal of the common law offence of rape she said that the intention was to have only this Act applicable to all offences committed after its commencement date.

Adv M Masutha (ANC) asked what exactly differentiates sexual violation from rape.

The Chair replied that the object used to penetrate the sexual organs of another person determines the nature of the offence.

Clause 3 Sexual violation
After Mr de Lange had read the definition of sexual violation, Ms Camerer asked for the status of sexual violation as an offence.

The Chair said that the definition clarifies the nature of the offence when objects other than genitals have been used. He went on to say that the definition is likely to undermine what the legislature did by passing the Minimum Sentences Act.

Adv M Masutha (ANC) asked the drafters to specify what exactly delineates sexual violation from rape especially where violence has also been used.

The Chair said that the object used to penetrate the sexual organs of another person determines the nature of the offence.

Clause 4 Oral Genital Sexual Violation
There were no comments on this clause.

Clause 5 Applicability of Provisions on Rape to Sexual and Oral Genital Sexual Violation
There were no comments on this clause.

Clause 6 Compelled or Induced Indecent Acts
The Chair and Ms Camerer asked why the drafters have included indecent acts whilst retaining the common law offence of indecent assault. This question was necessitated by the fact that in some instances some common law crimes were transformed into statutory offences without retaining the original offences. The Chair asked if it would be possible to charge a person with the common law offence of indecent assault and the statutory offence.

The drafters promised to look into the clause and would give answers at a later stage. Mr de Lange said that the Criminal Procedures Act does not allow for one to be charged with both the statutory and the common law offence since the very same elements have to be proved in respect of both.

Clause 7 Defences to Indecent acts or act which cause penetration with certain mentally impaired persons
The Chair asked why this defence has been provided. He also asked the drafters to look into redrafting the clause and specify acts of penetration with which the clause is concerned.

Ms Clark said that it was realised that mentally impaired persons also have sexual needs and may therefore engage in sexual activities and that this clause was intended to protect them.

The Chair replied that the defence is available to the person who engages in sexual activities with a mentally impaired person and therefore does not protect the mentally impaired person.

Ms Camerer had a problem with the use of the word 'induce' as used in the clause. She asked the drafters to clarify the issue of mentally impaired persons inducing sexually intercourse.

Clause 8 Acts which cause penetration or indecent acts committed within the view of certain children or certain mentally impaired persons
Members agreed that the clause should be constructed to make it clear that penetration should have been intended to be within the view of a child.

Clause 9 Acts which cause penetration or indecent acts with certain children with their consent
Ms Clark said that non-penetrative acts involving children who are between 12 and 16 years have not been criminalized. She said that with regard to penetrative acts the old statutory sexual offence has been retained.

Ms Camerer (DA) felt that Clause 9(1) was badly drafted and gives the impression that if an older person engages in non-penetrative sexual activities with a child, such a person would get off lightly.

Clause 9(7) states that it is a defence if the person who engaged in sexual intercourse with the child is married to that child unless the child is under 12 years. The Committee agreed that the clause should omit reference to children less than 12 years since those are not legally allowed to marry.

The meeting was adjourned.

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