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JUSTICE AND CONSTITUTIONAL DEVELOPMENT COMMITTEE
6 August 2003
CRIMINAL LAW (SEXUAL OFFENCES) AMENDMENT BILL, JUDICIAL MATTERS SECOND AMENDMENT BILL, PROMOTION OF NATIONAL UNITY AND RECONCILIATION AMENDMENT BILL: BRIEFING
Chairperson: Adv. J H de Lange
Documents handed out:
Criminal Law (Sexual Offences) Amendment Bill as certified by state law advisors
Explanatory Memorandum on the Bill
Judicial Matters Second Amendment Bill as certified by state law advisors
Explanatory Memorandum on the Bill
Promotion of National Unity and Reconciliation Amendment Bill [B34-2003]
The Committee were briefed on Clauses 10 to 23 of the Criminal Law (Sexual Offences) Amendment Bill.
The proposed amendments to the Promotion of National Unity and Reconciliation Act, 1995 allow payments from the President's Fund towards the rehabilitation of communities and not only to victims alone.
The Committee were briefed on the Judicial Matters Second Amendment Bill which proposes amendments to various laws administered by the Department for Justice and Constitutional Development and which amendments do not require individual amendment Acts.
Clause 10 - Promotion of sexual offence with child
The Chairperson started the meeting by noting that they had got up to Clause 9 at the previous meeting on 4 August. The Chairperson asked the drafters, Ms D Clark (SA Law Reform Commission) or Mr J De Lange (Department drafter) to continue their briefing.
Mr J De Lange stated that Clause ten created a new offence being that of the promotion of a sexual offence with a child and read out the clause in full.
The Chairperson commented that all the sentences were too low but said that they would get back to that a later. He then asked for if there was a definition for a child.
Ms Clark (SA Law Reform Commission) replied by referring to Clause 18.
Mr de Lange pointed out that the clause had been considerably redrafted since the Law Commission's report and that there were bound to be further comments by the public upon being invited to do so.
Ms S Camerer (DA) questioned why there had been such substantial changes.
Mr De Lange replied that the original wording was problematic insofar as it would prima facie cause people like Pieter Dirk Uys to be guilty of an offence when he went to schools and displayed a condom The wording was therefore changed to put all the emphasis on the intention.
The Chairperson also questioned the change.
Mr de Lange replied that they had agreed with the Law Commission and that the end result was exactly the same.
Ms Camerer replied that the reason she had asked was because there had been so much criticism in this regard with the Anti-Terrorism Bill which deviated a lot from the Law Commission proposals.
The Chairperson noted that he wanted to make it very clear that the Law Commission was an advisory body and that no one was bound by what they said. The issue was not whether one deviated from the Law Commission, the problem with the Anti-Terrorism Bill was that the Bill the Cabinet had approved was amended. The Law Commission did the research which was very useful as one had problems with a Bill when no research had been done on it. The problem with the Terrorism Bill was that a definition that had been approved by Cabinet was missing when it was tabled before Parliament. If one felt that another definition was better than that of Cabinet's, then one was entitled to argue the same. He made it clear that the issue was that the Law Commission was an advisory body and that the Committee was entitled to deviate from it.
The Chairperson addressed Mr de Lange by asking what the difference was between part "c" of the definition of an indecent act and parts of that offence. He asked whether there was not a part repetition or overlap on the "display" part of the clause or whether the intention was different.
Ms Clark agreed with the Chairperson and that it would be looked at if necessary.
Mr J Jeffery (ANC) asked whether the redrafted sections did in fact protect people who distributed condoms in schools. He said the section was still grey and there may be need for a proviso that it was not meant to curtail bona fide sex education. He continued that the statutory rape age was 16 years for girls and as per definition a child had been defined as under the age of 18. He asked if that meant that the Bill proposed to criminalise the sexual activity of two 17 year olds or was 10 (b) going to cover that.
The Chairperson responded that Clause 9 dealt with it. However the point raised by Mr Jeffery was very valid and that the difference between 10(a) and 10(b) and then the conclusion was the promotion of a sexual offence. One was going to have to make it a lot clearer that what one was avoiding were sexual offences - and not sexual acts.
Ms Clark replied that the wording was wrong and was going to be amended.
The Chairperson noted that there was a problem with the section as supplying or displaying anything used in the performance of a sexual act, including condoms, would be a crime and that could clearly not be the case. They would return to this later.
Clause 11 - Child prostitution
Mr de Lange summarised the clause as dealing with a complete ban placed on child prostitution and anyone involved in the sexual exploitation of a child will face criminal sanction. The child prostitute is considered a victim in the need of care and protection and cannot be prosecuted while living off or benefiting from child prostitution.
The Chairperson commented that the Bill was not correct because child prostitution and promotion of sexual offences with a child are other acts that are not necessarily sexual offences. One is not just dealing with the invasion of a woman or man's sexuality but dealing with child prostitution, pornography - so the name of the Act needed to be much wider than only sexual offences and one would have to look at that.
Mr de Lange responded by stating that he had compared the two versions and had not been able to see a difference between the two. It criminalised any person who commits an indecent act which caused penetration with a child for financial or other reward payable as compensation to the child or any other person. He then continued to read out the balance of the clause.
The Chairperson asked what the meaning of subsection 5 (b) was.
Ms Clark replied that it intended to cover households where one child prostituted herself and her brothers and sisters were living off her earnings. The idea was to protect the children where they were not one of the role players.
The Chairperson commented that it could be worded differently as it was far too technical. There seemed to be a lot of overlap of offences, for example 4(b) had now been mentioned in three different places only worded differently.
Mr Jeffery (ANC) referred to 11(f) on intentionally owning property. He said that he could recognize the intention but that one could intentionally own property without knowing that it was being used for those purposes. That needed to be worded in such a way as not to allow the owners to avoid prosecution by stating that they had not known what it was being used for. A property was always intentionally owned, however the intention as a purpose needed to be linked more closely to knowledge of use of the property.
Adv. M T Masutha commented that the clause will be substituting an amendment introduced in the Child Care Act specifically to introduce that particular offence. The approach that had been adopted at the time was to create a duty on the owner to report any incident or having knowledge of an incident occurring on his property. The approach in the given section seemed to indicate that ownership of the property constitutes an offence. It needed to be reconsidered what conduct should be criminaised or what legal duties one intended to create.
Ms Camerer had earlier wanted to know why the original proposal by the Law Commission to include child trafficking for sexual purposes had not been taken up as it was closely related to prostitution. At this point she acknowledged that there was a reference to what could be regarded to trafficking under 11(d) for sexual exploitation. But if one compared 11(1)(d) with 11(4)(a), 11(4)(a) almost took it further because if one booked their ticket whether or not a sexual offence occurs, there was still an offence, this being more like trafficking. Under 11(d) it was not certain when one became liable; one would have to prove that there was sexual purpose, whether or not it was committed seems to have been left out there, this being an inconsistency.
She continued that from experience, unless one had a specific offence of trafficking itself, it was very difficult to catch those people. Trafficking was usually for sex slaves or prostitution of some kind but if they could only be prosecuted under prostitution, it allowed a lot of people to escape. She suggested if one had the opportunity, one should look at examples from elsewhere and draft a clause specifically on trafficking, which was the originally suggestion by the Law Commission but was rejected by the time they got to drafting. Prosecution on mere travel arrangements seemed inconsistent and she would like to see specific clauses around trafficking itself.
The Chairperson replied that he thought everything she had said was covered but should they get to the discussion stage in a few months time and there were better ways of doing that, then they would consider it.
Ms Camerer remarked that the police had said many times that they required an offence in that regard.
The Chairperson replied that it did not matter how it was done. It was clear in that if one made travel arrangements to facilitate any sexual offence against a child - that was very clear to him. The point was that it was elaborating on one aspect of "d", whereas "d" dealt with the whole area of supplier, recruitment etc for the purposes of the commission of an indecent act. He did not have a problem looking at it and if there were better ways of drafting it, then that would be looked at. He would have imagined the more important thing was, not only for the purposes of the commission of an indecent assault or penetration, but also for facilitation - which was not currently present.
Ms Camerer agreed with the Chair at this point. She repeated that if trafficking was made a specific offence that would make it easier for the police.
The Chairperson said that if it could be done better, they would do so once they have had the public hearings. He noted at that stage that there were better ways and if there was further information in this regard it should be given to the committee and they would circulate it in order for everyone to become acquainted with the issues. He continued that he was aware of Ms Camerer's Bill and this should be circulated within the Committee.
Ms Camerer responded that it had gone to the Private Members Legislative Proposals Committee where it was agreed that it was desirable to include a provision outlawing trafficking and sent to the Social Development Committee dealing with the Children's Bill, which seemed quite a long way from completion. Parliament thought the legislative proposal was desirable, for that reason she thought they needed to take it seriously.
The Chairperson again asked that her Bill be circulated as it might become part of this Bill.
Ms Clark suggested looking at the Children's Bill at the same time because what they were trying to do in terms of child prostitution was to declare the child a vulnerable person and the safety and security aspects have been dealt with in the Children's Bill. Unfortunately the trafficking investigation of the Law Commission was at a very premature stage.
The Chairperson replied that it was not his preserve to get involved in the line functions of another department where it did not necessarily deal with sexual offences or prostitution. They were not in a position to deal with matters relating broadly to children that did not necessarily create a crime. They were not in a position to decide on those issues because it created budgetary consequences for that committee. For an offence there were not budgetary issues except that there may be more crimes in court, more judges and prosecutors. But issues about children and how to avoid these issues was a new ball game involving infrastructure, then only that department could attend to it.
Adv Masutha added that when he had introduced an amendment to the Child Care Act in 1989 which specifically created the crime of child prostitution. This was in light of the Constitutional Courts questioning the crime of prostitution in general. It had always been with the understanding that the appropriate location of the issues of child prostitution would be in a revised and comprehensive statute around sexual offences. One would therefore want to look at the formulations in other acts and conventions
The Chairperson asked the members to take note of that as he did not find any Bills from Social Development in the schedule. He did not approve the scatter gun approach which created many offences if offences on child prostitution already existed. He would want to know if new offences were being created and which statutory offences already existed, especially if Adv Masutha said that offences with what seemed to be a wider scope creating certain duties already existed. He said that he hoped that had been done.
Ms. Clark replied that the project committees on Sexual Offences Act and the Child Care Bill had met with the result that the offences had been removed from the Child Care Bill but that the protective measures relating to sexual offences had remained in place.
The Chairperson confirmed that the offences in the Child Care Bill would then fall away.
Clause 12 - Prostitution of mentally impaired persons
Mr de Lange stated that Clause 12 was merely a repeat of Clause 11 only relating to a mentally impaired person. The section had been repeated in order to be able to formulate a charge sheet with a direct reference to the section.
The Chairperson confirmed this by stating that the tests for the two persons were in any way completely different.
In answer to a question, it was confirmed by Mr de Lange that there was a definition of "acts that cause penetration".
Clause 13 - Extension of common law incest
Mr de Lange noted that they had reservations about the section and that the Committee he was sure would comment on it.
The Chairperson commented that he did not understand what it meant.
Ms. Clark replied that the common law definition stated that it was only applicable to conventional sexual intercourse between a man and a woman, the offence being between two persons who on account of relation may not marry one another. The intention of the clause was to show acts which were not conventional intercourse, that is, anal intercourse, would be addressed, as well as incest between father and son or mother and daughter which it currently did not.
The Chairperson said that the problem was with incest, which by definition was a crime, was being related to sections of the Bill. The common law act of incest was a separate offence. The section had the wrong approach insofar as the crime of incest should be amended accordingly to add certain prohibited actions and not relate it to three new statutory offences, as contemplated within those offences.
Mr Jeffery agreed saying that what was needed was an amendment to the definition of the crime of incest.
The Chairperson continued that it needed to be clearly stated what was being prohibited.
Adv. Masutha supported the notion of closing the gap in the common law crime of incest but questioned the rationale of defining all crimes under one term rather than looking at one term together with other related crimes.
The Chairperson replied that those were issues that needed to be debated in full. Legally one could provide for anything as a legislator as long as it was constitutional. The definition of rape could be widened but that had other consequences to it and how the courts would use it. The consequences would therefore need to be discussed and it was indeed vital to do so. The widening of a definition would as a consequence cause the revisiting of sentencing.
The Chair continued that he thought it should be a crime if someone knowingly infected other people with HIV/AIDS. This had been included under rape by introducing that having sex with someone while having HIV /AIDS removes the consent of the other person, making the act between consenting person's, rape. He felt that specific offences should be created around AIDS and particular practices outlawed. The widening of the definition of rape would have many consequences and would be settled in the debates and the points would be addressed.
Adv. Masutha questioned the outcome if someone raped while knowing they had AIDS.
The Chairperson agreed that that had also not been addressed. In conclusion, he noted that incest had to be re-drafted completely.
Clause 14 - Witness to be notified of protective measures
Clause 15 - Vulnerable witness
Mr de Lange stated that Clause 15 made provision for the declaration of persons as vulnerable witnesses and Clause 14 stated that the prosecution must inform a witness that he may be a vulnerable witness or the possibility that he or she may be declared as such then certain protective measures will be afforded to that person.
The Chairperson questioned why people had to be declared vulnerable witnesses as the Criminal Procedure Act already afforded such protection. The clause put an obligation on the court in that any woman complainant or any child would always be declared a vulnerable witness, when one had just moved away from the concept that a female witness was different from any other witness by having rejected the presumption in the constitutional court and having amended the law in that one must always look carefully at a women evidence.
The Chairperson continued by questioning why certain occurrences automatically classified a person a vulnerable witness. There was no sense or logic to it as it created categories of people again.
Ms Clark responded stating the intention was to prevent secondary victimisation.
The Chairperson said that this was not prevented by declaring persons vulnerable witnesses. He said that the prejudices of the people in the system lead to secondary victimisation and declaring someone a vulnerable witness was not going to help that. He was surprised by the new categorisation of people.
Ms Camerer responded saying that on their visits to court to have found that systems to prevent secondary vitimisation are not in place. People were not bothering and were under no sanction if they did not implement them. The terminology may be unfortunate but that the intended procedures should not be lost and the courts should be insisted on putting these in place to prevent secondary victimisation.
The Chairperson responded vehemently by questioning what the clause automatically called for in the provision of services.
Mr Jeffery said that a comparison needed to be made with other jurisdictions and section 158 of the Criminal Procedure Act. He was concerned with the mandatory nature of subsection one and the vagueness of subsection two and that the court should have a broader discretion in this respect. One would need to beef up the Criminal Procedure Act on general application and look at other jurisdictions on this aspect.
Adv. Masutha agreed that the issue was revisiting the Criminal Procedure Act and the adducing of evidence despite the seriousness of the sexual offences. This may result in two parallel procedures to be followed, one relating to sexual offences and another relating to all other offences, which may have to be revisited and needed to be considered in a long term perspective.
The Chairperson questioned if the processes had been costed, to which there was no reply. He said he could not pass a law when he knew that it could not be implemented, such as close circuit TV. He felt the clause was useless. He had not been told whether the department actually had a budget for it and the committee was tasked with ensuring it was implemented. These provisions, as with the Child Justice Bill, had to be costed to ensure that the budget are in place to achieve the intentions of the Act.
Mr de Lange replied that there were three sets of provisions that were not approved by cabinet or forwarded to it:
The appointment of support persons, which they felt would result in expenditure;
That the state in respect of all complainants who sustained injuries in sexual offences cases, was to provide appropriate medical care and counseling; they were at that point in time in the process of determining exactly what the cost implication would be;
The drafting of a national policy framework, which is still partly contained in the Bill (Clause 24) but had however been more elaborate;
The Chairperson replied that one could not however pass a law if the costing had not been done. The clause was so wide that he thought Mr de Lange should give to the committee all the statistics on any crime and complaints that would fall within the parameters of the Bill over the previous year or due to the moratorium over the year previous to that. The conceptual problems would be dealt with at a later stage.
Mr S N Swart commented that it should be borne in mind what had been done with the Child Justice Bill. In agreement with the Chairperson, he also would have like to have seen a full costing done.
Mr Jeffery stated that he would like to see the provisions of comparative jurisdiction and criminal procedure reflected in the clause. He did not feel that the moratorium had any effect.
Ms Camerer commented that Mr de Lange had hinted that Section 21 had been removed that inter alia would provide for an obligation on the state to provide anti viral drugs for rape survivors, were indeed looking at it, which in turn was not equating to what government spokesperson had said. She wanted to know if Section 21 was going to disappear or whether after a costing there was a chance that it was going to be brought back.
The Chairperson replied that the manner in which the clause was currently drafted, it would never be passed. It was the policy of the government and a judgment of the constitutional court that those people would be provided for with anti viral drugs and it would be foolish to put such a policy into legislation, particularly in the form it was currently being presented.
Ms Camerer responded saying that there may be a glimmer of hope that it would be revisited once the costing had been done from what Mr De Lange had said and she requested him to clarify it.
The Chairperson stated that the clause as out and that no were in the world would such a clause be passed.
Ms Camerer said that they would argue for the clause and would like to see the clause in legislation, which was to place an obligation to provide the drugs to rape survivors.
Mr de Lange responded that it was currently being costed.
The Chairperson stated that the Ms. Camerer was only referring to some of the cost implications and not all of the cost implications as was suggested in the clause by the Law Commission. All further information and assistance was being provided by the Department of Health and the issue was being dealt with by them. The costing that was being done was for all the implications, not only the life threatening ones.
He was not going to allow Ms Camerer to politisise an issue as the Law Commission was already dealing with the issue and doing a costing on all expenses. At that moment it was not a proposal that the justice committee was supporting.
Ms Camerer said that not all the womens groups were seeking election, it was a universal outrage that the issue was to be excluded as a legal obligation on the state.
The Chairperson noted that Ms Camerer was being disingenuous as it was not in fact the case because there was no country in the world that did so. Anti retroviral had already been agreed to by the government but this was not the proposal in front of them that day. The proposal had been made without it having been costed.
Ms Camerer asked why had the clause been included.
The Chairperson replied that it was because the drafters were not in government. He asked further which other jurisdictions addressed this.
Ms Clark responded stating that San Francisco, New York and France provided for treatment of STD's.
The Chairperson replied saying that did not have anything to do with all the offences and was not what being proposed.
Clause 16 - Evidence of previous consistent statements and delay in reporting
Mr de Lange stated that the courts should not draw a negative inference when hearing a sexual offence solely on account of the fact that a previous consistent statement had not been made by the defendant or because there was lengthy delay of the commission of an offence and the reporting thereof. It was a cautionary provision and he was not sure if it would really contribute.
Mr Jeffery was concerned with the section because there would be no consistent statements if it was the first act or crime.
Mr de Lange referred to the rule on corroborating evidence and not being able to rely on it.
The Chairperson asked Mr de Lange what exact terminology they were trying to avoid. That for example the rule on self-corroboration would not be relied upon. He asked whether there was there a rule that the courts applied.
Mr Jeffery commented that Clause 17 was allowing circumstantial evidence and what was aimed at, was to prevent a court from drawing an adverse inference from the fact that the complainant took a long time to report the offence, one wanted other supporting circumstances. It was suggested to include the clause under 17.
The Chairperson replied that a rule of evidence could be removed that treated women differently, common law principles could be removed that were wrong but not the conduct of parties in court.
Mr de Lange said that case law may be needed to be looked at.
Mr Swart added that the question was to what degree one could through legislation curtail the judiciary drawing a negative inference from a previous consistent statement not having been made.
The Chairperson said that one could only remove a common law which was based on bias. This would be needed to be checked.
Adv. Masutha added that the problem lay with the word "solely"
The Chairperson agreed but one could not influence people to draw inferences, only if there was a rule which said that a person needed to draw an inference that there was a problem and needed to be removed. Ms Clark was asked to research the issue whether there was indeed such a rule.
Clause 17 - Evidence of surrounding circumstances and impact of sexual offence.
Mr de Lange said that it dealt with evidence of surrounding circumstances and the impact of sexual offences. Meaning one was allowed to lead evidence of surrounding circumstances under certain circumstances as set out in the clause.
The Chairperson asked what in the law presently stopped one from leading the evidence.
Ms Clark responded that it was not something that was not allowed but that it was simply not practiced and they wanted to draw the courts attention to it.
The Chairperson replied that one could not prescribe the conduct of lawyers.
Ms Clark continued saying that they were trying bring across the importance of expert testimony.
Mr Jeffery asked what the rule was on similar fact evidence.
Mr de Lange replied that he was not aware of any specific exception to the rule of similar fact evidence.
Mr Jeffery noted that the section did not refer to expert evidence but evidence of the surrounding circumstances. This evidence was under normal circumstances admissible when it was relevant. He continued the impact of a sexual offence related to more of the purposes for sentencing.
The Chairperson concurred stating that it was difficult to work out what the clause actually meant and highlighted the contradictions contained in it and finally raised the question of whether it was in fact needed at all.
Ms Camerer agreed that it seem to be a drafting problem as the sexual offences needed to be linked to the circumstances in order to prove the crime.
The Chairperson stated that his problem was that no rule or practice that allowed one to lead evidence on certain aspects and leave out the rest. He was also unclear as to what it was trying to address, it created a problem because left out certain parts which would also be needed to help from a sexual offence. The two problems were the necessity of it and the impact of it.
Clause 18 - Application of caution and requirements for corroboration
The Chairperson asked if a law had not already been passed to remove that.
Mr de Lange replied that he was not sure on it, he knew there was case law but would check up on it.
Mr Jeffery said that in the event that it was not removed, he considered the wording problematic as it inferred that it was the existing common law.
Ms Clark responded saying that academics said that the rule has been removed but that the discretion was still present.
The Chairperson disagreed insofar as no court had a discretion after a SCA ruling. He continued that he agreed with Mr Jeffery in that the wording should read that any law or rule of practice that did not treat the evidenceâ€¦ and thereby amend the common law. The Chairperson asked Mr de Lange to circulate the judgment and also to check whether they had had passed a law to amend the common law.
Adv. Masutha commented that there was a rule of interpretation that stated where Parliament wished to repeal a common law, it needed to do so expressly.
Clause 19 - Drug and alcohol treatment orders
Mr de Lange stated that Clause 19 made provision for a court to grant an order in terms of section 296 of the CPA that the accused be subject to drug and alcohol treatment in addition to the sentencing.
Ms Camerer asked if this clause had been costed and if not should it not be removed from the Bill until it had. It was ironical that the victim could not have their issues reflected in the Bill but that the perpetrators could.
Ms Clark stated that the courts could already make an order in terms of Section 296 and was already in place.
The Chairperson asked if the clause had been costed.
Mr de Lange responded that it had not ever been costed as it was an existing remedy that was already available.
The Chairperson questioned the necessity of the clause if was an existing remedy as it created an obligation on the state.
Mr Jeffery pointed out that the clause was optional while the removed clauses had been obligatory. The only reason for placing it in the Bill was for ease of reading but that there was no need for it.
Ms Camerer commented that she had specifically asked for an amendment to the CPA to cater for victims and one need to look at it.
Mr Swart commented that one should possibly amend the CPA to get the offender to contribute to the costs.
Adv. Masutha noted that the CPA made provision for the prosecutor to institute civil proceedings on behalf of the victim. He questioned whether that would not include the costs of rehabilitation and if the law therefore did not already provide for it.
Mr de Lange replied that they needed to make provision for something new in addition to the provisions of the CPA.
The Chairperson summarised that all the clause said was that specifically for sexual offences it would be looked at, the problem being that it did nothing but for the benefit of the accused. The matter would be revisited at a later stage.
Clause 20 - Supervision of dangerous sexual offenders
Ms Clark summarised the clause and that what they were trying achieve was in terms of sub clause two.
The Chairperson stated that what it in fact did was created another burden on the state. If someone had been declared a dangerous sexual offender after being released then there was a further duty on the state to give him a rehabilitative program to that person, no matter how long he had been in jail. This therefore related to every sexual offender.
Ms Clark commented that it may not need to be supervision but could be in terms of an interdict.
The Chairperson replied that that conflicted with sub 3 which said that a long term supervision referred to one of a rehabilitative nature of not less than 5 years. The substantive portion however related to the rehabilitative program. Eh continued to asked what the aim of the program was.
Ms. Clark replied stating that the aim was community protection as opposed to retribution.
The Chairperson asked whether it had been costed and if it was part of the ongoing costing, why was it still in the Bill. He continued by asking how many people were found guilty of rape per year. 95% of rape cases would therefore fall under the section of 20(1) and in that case what would be the cost implications. It may be a good thing but questioned whether it had been costed and would the department be able to provide it. He wanted to look at the concept they were trying to create, the costing and what the impact of it was if it was desirable.
Adv. Masutha questioned whether the current clause was not the appropriate place to discuss sexual offences with the purposes of spreading life threatening diseases.
Ms Clark responded saying that they had done a piece of research on this occurrences and had felt that the common law had been adequate.
The Chairperson responded that they had not looked at the issue and that the question should be taken forward. He continued by asking whether the issue of blacklisting had been considered and if not, why it had not been considered. He wanted to see a black list or register of pedophiles in the country.
Ms Clark responded that it had been considered but it had been felt that it created a false sense of security.
The Chairperson did not agree with this view and felt that it was not a good argument. He directed Mr de Lange to make a note to look into the issue of a register. Society needed to be helped against pedophiles and the easiest way was by means of a register. The perpetrators needed to be aware of the consequences of their actions when they prey on children. He remarked that he needed to know when he sent his child to a crèche he was not sending his child into the arms of a pedophile. There was no agreement on it yet and the necessary research needed to be done on it.
Mr Jeffery noted that the Chairpersons comments related to Clause 23 and the disclosure. He then questioned whether a sexual offence should not be defined a lot broader to included offences from other countries.
The Chairperson concurred and noted that he wished to think through the legalities of Clause 23 and the issues relating to disclosure. Whether it was a register or a disclosure, Mr Jeffery's point was correct.
Ms Camerer said that she had understood that a register had in fact been started and when it was raised by Ms Moleketi the question had been where the register would reside, with an indication that it should reside with the department of social development with restricted access. The question was how the register would be managed.
The Chairperson continued by asking whether it was a register of sexual offenders or register of child molesters. As far as privacy was concerned, this being one more right, and he did not foresee a problem. The problem was not with the register but who would have access to it and what the consequences would be. The Law Commission had come up with an opinion with which the Chairperson's opinion did not concur. He therefore asked Ms Clark and Mr de Lange to gain information and comparative studies on the topic.
Adv. Masutha commented that the SAP had a private register on suspects for the purpose of assisting in investigations and research. The question he raised was whether there was a need for another register, when the police already had one and what the other related issues were.
The Chairperson requested Mr de Lange to find out from social development and the police what they had in that context and to gain an input from them in terms of a submission to the Bill. However if the register contained only suspects he deemed that to be unconstitutional if any consequence flowed therefrom.
Adv. Masutha replied by saying that his point was that different registers were being kept for different purposes.
Mr de Lange commented that with the review of the Child Care Act, the Law Commission was proposing a national child protection register. The register will contain the names of children needing care and protection and those found unfit to work with children by a court or administrative forum in disciplinary proceedings.
The Chairperson replied by saying that one may not need a register because it was being considered elsewhere. He then asked Ms Camerer to give him copies of the parts of her Bill including the definitions and referrals to registers. The Chairperson confirmed that the issue relating to the register was definitely up for discussion.
Ms Clark commented that their mandate was very wide and hey had looked at legislative and non-legislative recommendations and although they had not recommended a new register the departments needed to deal with on their own accord. The police has a register on convicted offenders and they had recommended to them that it be expanded and a separate category be made for persons who are convicted of a sexual offence.
The Chairperson reiterated to Ms Clark that a package be put together with Mr de Lange on the Child Care Act and other work that had been done to be passed on to the committee so that it be readily available and part of the public hearings and suggestions will be made. Added to that are the Departments who have those types of registers to add an input on what register they have and what they use it for.
The Chairperson addressed to Mr de Lange that the costing of Clause 19 & 20 was absolutely vital.
Clause 21 - Non-disclosure of conviction of sexual offence
The Chairperson questioned whether a crime could be unconstitutional. The question relating to the clause in his opinion was whether it was wide enough.
Mr Jeffery suggested that it was only restricted to children and did not include women and rapists who come into contact with women. He questioned whether the cleaner of a women's residence should not have to disclose the fact.
The Chairperson agreed and noted that it would have to be made very wide and one would therefore have to have another look at it.
Mr J T Maseka commented that the question was how disclosure should be made and to whom it should be made.
The Chairperson concurred and noted that one would need to look at the wider ramifications of the clause.
Adv. Masutha commented that it was not about the providing of a service by anyone but the onus that was placed on the person.
The Chairperson commented that the duty created then had to be to whom it was then reported. If one needed to look at the Child Care Act and if the duties were not there and the reporting thereof, then it needed to be taken up with that committee. If on the other hand offences needed to be created to create sanctions to back them up, then they needed to inform the Justice Committee.
The Chairperson asked Mr de Lange to get a copy of the Child Care Act. The duties created in the Child Care Act may need to be supported in the Bill through the creation of sanctions for example it being a crime not only to knowingly own the property but would it also be a crime for not reporting while living on the property.
Clause 22 National Director of Public Prosecutions to decide whether police investigation should be discontinued
D Clark (SALC) said that the power to decide whether investigation of a complaint that a sexual offence has been committed shall rest with the National Director of Public Prosecutions. A number of committee members had concerns with this clause. Mr J H Jeffery (ANC) asked the presenter to outline what would happen in case where the National Director decides to discontinue the investigations and a witness comes along after the case has been close. He asked if it would be possible to reopen the docket. He concluded that the clause was bizarre and would add confusion. Advocate de Lange said that the clause would be unconstitutional as crime investigation is the preserve of the police. Solomon, Imam G (ANC) said that sexual offences are viewed in a very serious light. He felt that the police might close serious cases and hence the need to have the National Director decide on this issue. Advocate M Masutha (ANC) felt that issue was not about managing the docket but managing the police. The Chairperson said that there are other structures to decide whether investigations should be discontinued. He said that such structures exist even with the police force and therefore there is no need to involve the National Director of Public Prosecutions.
Clause 23 Extra-territorial jurisdiction
D Clark said that clause seeks to extend the jurisdiction of South Africa courts to cover acts committed in other countries by South African citizens or permanent residents even though the act does not constitute an offence in the country concerned.
Advocate de Lange asked if it was proper to extend the jurisdiction of the courts by creating a crime which does not exist in the country concerned. Mr Jeffrey asked as to what would happen in cases where a South African commits a crime in another country and is charged in terms of the proposed section and at the same time that other country seeks extradition of the offender. He requested that a clause should be inserted to make provision for consultation with the country wherein the offence took place. Advocate Masutha asked if there are precedents wherein a crime is created in a country which does not recognise the act as an offence. He also asked the presenters to address their minds on the question of conflict of laws especially the issue of which court will have jurisdiction to try the accused.
The presenter said that the clause is identical to some provisions of Acts in modern jurisdictions like Sweden. She went on to say that there are treaties that regulate the extradition of offenders and that Interpol is also important in this regard.
Clause 24 National policy framework
This clause empowers the Minister for Justice and Constitutional Development to prepare a national policy framework to guide the implementation, enforcement and administration of this Act. Advocate de Lange said that this must be tabled in parliament 6 months after review.
Clause 28 Regulations
The clause provides that the Minister for Justice and Constitutional Development may make regulations in consultation with the Ministers of Safety and Security, Correctional Services, Social Development and Health. Mr Jeffrey said that this clause is problematic given the fact that the regulations sought to be made may not concern the minister specified and therefore consultation with them would be unnecessary.
Clause 29 Repeal and amendment of Laws
The clause provides that the Acts specified in Schedule 2 are repealed or amended to the extent set out in the third column of that schedule. Advocate de Lange asked the presenter to furnish copies of the repealed or amended sections so that members would know what is happening.
Clause 30 Short title and Commencement
Advocate de Lange asked the presenter to clarify this clause because as things stand it seems that there would be two different Acts with same name.
Promotion of National Unity and Reconciliation Amendment Bill
Adv A Gordon (Department drafter, State Law Advisor) reminded the committee that one of the declarations in the preamble to the Promotion of National Unity and Reconciliation Act (the TRC Act) noted that the (1993) interim constitution states that the pursuit of national unity, the well being of all South African citizens and peace requires reconciliation between the people of South Africa and the reconstruction of society.
Clause 1 Amendment of s42 of Act 34 of 1995
Adv Gordon said that the current s 42(2) only requires payments from the President's Fund to be made to victims by way of reparation in terms of regulations made by the President. The definition of 'victims' is not wide enough to include the community at large. Clause 1 seeks to insert subsection (2A), which will enable payments to be made from the fund towards the rehabilitation of communities in terms of regulations made by the President.
The Department also seeks to introduce subsection (2B) which says that the regulation referred to in subsection (2A) may prescribe any matter which it is necessary to prescribe for the effective allocation of those amounts. Advocate de Lange asked why subsection (2B) was not inserted under a regulation rather than in the middle of the Act. Advocate Gordon indicated that it was just a matter of drafting and had no objections to putting the proposed subsection under regulations.
Advocate Gordon also said that although provision is made in s47 (3) of the TRC Act that 'any funds or property which, by trust, donation or bequest were vested in, or have accrued to, the President's Fund, and which vest in the Disaster Relief Fund in terms of subsection (1), shall be dealt with by the board of the Disaster Relief Fund in accordance with the conditions of such trust, donation or bequest', no similar provision exists with regard to the President's Fund during the President Fund's existence. Clause 1 introduces subsection (2C) to address this concern.
The Chairperson invited the Department to indicate any other matters with regard to the TRC that they think needed to be dealt with. The Department indicated that there is a problem of people who unsuccessfully applied for amnesty and have been referred back to the Amnesty Committee which is no longer in existence. It was also said that the TRC had declared people dead only to find that some of those people are still alive.
Judicial Matters Second Amendment Bill: briefing
Ms P Naidoo (Department drafter) said that the Bill seeks to amend various laws administered by the Justice Department and which amendments do not require individual amendment Acts.
Substitution of s35B of Act 24 of 1936, as inserted by s1 of Act 32 of 1995.
Section 35B allows for post-insolvency netting or set-off in respect of the obligations of the parties arising from agreements which fall within the definition of 'agreement' for the purposes of s35B (1) the proposed section would allow for agreements that provide for termination and netting of unperformed obligations. Advocate de Lange wondered if the clause is so vital and urgent, given the fact that an amendment to the Insolvency Act is in the pipeline.
Amendment of section 4 of Act 16 of 1965, as amended by section 4 of Act 18 of 1996.
Ms Naidoo said that the intention is to address the reverse onus that is placed on accused persons in order to bring it in line with constitutional jurisprudence. Advocate de Lange enquired if there are any judgements on this issue. Ms Naidoo said that there were no judgements that she knew of and added that the amendment follows concerns from the National Treasury following their review on the subject.
Amendment of section 60 of Act 51 of 1977, as substituted by section 3 of Act 75 of 1995 and amended by section 4 of Act 85 of 1997, section 5 of Act 37 of 1998 and section 9 of Act 62 of 2000
The presenter said that the amendment seeks to compel the court to take the pre-trial services report into account during bail proceedings. The Chairperson asked for a copy of the principal section so that the Committee would be able to see how the proposed amendment fits in.
Amendment of section 276 of Act 51 of 1977, as amended by section 3 of Act 107 of 1990, section 4 of Act 122 of 1991, section 18 of Act 139 of 1992, section 20 of Act 116 of 1993, section 2 of Act 33 of 1997 and section 34 of Act 105 of 1997
The presenter said that the amendment seeks to bring legal certainty around the issue of whether correctional supervision is a competent sentencing option for statutory offences. This is important given the fact that the High Courts have at times excluded correctional supervision as a sentencing option where the relevant statutory provisions do not expressly provide for correctional supervision as a sentencing option. Advocate De Lange asked the presenter to furnish the committee with copies of judgements highlighting this problem.
Insertion of section 13B in Act 53 of 1979
The proposed amendments seeks to make it compulsory for all newly admitted attorneys, whether they are practising as a partner in an existing firm or whether they are practising for own account, to complete a legal practice management course. This would reduce the number of claims against attorneys arising as a result of lack of administrative and management skills.
Responding to the Chair's question whether this issue is not addressed in other Acts dealing with judicial matters, Ms Naidoo said that due to time constraints the issue was not dealt with in previous Judicial Matters Acts.
Mr B Magwanishe (ANC) asked if it was necessary to deal with this issue given that the Department would be addressing this in other amendments in the near future. The Chair said that one is not sure when the amendments would be effected and therefore it is important to address the issue now. He went on to say that it is necessary for universities and the legal profession to report back on the progress of the 4 years LLB degree.
Amendment of section 7 of Act 70 of 1979, as amended by section 36 of Act 88 of 1984, section 2 of Act 3 of 1988, section 2 of Act 7 of 1989 and section 1 of Act 44 of 1992
The proposed amendment would allow the court, when granting a decree of divorce, to make an order that any part of a pension interest which is due to the other party, be paid to such person when the pension benefits accrue in respect of that member. The amendment also places a duty on the registrar of the divorce court to ensure that an endorsement in the records of the funds takes place as soon as possible. This is because the Act is silent on this aspect and it has happened in practice that no endorsement has taken place to the detriment of the other party.
Substitution of section 7 of Act 90 of 1986
The Department proposes amendments to the Sheriff's Act to reflect the change in the name of the Board for the Sheriffs in order to accord the Board its national status. The Board for Sheriffs would be called the South African Board for Sheriffs.
Amendment of section 10 of Act 99 of 1998
Ms Naidoo said that it is proposed that the maintenance court, where circumstance permit (that is, depending on the availability of a Family Advocate), can request a Family Advocate to investigate and report on the welfare of any minor or dependent child affected by a maintenance inquiry. Advocate de Lange opined that judicial officers may not interpret the words 'where circumstance permit' to mean that where there is a family advocate. He requested the department to make it clear that the availability of a Family Advocate is necessary.
Amendment of section 16 of Act 99 of 1998
Ms Naidoo said that the purpose of the amendment is to eliminate any uncertainty about whether pension funds can be ordered to make payments in terms of s16 (2) of the Maintenance Act, 1998
Amendment of section 2 of Act 42 of 2000
Ms Naidoo highlighted the fact that the Department was requested to investigate the possibility of creating a mechanism in the Cross Border Insolvency Act, 2000, which will regulate legal proceedings which are pending at the time the Minister withdraws a notice in terms of which a State has been designated as a country for the purposes of this Act. The proposed amendment gives effect to this request.
Amendment of section 16 of Act 47 of 2001
Ms Naidoo said that the Department has noted the fact that the pensions payable to retired judges or their widows deteriorated over time to such an extent that these pensioners are in a very unfavourable position when compared to judges and widows of retired judges who fall under the scope of the 1989 legislation and the new Act. She went on to say that when attempting to apply the provisions in practice, the National Treasury experienced difficulties since some of the widows would have received less than what they are currently receiving. The proposed amendment intends to address this difficulty. Advocate de Lange asked if the proposed amount that the department seeks to pay is enough. Ms Naidoo replied in the affirmative.
The meeting was adjourned.
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