Child Justice Amendment Bill [B32B-2018], Cybercrimes Bill [B6B-2017], Traditional Courts Bill [B1B-2017]; Civil Union Amendment Bill [B11B-2018]: preliminary briefing

NCOP Security and Justice

08 October 2019
Chairperson: Ms S Shaikh (ANC: Limpopo)
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Meeting Summary

The Committee researcher and a parliamentary legal advisor  briefed the Committee on four of the seven Bills that lapsed at the end of the Fifth Parliament and which would be revived: Cybercrimes Bill; Child Justice Amendment Bill; Civil Union Amendment Bill and Traditional Courts Bill.

Cybercrimes Bill
This Bill was introduced because existing laws did not address cybercrime effectively. Cybercrime was rapidly increasing and evolving and there was thus a need for continual involvement of experts. Cybercrime legislation should not be restricted to criminal conduct considered as cybercrime but should also apply to traditional offences with a cyber-element. The Bill was tagged according to Section 75 of the Constitution. This meant that the Committee could only propose amendments to it,which would be considered and then adopted or rejected by the National Assembly.

Civil Union Amendment Bill
The Bill would repeal Section 6 of the Civil Union Act of 2006 which provided that a marriage officer who was a civil servant in the employ of government may refuse to solemnise the civil union of same-sex couples.

The  Civil Union Act was the result of a Constitutional Court judgement. The Court had ruled that it was unconstitutional for the state to provide benefits of marriage to opposite-sex couples whilst denying them to same-sex couples. This was an infringement of the right to equality before the law and the right to not be discriminated against by the state on the grounds of sexual orientation. Civil marriage officers should not have the legal right to object to conducting same-sex marriages because of the secular nature of the marriages they conduct; it was not a religious service and the words of the marriage formula were of a legal rather than religious nature. The Section 75 Bill had already been passed by the National Assembly and was being referred to the NCOP for concurrence.

A Committee Member clarified that a marriage officer who refused to conduct marriages on religious grounds, would be compelled to conduct them on the basis of protecting the rights of others.

Child Justice Amendment Bill
This Section 75 aimed at amending the Act to increase the minimum age of criminal capacity of children from 10 to 12 years and to remove the provision that the state prove criminal capacity of a child 10 years or older but younger than 14 years, for purposes of diversion and preliminary inquiries. The original Act had provided for review of the minimum age after five years.

Despite the guidelines of the African Charter on Human and Peoples’ Rights principles urging countries not to set the minimum age below 15 years, the review recommended that the age, at this stage, be capped at 12 years and not higher. This was because it would be too big a leap to raise it from 10 to 14 without tangible evidence of the effectiveness, availability and adequacy of the support programmes currently offered to children less than 10 years old, in conflict with the law. The Bill allowed for another review in the future.

A Member noted that the United Nations standard for minimum age for criminal capacity was 14.

Traditional Courts Bill
This had the object of creating a uniform legislative framework to regulate the role and functions of traditional courts in the resolution of certain disputes, in accordance with constitutional values. The Bill was intended to improve access to justice by enhancing the effectiveness, efficiency and integrity of traditional courts for resolving disputes, with the view to promoting social cohesion, co-existence and harmony. Two previous bills dealing with traditional courts had not passed through Parliament in 2008 and 2012 due to opposition. It was suggested by the committee researcher that the previous concerns had been addressed. As a Section 76 Bill, it affected the provinces and would be subject to public hearings in the provincial legislatures.
 

Meeting report

Opening Remarks
The Chairperson said that there were seven outstanding Bills from the Fifth Parliament and the Committee would be briefed on four of them by the Committee support staff. The Committee would engage the Department on these Bills at a subsequent meeting.

Cybercrimes Bill [B6B-2017]: briefing by committee researcher
Ms Patricia Whittle, Committee Researcher, said that cybercrime was fast-growing and in 2017 it cost the banking industry more than R250 million. From January to August 2018, digital banking showed a 64% increase on the 2017 figures. There were other verifiable statistics of cybercrime outside the banking sector and they were estimated to be equal to that in the banking sector.

The existing laws did not address cybercrime effectively. For example, for substantive criminal law, specific conduct should be criminalised as cybercrime. Object-based criminal law was inadequate to investigate cybercrime where the evidence was of an incorporeal nature; they had not kept pace with the more intrusive and complex investigative measures which were needed to investigate cybercrime. In most instances, these crimes were found to have a transnational dimension and this necessitated formalised international cooperation; traditional forms of cooperation were slow and not conducive for cybercrime investigations due to the transient nature of evidence. The law of evidence needed to provide for the admissibility of electronic evidence and the circumstances under which it may be admitted as evidence.

It was crucial for service providers to cooperate by providing the essential information, which was available at their disposal, to assist with investigations; a legislative response would have to balance the respective human rights involved.The modus operandi of committing cybercrime was found to be rapidly evolving and there was thus a need for continual involvement of experts. Another remedy for this was to align policy with international trends, generally accepted standards and practices. A cybercrime legislative framework should not be restricted to criminal conduct considered as cybercrime but must also apply to traditional offences with a cyber-element.

Ms Whittle gave a brief overview of the provisions of the Bill and detailed its components – the clauses of the various chapters. The Bill was tagged according to Section 75 of the Constitution. This meant that the NCOP Committee could only propose amendments to it, which would be considered and then adopted or rejected by the Portfolio Committee on Justice and Correctional Services in the National Assembly.

Discussion
Mr G Michalakis (DA; Free State) thanked Ms Whittle for the presentation and said he would reserve his questions for the meeting with the Department of Justice on 9 October 2019.

Mr S Mfayela (IFP; North West) asked which digital platforms were most susceptible to cybercrime.

The Chairperson suggested that this question should be posed to the Department.

Ms Whittle agreed that the Department would be in a better position to adequately answer the question.

Civil Union Amendment Bill [B11B-2018]: briefing by Parliamentary Legal Advisor
Ms Noluthando Mpikashe, Parliamentary Legal Advisor, explained that the Bill sought to repeal Section 6 of the Civil Union Act (2006) which provided that a marriage officer was not compelled to solemnise civil union. The effect of this was that civil servants in the employ of government may refuse to solemnise a civil union between same-sex couples. In the case of civil marriages for couples of the opposite sex, the Act provided that a marriage officer was to solemnise all marriages and was not allowed to refuse to solemnise a marriage on the grounds of conscience, religion or belief. However, the same officer was still permitted to refuse to solemnise same-sex couples on the grounds of conscience, religion or belief.

Ms Mpikashe explained that Section 15 of the Constitution guaranteed the right to freedom of religion, belief, and opinion. This fundamental right was well-entrenched in international law, in the International Covenant on Civil and Political Rights. However, the Covenant specifically allowed this freedom to be limited by law, if necessary, to protect public safety, order, health or the fundamental rights of others. The Section 15 right was not absolute as the right was subject to Section 36 - the limitation clause. The courts had shown an inclination to avoid a limitation clause analysis of Section 15 where possible, preferring to restrict the scope of the Section 15 right instead. The effect was that not every practice claiming to be an exercise of the freedom of conscience, religion and belief was to be treated as such by the courts.

Ms Mpikashe said that the courts would test the sincerity of the claimants and require them to show a substantial burden on the exercise of the freedom or that the prohibited practice was central to the tenet of the religion. The courts would not protect practices that were specifically excluded from protection elsewhere in the Constitution; in this case, refusal to solemnise same-sex marriages was not protected against the right to not be discriminated on the grounds of gender and sexual orientation. In the court case between Christian Education South Africa and the Minister of Education, the Court remarked that religious people could potentially use freedom of religion as a shield to fend off attacks on constitutionally offensive group practices. A distinction thus had to be made between holding a belief and the public expression of the belief.

The original Act was enacted as a result of a Constitutional Court Judgement. The Court had ruled that it was unconstitutional for the state to provide benefits of marriage to opposite-sex couples whilst denying them to same-sex couples. It said that this was an infringement of the right to equality before the law and the right not to be discriminated against by the state on grounds of sexual orientation.

The Court had accommodated the right of religious leaders and commented that the state could not compel religious marriage officers to solemnise same-sex unions as that would be interfering with the sacredness of their religion. However, for marriage officers who were civil servants, the Court held that the principle of reasonable accommodation could be applied by the state to ensure that the officers who had sincere religious objections would not be obliged to do so if this resulted in the violation of their conscience.

Parliament reserved the right to refine or replace the remedy with another legal arrangement that met constitutional standards. The Bill's repeal of Section 6 expressed that unlike religious bodies, civil marriage officers should not have the legal right to object to conducting same-sex marriages because of the secular nature of the marriages they conduct. It was not a religious service and the words of the marriage formula were of a legal rather than religious nature.

The Bill had already been passed by the National Assembly and was being referred to the National Council of Provinces (NCOP) for concurrence.

Discussion
Mr Michalakis pointed out that the Member of Parliament who had proposed the Bill was no longer a Member; he asked if this would affect the passing of the Bill.
 

Ms Mpikashe replied that the Bill had already been passed by the National Assembly. Therefore the Bill would still be processed despite the fact that Ms Deidre Carter was no longer a Member of Parliament.

Mr A Gxoyiya (ANC; Northern Cape) asked if marriage officers who refuse to conduct marriages on religious grounds, would be compelled to conduct them on the basis of protecting the rights of others.

Ms Mpikashe clarified that Section 15 rights were not absolute. The Constitutional Court had ruled that a civilian’s freedom of religion should not infringe on the rights of others. For officials in the employ of the state, the state had the obligation to fulfil all the rights guaranteed in the Constitution, in consideration of the limitation clause.

Child Justice Amendment Bill [B32B-2018]: briefing by committee researcher
Ms Whittle explained that the primary objectives of the Bill were to amend the Act to increase the minimum age of criminal capacity of children from 10 to 12 years and to remove the requirement of having to prove criminal capacity for purposes of diversion and preliminary inquiries. The Act had provided for the review of the minimum age after five years of its enactment and for the Justice Minister to compile a report with recommendations. For this review, a national experts workshop was held in February 2015 with attendance by selected experts in the children’s sector, academia, psychologists, psychiatrists, the judiciary, the Department of Health, the National Prosecuting Authority (NPA), Legal Aid SA and civil society organisations specialising in children issues, including the Inter-Sectoral Committee on Child Justice members.

The statistical data in the report indicated that very few children between 10 and 11 years were in conflict with the law. Also, recent research on the brain indicated the development of the prefrontal cortex was not achieved until early 20s or later. This played a role in the establishment of the minimum age for criminal capacity of a child. The report noted that the African Charter on Human and Peoples’ Rights principles and guidelines had urged African countries not to set the minimum age below 15 years. Some states had set it at 18 years such as Nigeria, Mali and Guinea and some at 16 years such as Angola, Cape Verde, Liberia.

Despite the position in other African countries, the Report on the Review of the Minimum Age of Criminal Capacity recommended that at this stage, the age be capped at 12 years and not higher. This was because it would be too big of a leap to raise it from 10 to 14 without tangible evidence of the effectiveness, availability and adequacy of the support programmes currently offered to children less than 10 years old, in conflict with the law. The report recommended the removal of the Act provisions which required the state to prove criminal capacity of a child 10 years or older but younger than 14 years, for purposes of diversion and preliminary inquiries; citing that it had unintended negative consequences for children. Cabinet approved the Ministry report in February 2016 which was submitted to Parliament. The Department briefed the NA and NCOP Justice Committees in September 2016. In June 2017 the Department submitted a report to the Portfolio Committee on its consultation with the National House of Traditional Leaders and civil society organisations specialising in children’s issues.

Discussion
Mr Michalakis said that the United Nations standard for the minimum age for criminal capacity was 14 years and asked if the Department had chosen not to adopt the UN standard as a precautionary measure. What would be the consequences of aligning SA’s policy with this standard? Has the Department discussed the timeframe for the next minimum age review with the Portfolio Committee?

Ms Whittle replied that the recommendations ascertained from the public submissions process was that the Bill should raise the minimum age to 15 years but the Portfolio Committee decided to cap it at 12 years. The Justice Minister said that the capping would allow the Department to assess the impact on child crime statistics and the associated court processes. The Minister said that rapidly changing the threshold would affect the function of courts when dealing with these cases. The Bill provided that a review could be done after five years.

Mr K Motsamai (EFF; Gauteng) said that during his oversight visit to the Johannesburg Prison, he discovered children as young as seven years were imprisoned. He asked how this was possible.

The Chairperson asked Mr Motsamai to reserve his question for the Department.

Traditional Courts Bill [B1B-2017]: briefing by committee researcher
Ms Whittle said that the object of the Bill was to create a uniform legislative framework regulating the roles and functions of traditional courts in the resolution of certain disputes, in accordance with constitutional imperatives and values. The Bill was intended to improve access to justice by enhancing the effectiveness, efficiency and integrity of traditional courts for resolving disputes, with the view to promoting social cohesion, co-existence and harmony. Traditional courts had to be aligned with the new constitutional dispensation. Every effort had been made to address the concerns raised in the two previous bills dealing with traditional courts which were introduced into Parliament in 2008 and 2012 – most significantly about the role of women and vulnerable groups. These had since been considered and addressed. This Bill recognised other levels of dispute resolution in the traditional justice system, such as headman or headwoman’s court, senior traditional leader’s court and king or queen’s court.

Ms Whittle said that a Reference Group, established by the National Dialogue on the Bill in December 2015, met on numerous occasions during 2016. The group consisted of representatives of civil society, traditional leaders and government. Its mandate was to discuss outstanding matters relevant to the Bill, assist in the development of the Bill and pave the way for its introduction to Parliament. The deliberations of this group helped shape the Bill into its current form. Before it was introduced, it was subjected to a costing exercise by the Costing Unit within the Department. Due to economic constraints, it was accepted from the outset that existing resources would have to be used for its implementation. The main financial implications for the state would be in the form of personnel, training as well as goods and services. As this was a Section 76 Bill, it affected the provinces and would be subject to public hearings in the provincial legislatures.

Discussion
The Chairperson asked the Members if they had any questions or if they would prefer to pose them to the Department of Justice on 9 October 2019.

The consensus amongst Members was to reserve the questions for the Department.

The Chairperson thanked the support staff and the Parliamentary Legal Advisor for their presentations. She expressed the hope they would continue to work with the Committee effectively.

The meeting was adjourned.
 

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