The meeting took some time to get underway as the Portfolio Committee had been unaware that the Department of Justice and Correctional Services Annual Report 2018/19 on Criminal Law (Sexual Offences and Related Matters) had been submitted to Parliament at the same time as the Annual Report on the Department of Justice and Constitutional Development.
An integrated report was presented to the Committee by the responsible official from the Department of Justice and Constitutional Development on behalf of the nine departments that were stakeholders in the matter, even though each stakeholder was obliged to report separately on their progress in implementing the Act. Owing to short notice of the meeting, not all stakeholders were present but the National Prosecuting Authority and the South African Police Services were amongst those present. The Deputy Minister of Justice and constitutional Development was also in attendance.
The presentation noted that the Constitution did not speak to the rights of the victims of crime whereas it was protective of the rights of accused persons. That was an anomaly that needed to be fixed. The Service Charter for Victims of Crime of SA addressed the rights of victims but the Service Charter did not have the same legal teeth as the Constitution. Sexual violence fell within the family of gender violence and femicide as many women were sexually violated before being killed. The UN had stated that SA had brilliant legislation but was failing to link paper law to action.
SAPS crime statistics on sexual offences registered 50 108 cases in 2018 and 52 420 cases in 2019 – an increase of 4.6%. There was a discrepancy between SAPS statistical records and the NPA records because of the way that crimes were recorded by each entity. However, what was common was the increase in the number of sexual offences recorded by both sectors. In 2018/19, 692 life sentences had been handed down for sexual offences. Statistics showed that Government was providing support with lean human resources as there were vacancies in every sphere. However, training was ongoing. Recently a Data Verification Project had been undertaken by the Registrar for the National Register for Sexual Offences. 32 570 entries had been verified, 24 912 entries were validated and 7 658 entries were being re-tested. The Register itself had also received a clean audit from the Auditor-General South Africa.
The most significant limitations to the implementation of the Act were the high staff turnover and under-resourced support service points. There was a need to strengthen coordination at the frontline level and to ensure more equitable services across the Criminal and Justice System. There had been delays in legislation for victim support services and delays in systems integration for Crime Victims Solution. The uneven quality of reporting and the misalignment of indicators and statistics across departments remained an issue.
Members asked if there was a problem with Directors-General not attending the Inter-Directors-General meetings. Members asked for further details, including the number of meetings held and the attendance. Members wanted the names of stations where the 1 071 victim friendly rooms were located. Regarding the 89 Sexual Offences Courts and the roll-out planned for additional courts, Members asked where the additional courts were to be established and what criteria would be used to determine where they were established. What was the vacancy rate of court intermediaries? A 2016 study by the University of Cape Town showed that on average 65% of cases were finalised by being struck from the role or withdrawn. Why was the number of withdrawals so high? What was driving the withdrawals?
Members asked about the Sexual Offences Register. How reliable was the Register? Had there been an outside audit? Members also asked about the national Prosecuting Authority case load. How many carry-over of 10 001 cases? Why was it such a high figure? How old were the cases and from which year did they date? The NPA had said that it had 53 731 backlog cases. How many of those cases were for sexual offences? Why were there only 12 CCTV systems available. What was the reason for not sorting out such a basic necessity? Did the Prosecuting Authority use alternative dispute resolution mechanisms for sexual offences and, if so, on what basis? How long was spent on preparing victims for court? Was there a timeframe? Where did the NPA propose finding sufficient prosecutors with experience and training to prosecute in the Sexual Offences Courts. There was a large vacancy rate, especially of specialised prosecutors, so what was the plan there?
Members asked what preventative measures were given in schools by Basic Education. If a victim went to hospital but did not report the offence were those statistics collected? What support was provided for blind and deaf women and children? Who worked in the victim-friendly rooms in the police station? Was it a qualified social worker or a volunteer? There was so much legislation and so many structures and yet they were still not making headway. What was missing? Members expressed concern about a case reported in the media where a rape offender was given a suspended sentence and another five years’ jail time. Members wanted details as they were concerned.
The Deputy Minister informed the Committee that the Criminal Law (Sexual Offences and Related Matters) Act was the responsibility of the Minister of Justice and in terms of the Act, there was an Intersectoral Committee chaired by the Director-General and an Annual Report had to be tabled in Parliament. Prevention of sexual offences was not contained in that Act and the Department of Social Development engaged with the team only in respect of implementing the Act. He pointed out that the lenient sentences for rapes of children had been reviewed and overturned. The magistrate was no longer attending to sexual offences cases and the matter was before the Magistrate’s Commission.
He stated that sexual offences was a national crisis and a national emergency in SA and globally. The causes seemed, in former mining towns, to be alcohol abuse and unemployment. The Deputy Minister pointed to a case the previous week where a man had been sentenced to two life sentences because he had raped the victim twice before killing her, so numbers did not always agree. He reminded the Committee that there was no crime called a sexual offences crime. Members were informed that the Department had hit a snag with the Sexual Offences Regulations that set minimum standards. The Regulations had been finalised after meetings with all stakeholders but the snag was that the Chief State Law Advisor found that some provisions were ultra vires and they would have to consulted upon and changed before the Regulations could be gazetted.
In the absence of the Chairperson, Adv H Mohamed (ANC) was nominated unopposed as the Acting Chairperson.
The Acting Chairperson stated that the Committee was meeting to fulfil an annual obligation which was to review Inter-departmental report: Criminal Law (Sexual Offences and Related Matters Amendment Act.
He welcomed the Deputy Minister for Justice and Constitutional Development John Jeffery and the Acting Director-General for the Department of Justice and Constitutional Development (DOJ&CD). Adv Jacob Skosana.
The Deputy Minister stated that the Inter-Departmental Report: Criminal Law was a departmental report but he was attending because of the importance of the matter. Adv Praise Kambula would present the report but the team would probably respond to questions.
Adv Skosana thanked the Committee for the opportunity to present the report. He informed Members that Adv Kambula would make the presentation. He explained that the Criminal Law (Sexual Offences and Related Matters) Act was one area which was coordinated by the DG of DoJ&CD. He chaired a team of Heads of Departments of the various Departments and entities, including the National Prosecuting Authority (NPA). In terms of the Act he was required to coordinate and ensure a collaboration amongst all the relevant stakeholders in that important work. Adv Kambula had been trying to liaise with various stakeholders to attend the meeting. Although the DGs could not attend the Portfolio Committee, he assured Members that they did participate in the coordinating structure. He was sure that all representatives had been mandated to attend. The report was the culmination of all their coordination and hard work. Adv Kambula would make the presentation and team members would assist in responding to questions.
Briefing on Inter-sectoral Report on Implementation of the Criminal Law (Sexual Offences and Related Matters) Act
Adv Praise Kambula, Chief Director: Promotion of the rights of vulnerable groups, DOJ&CD, said the Minister had received an invitation to present the report. The invite included the DoJ&CD and the NPA. They were the only stakeholders mentioned. Because the report covered the activities of nine stakeholders, she had tried to get the other stakeholders on board but it was difficult as the letter was only received on 15 November 2019. She would have loved to have all the stakeholders there. Stakeholders present included the NPA represented by Adv Lizette Afrika, Acting Deputy Director for Sexual Offences Courts; the South African Police Services (SAPS) represented by Brigadier Harri, Provincial Commander Family Violence, Child Protection and Sexual Offences Unit; the National Registrar for Sexual Offences Ms Ntombi Matjila and the Programme Manager for Sexual Offences in DoJ&CD and Legal Aid SA representatives. The Department of Social Development was in the building and would join the meeting later.
Mr Q Dyantyi (ANC) asked for the actual Annual Report. He needed a copy of the Annual Report as he did not just read the presentation. It was his practice to read the Report in full.
The Acting DG replied that the Annual Report had been tabled together with DoJ&CD Annual Report in August 2019. He was sure that copies could be found.
Mr Dyantyi asked if the Committee staff had copies of the report. If they did have it, why had they not given copies to the Members? It was not enough just to have a presentation – he had to read the full report.
The Deputy Minister agreed with Mr Dyantyi that it was important to read the Annual Report before a presentation. He explained that Annual Reports were tabled with the Speaker of Parliament at the end of September 2019. He would not say that the meeting should be called off because people had come down for the meeting and expenditure had been incurred, but in future Members should receive the Report prior to the meeting.
Adv G Breytenbach (DA) asked why Members had not received the Annual Report.
The Deputy Minister said that Members should have received the report for the presentation timeously. The Child Justice Report was tabled at the same time. He supposed that Members had not received that one but it was important to read the reports, even if there was not time for presentations. He added that the Annual Report had been nicely printed and was ideal to put on the bedside table for night-time reading.
The Acting Chairperson informed the Minister that Members had received copies of the Departmental Report as well as the Child Justice Report. He explained to Members that he was awaiting copies of the Criminal Law (Sexual Offences and Related Matters) Annual Report from the secretariat but the meeting would proceed in the meantime.
Ms W Newhoudt-Druchen (ANC) stated that she had tried to liaise with the secretariat for the Annual Report. She wanted the narrative of the day’s presentations as well as Annual Report.
The Acting Chairperson agreed that it would have been helpful to have the report. At the end of the meeting, Members would decide what to do.
Adv Kambula explained that she was having difficulty in opening the presentation on the laptop.
The Deputy Minister suggested that the meeting could use the printed copies of the presentation.
The Chairperson indicated that there were five parts to the presentation and he attempted to number each of the parts.
Adv Kambula explained that the presentation had been sent in five parts.
Mr Dyantyi suggested a five-minute break.
It was agreed to have a short break so that the presentation could be sorted out.
Following the break, the Deputy Minister handed over copies of the letters that showed that the Report had been handed to the Speakers’ Office on 30 September 2019.
Adv Kambula stated that the inter-departmental report covered nine stakeholders. Section 65(3) placed a responsibility on the Minister of DOJ&CD to table individual reports from the stakeholders as outlined by the Act. The report showed the culmination of the work by the stakeholders: DoJ&CD, Department of Basic Education, SAPS, NPA, the Department of Correctional Services (DCS), Department of Health (DoH), Department of Social Development (DSD), Legal Aid SA, and the Department of Cooperative Governance and Traditional Affairs (COGTA). The reportable performance was tabled in Parliament but she would be presenting an integrated report to the Committee.
The Constitution did not speak to the rights of the victims of crime whereas it was protective of the rights of accused persons. That was an anomaly that needed to be fixed. The Service Charter for Victims of Crime of SA addressed the rights of victims but the service charter did not have the same legal teeth as the Constitution. The Presidential Declaration against Sexual Violence was used as a working document. Sexual violence fell within the family of gender violence and femicide as many women were sexually violated before being killed. Section 65 required the DoJ&CD to put together a national framework for domestic violence that was being amended in line with the President’s statement. However, the UN had stated that SA had brilliant legislation but was failing to link paper law to the action.
A turning point was the Total Shutdown on 1 August 2018 when people took to the streets and sent a memorandum to the President of SA. At the same time, the ANC Young Women had taken to the streets and handed complaints to the President of ANC.
The complaints included:
-Poor implementation of laws and programmes.
-Little or no information to survivors,
-Long and neglected queues at service points,
-Insensitive treatment at service points, including flippant consultations,
-Delayed/ poor police investigations and repeated case postponements,
-High nolle prosequi decisions or charge withdrawals without prior consultations
-Under-resourced shelters, Thuthuzela Care Centres, sexual offences courts, etc.
-Poor referral system in the Criminal and Justice System.
-Lack of accountability/ consequence management.
SAPS crime statistics on sexual offences registered 50 108 cases in 2018 and 52 420 cases in 2019 – an increase of 4.6%. The usual factor was that the Free State was number three in the number of sexual offences cases. The Sexual Offences Court (SOC) in Welkom registered the highest number in new sexual offences matters in 2018. Most of the top ten courts that had registered the highest rate of sexual offences were already designated SOCs but other courts in the top ten of sexual offences cases tried would be upgraded to become sexual offences courts.
There was a discrepancy between SAPS statistical records and the NPA records because of the way that crimes were recorded. SAPS would record each charge but, regardless of the number of charges, a court would record a single docket for a single case. The prosecutor would determine the number of charges to be used but that was not recorded. However, what was common was the increase in the number of sexual offences recorded by both sectors. In 2018/19, 692 life sentences were handed down for sexual offences.
Adv Kambula stated that SOCs provided a large basket of victim support options throughout the entire process, including post court trauma. She presented visual representations of the private testifying room. She noted that civil society was working hand-in-hand with government departments.
The question was whether government had enough resources. Statistics showed that Government was providing support with lean human resources as there were vacancies in every sphere. However, training was ongoing. Although the numbers of people trained in 2018/19 had dropped since the previous year, the number of officials at the Department of Correctional Services trained in the prevention of sexual offences, sexual harassment and trauma awareness had increased from 293 to 603. Adv Kambula mentioned that Legal Aid had a brilliant training course.
The National Register for Sexual Offences (NRSO)
The NRSO had been established on 30/6/09 to register particulars of sex offenders convicted of sexual offences against children and mentally disabled persons. Recently a Data Verification Project had been conducted where 32 570 entries were verified, 24 912 entries were validated and 7 658 entries were re-tested before being discarded. 3 176 ‘clearance’ certificates had been issued to government applicants working with direct access to children and mentally disabled persons.
-High staff turnover
-Under-resourced support service points
-The need to strengthen coordination at the frontline level
-Inequitable services across the Criminal and Justice System
-Delayed legislation for victim support services
-Delayed systems integrated for Crime Victims Solution
-Uneven quality of reporting
-Misalignment of indicators in statistics.
The Acting Chairperson thanked Adv Kambula for her comprehensive report. She had covered a number of areas from the 250-page report. She had covered a number of areas, including performance, SOCs, blueprint compliance, infrastructure, public education, NRSO and the National Council. The points were inter-related. The Committee could zoom into statistics, infrastructure or public education. The Committee was familiar with the Bills. He asked the Committee to engage with the report although, as pointed out by Ms Newhoudt-Druchen, they had been unable to read the report beforehand. Members could ask questions on those matters.
Mr W Horn (DA) recalled that the previous day, there had been a joint Committee meeting and in the report tabled there, it was pointed out that there was a problem with DGs not attending the Inter-DG meetings. He asked for further details, including whether it was a problem and the number of meetings held and the attendance.
The Acting Chairperson asked whether he was referring to the formal structure.
Mr Horn confirmed that he was asking for information on the formal structure. Regarding the 89 SOCs and the roll-out planned for additional courts, he asked where the additional courts were to be established and what criteria would be used to determine where they were established. Was it related to higher numbers of sexual assault cases or according to population? New regulations in respect of existing courts would be implemented in the new year. What plans were in place for implementation? How many of the 89 SOCs were dedicated sexual offences courts and how many were hybrid courts?
Mr Horn asked about the vacancy rate of court intermediaries. There were 31 fewer intermediaries in 2018/19 but it was not clear if the 184 intermediaries in 2017/18 had been a full staff complement or if there had been vacancies then. Secondly, there had been a further roll-out of sexual offences courts in 2018/19 so what provisions had been made for intermediaries in those courts? There was no mention of supervision or managers of intermediaries. What was the ratio of supervisors to intermediaries? How many were courts under one intermediary manager? He wanted a sense of the effectiveness of management of intermediaries.
In response to the President’s Emergency Response Plan, Mr Horn noted that mention had been made of the review of legislation. Historically, it had been agreed that there should a be ten-year review of the Domestic Violence Act. What plans were in place? He understood that Parliament was responsible for the new legislation but he believed that Parliament should also be concerned with an assessment of current legislation and how that needed to be amended. In the presentation of the top ten courts trying sexual violence cases, Free State was identified as one of the top four provinces. That was sad for him as a Free Stater but had the Department investigated what had informed the increase in sexual offences? Free State had only 5% of the population but 13% of sexual offences. Had reporting improved or was it a behavioural problem?
Mr Horn stated that the Committee researchers had found a 2016 study by the University of Cape Town which showed that on average 65% of cases were finalised by being struck from the roll or withdrawn. Comparing the new cases against withdrawals, certain courts seemed to have about 90% withdrawals. Did the Department look into that when looking into the effectiveness of the courts?
Lastly, Mr Horn asked about the NSOR. He would like to hear from the Deputy Minister because he had said that he was aware of all the problems and there had been an indication to rework the register to include all offenders. But, how reliable was the Register? Had there been an outside audit? There were lingering issues regarding the Register.
Adv Breytenbach noted that the presentation had suggested that not all reported cases went to court, but that was undetectable. What was undetectable? What informed the labelling of a case as “undetectable”? How many cases were undetectable? What were the typical reasons for deciding not to take a case to court? Adv Kambula had said that witnesses disappeared. How did they disappear and why could they not be traced? Why would a person lose interest in a case?
Adv Breytenbach asked about the carry-over of 10 001 cases. Why was it such a high figure? How old were the cases and from which year did they date? She noted 7 615 new cases. How were they going to deal with the cases when new cases almost equalled the number of carried-over cases? How were they going to be finalised? 8 395 cases were disposed of. What did that mean? How many of those were old cases and how many were backlog cases? How many cases were withdrawn and why were they withdrawn? The NPA said that it had 53 731 backlog cases. How many of those cases were for sexual offences? There were only 12 CCTV systems. What was the reason for not sorting out such a basic necessity?
Adv Breytenbach noted that the NRSO had many challenges. What were the main challenges? How did the Department plan to address them, bearing in mind that in September 2019, President Ramaphosa had promised to expand the list to include all men found guilty of sexual offences? How was she going to deal with that extra amount? Did the NPA use alternative dispute resolution mechanisms for sexual offences and, if so, on what basis?
Adv Breytenbach asked where the 1 071 victim friendly rooms were. In what areas and in which police stations? Did the police have sufficient personnel to utilise the rooms appropriately? Where did the NPA propose finding sufficient prosecutors with experience and training to prosecute in the SOCs. There was a large vacancy rate, especially of specialised prosecutors, so what was the plan there?
Ms Newhoudt-Druchen noted that the number of pages on notes did not match the slides so she would have to take her time in finding the questions. She noted that victim support services provided information services after the abuse had happened, but what preventative measures were given in schools by the Department of Basic Education, etc? She would like to see that. There were various statistics but she did not see any statistics from the Department of Health. Sometimes rape or sexual offences occurred and the victim went to the hospital but did not report the offence, so those statistics were also very important. Were those statistics collected?
Ms Newhoudt-Druchen noted that support was given to the victim and the family of the victim, but what about the perpetrators? Was education given to them when they had been sentenced and were in prison? Did “disposed” mean withdrawal or what? Was the perpetrator sentenced or did it mean that the case was withdrawn? Was there a difference? Generally, throughout the presentation, she saw that there was reference to mentally disabled support but not to deaf children. Deaf children could not always express themselves or the sign language interpreter was not available or was an adult sign language interpreter and they could not understand the interpreter because signing was different. What support was provided? She was asking the question because judges and magistrates did not allow DEAFSA to bring their social workers or their social auxiliary workers to provide relay interpreting when a child or deaf adult who had been raped did not understand the court interpreter. She noted that there was a support programme to accompany the victim but courts did not want to allow signing assistance to the victim. What was the background to speaking only of mentally disabled support? What about blind victims?
Ms Newhoudt-Druchen noted that the slides referred to government structures on sexual offences was divided into two groups, the Justice Cluster Development Committee and the Civil Society Technical Intersectoral Committee, but there did not seem to be a link between the two groups. Civil societies were only involved in the technical structure so how did everyone know what was happening on the ground so that they all had the same understanding? Why was there no link between the two groups? Who worked in the victim-friendly rooms in the police station? Was it a qualified social worker or a volunteer? Was it a survivor of sexual abuse? Lastly who was targeted by the public education programmes? Who did the education in the community?
Mr Dyantyi felt obliged to make the point that the presenters were not properly prepared which meant that the meeting had started late and the presentation was the longest that the Committee had received which left insufficient time for the engagement. It had become an information session instead of an engagement session because they did not have the documents. It should not happen like that in the future as the Committee was very finicky about those things.
Mr Dyantyi stated that if that was an Annual Report, he had the sense that they were not winning the war. Adv Kambula had not presented any evidence of areas where they were succeeding. There were six pieces of legislation, so it was clear that more legislation was not what was required. Something else was needed. There was so much legislation and so many structures and yet they were still not making headway. What was missing? He referred to the top ten courts conducting sexual offence cases and requested clarity of language. What was “disposed of”? he had thought that it meant finalised. Later he discovered that it meant withdrawal. If one went to the slide Welkom SOC, there were 233 new cases, 155 cases withdrawn and the last column showed 285 cases outstanding. If one added the new cases and the withdrawals (388) and subtracted that from the withdrawals, it meant that133 cases had been heard in a year. That was the nett work of what had been done. He did not see success. In Paarl in the Western Cape, example, there were 116 new cases, 88 withdrawals and a backlog of 237 cases, so they could not say that they had achieved anything.
Secondly, Mr Dyantyi noted that there was incomplete information in the Annual Report. For example, NPA had not provided numbers. NPA was not an optional partner and was at the meeting, yet DOJ&CD had been unable to get details from them? What was going on there? Why was the high number of withdrawals so high? What was driving the withdrawing the withdrawals? Was it the slow pace of the work in bringing the cases to courts? Were they withdrawals of witnesses or victims as a result of intimidation? They seemed to be a sore thumb that stood out.
Regarding the NRSO, he asked when it was published? Why had 7 358 entries been discarded? What did that mean and why had they been discarded? Everything in the report had been increasing, except correctional services that had reduced its number of centres by eight. The increase in numbers showed that they were losing the war. It was not a beautiful picture with the numbers going up. The previous day, he had attended the joint meeting but it had collapsed without presentations. He had gone there with his eye on the Justice sector and he had wanted to raise various issues. The quality of some of the indicators were not helpful from the perspective of the victim. One indicator spoke about the number of courts established but the issue should be not about quantity, but about quality and what those courts were able to do. In government, generally, indicators were about the numbers and were no qualitative measures. Even though there was a new court in Khayelitsha, it did not help as one was never assisted there. It was not working. It did not matter whether it was established or not; it was not working.
Mr Dyantyi stated that he was fully aware that what Adv Kambula was doing was very important work. He did not know if all of the stakeholders took the work as seriously as they should. It was no longer departmental work; it was Presidential work. In September, the President had addressed Parliament on all of those issues. He was interested in how the Presidential Plan and all the issues that had arisen and how that would inform the Annual Performance Plan. He was interested in what they would have to do going forward.
Ms N Maseko-Jele (ANC) noted that her colleagues had covered her but she wanted to find out more. She noted that the DoJ&CD was leading the report. From the NPA, she noted that the Acting Head of SOC in Western Cape had been asked to stand in for the National Director. She did not want to see acting officials doing the job; she wanted to see people who were dedicated. She asked the Deputy Minister if he could suggest what could be done about the matter.
Ms Maseko-Jele noted that only the presenter had been present at the previous day’s joint meeting. She was happy that Adv Kambula had made such a long presentation to the Committee as the information she had shared would help the Members to understand what the problems were and how the Committee could assist and play its oversight role. Adv Kambula could tell her if she was wrong but as far as she understood things, there were a number of departments involved in the task but DoJ&CD was the leading Department. That meant that Justice was responsible for collapsing the joint Committee meeting the previous day. She had been expecting a consolidated repot such as the one presented that day that included information on other stakeholders. After the meeting the previous day, she had asked the Chairperson how all the departments could have presented as she had not known that Justice was leading. In short, DoJ&CD should have engaged the Women’s Ministry because the Women’s Ministry was the custodian of that project.
The Acting Chairperson interjected and informed Ms Maseko-Jele that the previous day’s presentation was held by the Interim Council and led by Prof Olive Shisana. All of the Departments sat on the Council and Justice was just one of the Departments.
Ms Maseko-Jele said that she needed clarity so that the Committee Members could find out who was not doing his or her job and nip that person. If they did not know who was doing what, they would just keep on accusing people. Members had to know where the issues were. She had given the meeting her little knowledge of what had happened the previous day so perhaps the Deputy Minister could tell her who the stakeholders were.
Ms Maseko-Jele noted that Mr Horn had asked about the challenges of people not attending meetings. She wanted to know about that. Was it true that people did not take the matters seriously? She wanted names. It seemed that DGs were in charge so she requested clarity on that point. In the slide on crime statistics, the presenter had mentioned the disjuncture in reporting statistics between DOJ&CD and SAPS when it came to reporting crime, for example four charges but one docket. They were looking of ways of synergising. How was that going to be resolved?
Regarding the governance structure, she heard that it was the Minister who was supposed to report to Parliament, so was it the Minister who should have brief the stakeholders the previous day? She was confused about where DOJ&CD linked with the Women’s Ministry and the Department of Women. The issue of silos was the reason why the problem had not been resolved for decades. She wanted to see who was in a corner and not sharing with others.
Ms Maseko-Jele asked how effective the victim-friendly rooms were and whether they really helped the victims. There were so many reported problems about reporting sexual offences to SAPS. Did it work? How well were the services points resourced? Did the Thuthuzela service centres work optimally? The health facilities were involved. Government had its own internal stakeholders. Why were others brought in when the stakeholders inside government had not mastered the situation? She asked the Chairperson to facilitate an opportunity for Members to engage with Gender Health and for the Committee Researcher to engage.
Ms Maseko-Jele noted that in slide 9, all the forms of victim support were outlined but how long was spent on preparing victims for court? Was there a timeframe? Sometimes it seemed to take a long time and a child was in the system for years. How long was it before a case was finished? How could the Committee know when to say that a case should have been concluded?
Finally, she noted that Adv Kambula had said that courts were serious about sentences but in the media it did not seem that magistrates were serious. How did one give a rape offender a suspended sentence or five years’ jail time? She did not want that. She was making that clear, as a woman, that if she were raped, she would not be happy for a rapist to get five years, so she wanted that clarified. She wanted to know about what she had read about in the media.
Adv Breytenbach asked for breakdown of the budget and where the reprioritisation came from and how it tied into the steering committee?
The Acting Chairperson asked about the NRSO and how it worked. How did one access a clearance certificate? He asked for further information on the outreach as part of the 16 days of activism, and also about the programme planned for the next six months in terms of the Presidential Response.
Response by the Deputy Minister
The Deputy Minister responded to Ms Maseko-Jele explaining that the article in the Sunday Times had reported on one magistrate in the Umlazi Regional Magistrate’s Court that had been giving sentences for rapes of children. Four of her sentences were reviewed and overturned so the media was actually recycling the original cases. One of the men re-sentenced was a Mr Dudula. The accused had been given a non-custodial sentence and had been re-sentenced to 20 years in jail. The magistrate was no longer attending to sexual offences cases and the matter was before the Magistrate’s Commission. It was not right but it was being corrected.
The Criminal Law (Sexual Offences and Related Matters) Act was the responsibility of the Minister of Justice and in terms of the Act, there was the Intersectoral Committee chaired by the DG of DOJ&CD and annual reports had to be tabled in Parliament. There were similar provisions in the Child Justice Act. What the team was doing that day was reporting on the implementation of the Criminal Law (Sexual Offences and Related Matters) Act, not sexual offences more broadly, but the implementation of the Act which included the crimes, the investigations, going to court and the sentencing. Prevention was not in that Act and the Department of Social Development engaged with the team only in respect of implementing the Act and not in relation to broad gender-based violence issues. There was no civil society involvement. It was only the departments responsible for implementation.
There was a Steering Committee chaired by the President’s Advisor, Dr Shisana. Adv Kambula was a member of the Steering Committee. The Deputy Minister stated that the Department was preparing legislation for the Intersectoral Committee for Women. The Sexual Offences Act implementation committee would also move to the Steering Committee once legislation had been changed.
Sexual offences was a national crisis and a national emergency in SA and globally. The causes seemed, in former mining towns, to be alcohol abuse and unemployment but that was not the focus of the Act, although he admitted that the broader issues were a problem. There had been a workshop on the implementation of the Criminal Law (Sexual Offences and Related Matters) Act at the end 2017 to see where the Act could be improved and all the role players had been involved, including civil society organisations. He promised to see if he could find a report on the workshop. It had been supported by Dutch government. He had spoken to a Dutch woman, the Rapporteur on Sexual Offences, who had said that in the Netherlands, an advanced, first world, well-resourced country, they obtained an 8% conviction rate for sexual offences. In SA, the conviction rate was 5% and the Act was intended to improve that conviction rate. The conviction of those guilty of sexual offences was a problem globally, but SA was trying.
The Deputy Minister pointed to the case of Luyanda Botha who had been sentenced the previous week to two life sentences because he had raped Uyinene Mrwetyana twice but it was one victim and one rapist, so numbers did not always agree.
The Intersectoral Committee should have met twice a year but there was a problem with attendance. One of the issues that he had raised quite sharply was why the intersectoral Committee had not picked up the problem with the shortage of rape kits. If they had been looking at the implementation of the Act, they should have picked that up.
The NSRO was managed by Ms Matjila, the Registrar. The provision in the Bill had come from the parliamentary process and not from the Department. The provision was that if one was convicted of sexual offences against a minor or a person with mental disabilities, one’s name went on the Sexual Offences Register. According to the law, employers of people working with children or people with mental disabilities, could access the Register. However, if one was employing people to work in a university’s women’s residence, none of the employees could be vetted because they would be dealing with adults. One provision was that one could get off the Register if the police was not looking at the person for any other sexual offence. What he wanted, and the Department would be bringing legislation to that effect in the new year, was that a person would be put on the Register if convicted of any sexual offence. The question would then be about who got access to the Register. Should it be made public? One had to careful as two people were killed every day in SA in community retribution. If a rape occurred in an area and a person was on the Register, even if he were not guilty in that instance, there was a chance that he would be killed.
The Deputy Minister reminded the Committee that there was no crime called a sexual offences crime. For example, assault was not necessarily noted as a gender-based offence and likewise arson was not characterised as gender-based violence, even if it was. He had asked the NPA and SAPS if there was a way that such crimes against women could be tagged as gender-based violence and they would look into that. Parliament could always introduce legislation but once it was implemented, it did not always work in the way that Parliament had assumed it would. It was better to wait for the Department to do it.
He added that the Register worked in terms of the current Act. The Domestic Violence and the Sexual Offenders’ Act was being reviewed but the problem lay more with the implementation of legislation, rather than new legislation, as Mr Dyantyi had said. There were areas that could be tightened, but there was no magic switch to end gender-based violence and sexual offences.
The Deputy Minister informed the Committee that, although they would not be pleased, he had to inform them that the Department had hit a snag with the Sexual Offences Regulations that set minimum standards. The Regulations had been finalised after meetings with many stakeholders including the NPA, the magistrates and even the Chief Justice had agreed to the Regulations, but the snag was that the Chief State Law Advisor said that some provisions were ultra vires. The Department would bring all the role players together again, with the Chief State Law Advisor, to discuss the matter. It related to things such as a court officials having to report to the Regional Court President when equipment was not working. The Regional Court Magistrates had wanted it that way as they did not want problems to persist. There were other aspects that were also ultra vires. They had to be attended to as the Minister could not regulate something that was known to be ultra vires.
He suggested that answers could come from the specific representatives but, in addition, the Department could supply some written answers.
Adv Kambula stated that she would submit written responses.
The Chairperson requested that she respond to as many questions as possible in the meeting as the House was only sitting at 15:00 so the Committee could sit longer.
Responses by NPA
Adv Afrika indicated that she would like to respond to the request for statistics in writing because she would have to contextualise the statistics as the way in which the NPA kept statistics did not always align to the SAPS statistics. That was a challenge highlighted by Adv Kambula.
In respect of acting positions, Adv Afrika assured Ms Maseko-Jele that NPA officials were placed in positions where they had experience of the work to be done. Just because people were acting, it did not mean that they did not have the experience to deal with the issues that arose. She understood that acting positions could be problematic but people placed in acting positions were able to do the work and they were dedicated and committed.
A number of matters reported in police stations did not get to court. In some cases, the offender could not be identified so the matter never went any further. Many women did not want to report a matter but really wanted to access the services and the medical care and accompanying medication. The services encouraged people to report but they could not be forced to make a report. It was very difficult to give firm figures but it could be as much as 30% of the matters that did not go to court.
Regarding the ADRM (alternative dispute resolution mechanisms), the NPA had a particular mechanism for dealing alternate resolutions but the process was not in place for sexual offences because there had to be engagement with the complainant. Looking at victim of sexual offence, everyone spoke of a victim-centred approach. If the victim did not want to proceed, they could approach Legal Aid or a private attorney and sometimes the accused pleaded guilty. If the NPA was still not successful in getting a result, rather than just withdrawing and leaving the case unresolved, the ADRM was used, but it was not encouraged and it was only as a last resort. It involved the prosecutor, the investigating officer and a relevant NGO. The alternative dispute mechanisms were not reported per sector.
Adv Afrika said that the NPA was able to give numbers of all vacancies in the prosecution but she did not have the separate numbers of vacancies for sexual offences specialists. She apologised for not having provided the numbers in time for the presentation. However, the NPA was currently recruiting at various levels. Specialisation was a progression. Staff were first employed at the regional court. Management would look for those who had specialisation experience.
She informed the Deputy Minister that the NPA was currently looking at all appeals and reviews to determine if there were any anomalies in sentencing.
The Acting Chairperson informed Adv Afrika that the Committee wanted the statistics for the special offences court vacancies and so would wait for those figures.
Response by SAPS
Brigadier Harri clarified that “disposed”, according to SAPS, meant a document going into the archives. She requested to send a report regarding the numbers so that she could supply information from across the country and not just the Western Cape. Victim friendly facilities were available at 1071 police stations country-wide. Were the facilities working? Brigadier Harri stated that she could only speak for the Western Cape where there were 151 facilities in stations but whether it was working or not, depended on the frontline services at the community service centres (CSC) and whether they took the people through to the facilities or not. The national office should answer that question as to whether it was utilised nationally. Likewise, the questions by Adv Breytenbach about cases withdrawn and undetected would be presented in a written report.
Brigadier Harri responded to Ms Newhoudt-Druchen’s question about preventative measures. In the SAPS mandate, it was part of an officer’s duties to do awareness in communities such as at schools, churches, radio interviews, etc and that had to be reported quarterly. She added that there were constant efforts to ensure that those members in the frontline services were educated on how to deal with victims of crime.
Adv Kambula indicated that she would also send the “victim friendly rules”.
Response by the Registrar of the NRSO
Ms Matjila assured Mr Horn that the register was valid and complete. The register had previously been found to be not complete when the Auditor-General had audited the register but there was now a process to check the register. The data clean-up project had cleaned up the register and in 2018/19, Auditor-General had found all information to be valid, accurate and complete.
The Deputy Minister had responded to the question by Mr Dyantyi of when the register would be published. Regarding the 7 658 entries that had been discarded, she assured Members that the cases were not discarded in the register, but her team was doing a data verification of what had not been included by contacting the courts and checking against convictions.
Ms Matjila stated that her team would face a major challenge when changes to the Act were implemented and she would need more resources to respond timeously. Should one wish to access a clearance certificate, one would find two certificate applications on the website: J738 and J731 which were for applying on one’s own behalf and on behalf of someone else.
Mr Horn asked for the name of the Registrar.
The Registrar confirmed that she was Ntombi Matjila
The Chairperson assured those present that the Committee’s concern about the acting positions was not about the people in the positions, but the long period of time that people had to act in positions. The remainder of the questions could be submitted in writing.
Ms Maseko-Jele asked about the Constitutional Review Committee. Adv Kambula had referred to some issues that were not included in the Constitution. She asked that Adv Kambula identify the issues and the Committee could discuss it with the Constitutional Review Committee because that matter did not belong in the Justice and Correctional Services Committee. Regarding acting positions, her point was that the Members wanted people who were purely dedicated to the positions. Even Mr Dyantyi had mentioned that. She knew the requirements meant that people were overloaded because when “acting”, they still had to do their own jobs. She was not undermining people who were acting but it had to be taken with the seriousness that the Committee expected.
The Acting Chairperson apologised for the late decision to hold the meeting but there had been a gap in the Committee Programme and it had wanted to have the meeting before the 16 days of Activism began.
The Deputy Minister stated that the Acting Chairperson had covered issue of short notice but pointed out that it was difficult to get people at the last moment. The main point that he wanted to make was that the challenge was regarding implementation. The report showed that everything that was meant to be in courts and police stations was there but the question was whether it was happening. MPs should visit courts and police stations in their constituencies, but they had to be aware that a SOC might be sitting in camera and they could not barge in.
The Acting Chairperson thanked the Deputy Minister, Members and the presenters.
The meeting was adjourned.
- Inter-sectoral Report on Implementation of Criminal Law (Sexual Offences and Related Matters) Amendment Act: Department briefing, with Deputy Minister 2
- Inter-sectoral Report on Implementation of Criminal Law (Sexual Offences and Related Matters) Amendment Act: Department briefing, with Deputy Minister 1
- Inter-departmental Report: Criminal Law Amendment Act (2008) Part 5
- Inter-departmental Report: Criminal Law Amendment Act (2008) Part 4
- Inter-departmental Report: Criminal Law Amendment Act (2008) Part 3
- Inter-departmental Report: Criminal Law Amendment Act (2008) Part 2
- Inter-departmental Report: Criminal Law Amendment Act (2008) Part 1
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