Prescription in Civil and Criminal Matters (Sexual Offences) Amendment Bill: public hearings; Judges and Magistrates Salaries & Disciplinary Reports: Committee Reports

Meeting report

The Chairperson announced that each speaker would be given 15 minutes to present their submission. He requested that everybody adhere to the restriction.

Advocate H Mohamed (ANC) registered an apology on behalf of Ms W Newhoudt-Druchen (ANC) who was
not feeling well.

Prescription in Civil and Criminal Matters (Sexual Offences) Amendment Bill and public hearings

The purpose of the Amendment Bill was to amend the Prescription Act, 1969, so as to extend the list of sexual offences; to amend the Criminal Procedure Act, 1977, so as to extend the list of sexual offences in respect of which a prosecution may be instituted after a period of 20 years has lapsed since the date of the alleged commission of the sexual offence; and to provide for matters connected therewith.

Written Submissions

Helen Suzman Foundation (HSF)
Below is a summary of the important points from the written submission of the foundation:
The HSF recognised the foresight of the Committee to amend the law on prescription of civil claims arising from sexual offences and the amendment on prescription for the institution of criminal prosecution as per the court order. Section 18 of the Criminal Procedure Act (CPA) placed a bar of 20 years on the right to institute prosecution for sexual offences other than rape, compelled rape, human trafficking and the use of persons who lacked legal capacity for pornographic purposes. The Constitutional Court in the Levenstein case found that there was no rational basis for the distinction among the different sexual offences. As a result, the 20-year prescription period was held to be unconstitutional. The HSF commended the Committee for amending Section 12 (4) of the Prescription Act by aligning it with the court ordered amendment of the CPA. The removal of prescription in criminal and civil matters, pertaining to all alleged sexual offences, removed the distinction about sexual offences being graver than other offences. Victims of any sexual offence faced the same obstacles in reporting. The amendment to Sections 12(4)(ii) and 13 of the Prescription Act, provided for persons with mental or intellectual disability, disorder or incapacity, in order to account for victims who may be in a position to institute proceedings but may suffer relapses that prevented them doing so. The Bill explained this amendment. However, this particular intention was not made clear or articulated sufficiently either in the amendment or the Bill. The concern was that without the memorandum, the original intention by the Committee, and in due course by Parliament, would be lost with time.

Letter from a citizen (Mr M G Buthelezi)
In his letter, Mr Buthelezi proposed severe punishment for perpetrators of sexual offences. He suggested the death penalty if the victim was younger than 21 years old and castration if the victim was older than 21 years old. In his opinion, the punishment would serve as a deterrent if people (including prisoners) were informed about the new law.

Oral Submissions, Questions and Responses

Embrace Dignity (ED)
Adv Phumla Duane-Alpman, Executive Director Designate of Embrace Dignity, was accompanied by Mr Sqhelo Tom, Chief Operations Officer. The main concern regarding Section 12(4) (a) (i), was that the Bill may have unintended consequences for victims and survivors of prostitution in terms of the wording. It encompassed that “any sexual offence in terms of the common law” which implied that persons falling within the ambit of Section 20(1A) (a) of the Sexual Offences Act 23 of 1957 would not be affected by prescription. Sellers of sex were not there by choice and should allow to be diverted to exit the system and not be prosecuted. In light of this, the state would have the right to institute a civil claim as an aggrieved party and it would extend its focus on women who already exited the system. The focus should be shifted to the buyers of sex, pimps, property and brothel owners who encouraged this practice. In terms of Section 12(4) (a) (ii), she acknowledged that it included certain offences from the Prevention and Combating of Trafficking in Persons Act but noted some omissions in the Prescription Bill. The organisation submitted that Sections 6, (8) (1) and Section 23 must also be included in the Prescription Bill to reflect the seriousness of the offences.

Commission for Gender Equality (CGE)
Ms Tamara Mathebula, Chairperson of CGE, said that the organisation would make recommendations regarding any legislation that would promote Gender Equality.

Ms Marissa van Niekerk, Director: Legal Services, CGE, proceeded with the submission and said that the organisation welcomed the amendments and fully supported the amendment of Section 18. In terms of the Levenstein Constitutional Court Order which gave Parliament until 13 June 2020 to change the law, CGE offered their support to the Committee to meet the deadline. Regarding the declaration of invalidity, which was effective before 27 April 1994, CGE was of the opinion that it did not mean that victims from before 27 April 1994 did not benefit from the order as that would be an incorrect interpretation based on the principle of legality in terms of Section 35 of the Constitution. The Bill presented another opportunity to prevent another barrier for survivors of sexual abuse. CGE submitted that the proposed amendments did not go far enough as survivors would have to wait for the courts to interpret the amendments over time. She said that Gender Based Violence (GBV) was at a crisis point. Civil law recognised barriers in reporting which meant that victims could not institute civil action. Victims were penalised and not the perpetrators. In terms of the reasoning of the Levenstein case, CGE submitted the removal of prescription insofar as it applied to debts arising from sexual offences. The Constitutional Court in the Levenstein judgment held that the evidence revealed the problems that women and children faced. Paragraph 56 of the judgment specifically referred to the systemic exploitation of victims that depended on secrecy, fear and shame. Victims feared the responses of those who had authority over them in the community and in their families. Personal circumstances of survivors may change depending of the level of maturity and the ability to process trauma. The finding of the Constitutional Court highlighted the reluctance of victims to approach the criminal justice system for relief. It was important to remove the barriers to alternative avenues such as medical and psychological treatment. In terms of the declaration that emanated from the Presidential Summit, which followed the country-wide protest against GBV in August 2018, existing laws would be reviewed to ensure that it was more victim-centred and to address legislative gaps without delay. CGE supported the amendment of Section 18 and submitted that civil law should be relaxed in terms of claims within the three-year subscription period.

Lawyers for Human Rights (LHR)
Ms Sanja Bornman, Attorney: managing the Gender Equality Programme for LHR, said that Adv Anél du Toit would explain the criminal aspects of the law as she represented the organisation in the Levenstein matter in both the High and Constitutional Courts.

Adv du Toit referred to the Levenstein case mentioned earlier in the Embrace Dignity submission, in which Judge Cameron asked whether the lifting of prescription could not be used as an instrument to discriminate against groups such as gay men because of the common law crime element.  She said that the court did consider it but kept the order as it was. The argument in court was that there were enough levers in the National Prosecuting Authority (NPA) system and enough protection for the wording to be as wide as it was. Certain barriers within the criminal justice system had the effect of a few cases making it to the courts. She explained that the offences in the Frankel matter occurred between 1970 and 1989. In terms of how the Principle of Legality operated, he could now be prosecuted in terms of new legislation, but he could only be prosecuted in terms of the law as it was applicable at the time. If his actions did not fall within the new definition of rape, he could not be charged with rape but with sexual assault. The punishment would not be in terms of minimum sentencing legislation as it was not in place. These factors must be considered in deciding whether to proceed with the case. In terms of Section 179 of the Constitution, the discretion was in the hands of the NPA to prosecute if there was sufficient evidence and a reasonable prospect of a successful conviction. Based on this Prosecutorial Directive, the NPA, in exercising this discretion would say that in many cases there was not enough evidence to pass that standard. That is why it was important to not unnecessarily limit access to justice in the civil realm.  By way of an example, Advocate du Toit explained the principle of “not in the interest of justice’. If she had been the defence council representing a person who committed a crime in 1978, she would make direct representation to the NPA for the following reasons: 1) there was not enough evidence and 2) it would not be in the interest of justice. These were very strong barriers to criminal prosecution that existed in the criminal justice system.

On civil law prescription, Ms Bornman said that LHR fully supported the amendment of the Bill to bring the Act in line with the judgment and the court order in the Levenstein matter. She explained that civil claims normally prescribed within three years. The period of prescription becomes effective when survivors reached the age of maturity at 18 or became aware of debt that was due. The amendments would mean that any survivor, who would approach the court, would have to proof the inability to institute proceedings or provide evidence of being under curatorship or being prevented from interfering in the running of the three-year prescription. If survivors were to approach a court more than three years after the offence, and they could not prove any of these exceptions, the case would be prescribed and they would be barred from remedies. LHR was therefore unable to support the proposed amendments for the following reason: there was no difference in the effect for survivors of a sexual offence who seek access to a criminal court versus a civil court. It would not be justifiable to distinguish between survivors as they all had justifiable reasons for delay in instituting a claim whether in a civil or criminal court. A very important finding in the Levenstein judgment was that there should be no hierarchy in sexual offences. The proposed amendments did not sufficiently remover barriers but they created more barriers to entry for the poorest and marginalised sections of society. The requirement of reports and experts to prove exceptions, created a significant barrier, due to the costs involved. Mental incapacity already had limited meanings in existing law, meaning that courts would have to interpret it over time. Many survivors might not be willing to take this chance. This introduced further barriers.

The Chairperson asked what the suggestion was from LHR in this regard.

Ms Bornman responded that the last reason why LHR could not support the amendments was that there was clear commitment from government to review laws, strengthen mechanisms and to open up avenues for all survivors in both the civil and criminal spheres.  However, LHR felt that it was an appropriate time to make laws more victim centred. LHR proposed that it was in the interest of justice and the constitutional rights of all sexual offence survivors to entirely scrap civil law prescription of all debts and claims arising from sexual offences. The proposal was supported by the recent jurisprudence in the Levenstein judgment as well as several other recent judgments in civil law prescription.

Adv du Toit explained the matter of the wording of “unintended consequences”. She said that expert evidence became a game for the rich. She referred to a recent case where a woman who had killed her husband, went to jail because she could not afford the services of an expert. Unintended consequences created onus which required money. According to her, there would not be an onslaught in the courts as there were still many barriers in criminal law. Placing a barrier of three years was irrational.

Discussion
Adv H Mohamed (ANC) referred to the limited meanings in law for incapacity and asked whether it would help if it was defined in regulations and the act. He asked whether no prescription would affect any form of quantum or damage particularly for pre-1994 cases. He recognised the point about what would constitute “in the public interest” and said it depended on the test of beyond a reasonable doubt. It would often mean real evidence of medical and psychological reports. Would that have an effect if it was open-ended with no limits? If there was a prescribed term, what would that be?

Adv G Breytenbach (DA) said that barriers to prosecution for sexual offences also applied to all offences. She did not agree that it should be removed and believed that it was there to protect. She referred to it as hoops that victims must jump through which was no different from other crimes. There should be standards. In her considerable experience, guilty people get convicted and innocent people go free. Expert evidence, like forensic evidence, must be paid for. She asked what the suggestion was if no payment was to be made. The courts could not come to a conclusion that was not based on expert evidence. She did not agree with the submission about the Legality Principle. She had never considered the fact that she would have to prosecute under an Act that was older or a sentence that was lighter as a reason not to prosecute. What needed to be considered was sufficient evidence and the traumatic impact of the crime on a victim. The younger the victim, the more trauma. Prosecutors did not make decisions based on frivolous reasons. She was sceptical about the removal of barriers. She did not want to be insensitive but indicated that some of the cases reported as rape were spurious and had more of a financial slant than a sexual offence. Removing the barriers would encourage the abuse of the system.

Adv du Toit responded that the three-year period would not necessarily be a factor to prevent someone from instituting a spurious claim. In terms of legality as a consideration, the prosecution would have to consider and explain to the complainant what putting a victim through the reality of a sexual offence criminal prosecution for possible sentencing was compared to what it was in 1974. The problem with the amendments regarding the issue of money and onus was that it made it exclusive for people with money. The problem with the definition of incapacity was with the interpretation in terms of civil and criminal law. She said that the NPA Directive stated that there should be sufficient evidence and a reasonable prospect of eventual conviction.

Adv Breytenbach requested that the Prosecutorial Directive be sent to her.

Adv du Toit said that LHR argued in the Constitutional Court that barriers must be there. She said that prescription was not needed because of the barriers.

Ms Bornman expanded on the issue of incapacity and said that it might not go far enough. It required some time for interpretation which might take time and given the limitation of time, it would not be in keeping with the strategy of urgency.

Adv du Toit replied that the quantum for non-prescription might be assessed based on the facts in each case. Societal damage in sexual offences would see jurisprudence in the coming years in terms of a listing of comparable cases to see what a reasonable quantum was. The court would conclude on what a reasonable quantum would be in a specific situation.

Women’s Legal Centre (WLC)
Adv Bronwyn Pithey said that the WLC advocated for the rights of women through strategic litigation and advocacy. Their submission would cover 1) retrospectivity in relation to criminal and civil prescriptions and 2) the time bar limitation that currently existed for civil claims. The WLC welcomed the Bill that lifted criminal and civil prescription for all sexual offences. The WLC also involved in the Levenstein matter in the High and Constitutional Courts and was invested in the declaration of invalidity in terms of Section 18. She wished that the WLC was wrong in their interpretation of the current section regarding retrospectivity but they were open to being persuaded. The amendment of the Bill would mean that the lift would go back indefinitely but she suspected that the effects of the Bill in its current form would still have limits on prosecution and civil prescription legislation. The right of prosecution rested with the NPA. Before the amendment of Section 18, the right was limited to 20 years for certain sexual offences. The default position of retrospectivity was very clear as per the Constitutional Court when it said that when something was unconstitutional, it was invalid from the date of the enactment or the date of the final constitution. The Constitutional Court in the Levenstein judgment added a few extra years when it said that this piece of legislation came into effect on 27 April 1994. This meant that as at 27 April 1994, Section 18 became invalid. The NPA was not restricted to prosecute offences that occurred 20 years before. On 26 April 1994, Section 18 was still in effect and was not unconstitutional. Offences committed before 26 April 1974 could not be prosecuted in terms of the 20-year bar. This was of concern to the WLC. The Bill in its current form meant that the NPA would not be able to prosecute in the Levenstein case as the offence was committed in 1970 and was treated as indecent assault and not rape. The WLC suggested that it would be constitutional for the legislature to accommodate this by reviving the right to prosecute matters of this nature pre-1974 and request that the Committee asked the department to review the Bill and leave the door open for the NPA to have the option to consider prosecution. The current Section 12(4) and previous Section 12 (3) had the exception of three years for sexual offences. Prescription did not run against victims that were unable to act. The new Bill changed the wording. The WLC was of the opinion that the legislature lifted the limit to civil prosecution.  Prescription was a limitation in our Constitution as it undermined the Constitutional Rights in terms of exclusion if a claim was not instituted within three years. There was acknowledgment from the Court that government had legitimate challenges but the Act was never constitutionally challenged. The WLC believed it was ripe to be challenged. The class of person in sexual offence cases was so peculiar to other matters that it needed to be reconsidered. Section 12 should therefore be amended to reflect that prescription shall not commence to run in respect of a debt based on the commission of a sexual offence. The WLC was considering challenging a matter involving prescription in the Constitutional Court and hoped the court would consider the possibility of lifting the prescription.

Congress of South African Trade Unions (COSATU)
Mr Tony Ehrenreich registered an apology on behalf of Mr Matthew Parks who prepared the submission on behalf of COSATU and proceeded to read the submission into the record. Below is a summary of the important points from the written submission:
COSATU was alarmed at the length of time it took Parliament to process the Amendment Bill and was concerned that Parliament would fail to meet the deadline, which was due within the next three months. The federation supported the Bill and its enactment but believed that there were several critical and unconstitutional flaws that must be urgently addressed before the Bill was passed. The Bill provided for the commencement of prescription for cases from 27 April 1994. The effect of imposing this date was in itself a form of prescription as it allowed for prescription of sexual offences that occurred before 27 April 1974. The federation regarded this as unconstitutional, discriminatory and a cruel form of victimisation. COSATU made the following proposals: 1) Removal of the date of 27 April 1994 and an amendment to remove any form of prescription referred to in the Bill. 2) The strengthening of the Bill to provide for the automatic denial of bail to persons accused of sexual offences. 3) A separate Bill or amendments to the Sexual Offences Bill to prohibit any cultural practice, such as Ukuthwala, that allowed for the kidnapping of women and minors, subsequent forced marriages and related sexual offences that may be committed. COSATU hoped that its submission and proposals would assist the Committee in ensuring the speedy passing of the Bill.

Discussion
Mr X Nqola (ANC) in responding to the COSATU submission said that the tone and structure of proposals were the same as the last time. He said the Committee took responsibility and confirmed their commitment to constitutional court dates and were still within the time to deal with the order of the Bill.

Adv Breytenbach enquired whether the suggestion was that the Bill should remove the option of bail for sexual offences. She indicated that Mr Ehrenreich added the rider of “in certain circumstance” and asked what the riders were. The purpose of bail was to ensure attendance in court; it was not a punitive matter. She asked what the motivation and justification would be for removing bail in a blanket fashion. She had difficulty with the submission.

Adv Mohamed said that the lifting of bail would not be supported constitutionally and asked under which conditions COSATU would not be in favour of bail.

Mr Ehrenreich responded that COSATU wanted to make sure that the Bill was passed by the deadline set by the Constitutional Court. The experience in the past led to concerns about the delays. He undertook to make a further written submission to the Committee on the issue of “certain circumstances” in respect of bail.
The submission would outline areas of concern or corrections of areas that might not be in line with the constitution.

The Chairperson announced the end of the hearing and said that the Committee would respond to the public hearings by the time the House rises on the 18th of March 2020. The Committee would ensure that all three pieces of legislation were passed so that the NPA could start its own process. He said that public hearings were an important constitutional requirement to pass laws and expressed his gratitude to the different organisations for their participation in the process.

Adoption of Draft Committee Report on Magistrates Disciplinary Reports

The Chairperson confirmed that the following draft reports were issued to members:
The draft report on the provisional suspension of Magistrate D Nair
The draft report on the suspension of Magistrate I Meyburgh
The draft report on allowances and benefits for Constitutional Court judges
The draft report on the determination of Magistrates’ salaries

The Chairperson suggested that the reports not be read word-for-word but that all the reports be moved and adopted. He presented the Minister’s report, tabled on 25 February 2020 and referred to it, informing Parliament of the provisional suspension from office of Mr D Nair, the Chief Magistrate at Pretoria, pending the outcome of an investigation into his fitness to hold the office as Magistrate as required by section 13(3) (b) of the Magistrates Act, (No. 90 of 1993) (the Act).

Advocate Breytenbach said that there would not be a quorum if she left the meeting because she knew Mr Nair very well but stated that she was not conflicted.  Advocate Mohamed also placed it on record that he knew Mr Nair but he too was not conflicted as the relationship was not personal. The report was adopted.

The Committee adopted the Minister’s report, tabled on 27 November 2019 and referred to it, informing Parliament of the suspension/removal from office of Ms I Meyburgh, an Additional Magistrate at Johannesburg, pending consideration by Parliament of the recommendation of the Magistrates Commission for her removal from office in terms of section 13(4) (a) (ii) of the Magistrates Act, 1993 (No 90 of 1993) (the Act).

Adoption of Draft Committee Report on Judges and Magistrate’s Salaries

The Committee adopted the report on the Draft Notice determining the rate at which salaries, allowances and benefits are payable to Constitutional Court judges and judges annually with effect from 1 April 2019, tabled for approval in terms of section 2(4) of the Judges’ Remuneration and Conditions of Employment Act 2001, (Act No 47 of 2001) on 2 March 2020 referred to it.

The Committee adopted the report having considered the request for approval by Parliament of the Draft Notice determining the rate, with effect from 1 April 2019, at which salaries, allowances and benefits are payable to magistrates annually, tabled on 2 March 2020 for approval in terms of section 12(3) of the Magistrates Act (No 90 of 1993) and referred to it.

The Chairperson thanked the members for the work done and said that he was going to depend on them to ensure that the Bill was passed. Mr Horn and Advocate Breytenbach would deal with the technical issues of the Bill. The Bill must be passed by both Houses by 14 May 2020. There were two Bills under the subcommittee that must be completed by both Houses. He would keep the Committee informed about both items.

The meeting was adjourned.