Prescription in Civil and Criminal Matters (Sexual Offences) A/B; Recognition of Customary Marriages A/B & Judicial Matters A/B: consideration; with Deputy Minister

Meeting report

The Committee considered the responses by the Department of Justice and Correctional Services (DoJCS) to public submissions on the Prescription in Civil and Criminal Matters (Sexual Offences) Amendment Bill. The Committee also deliberated on the Recognition of Customary Marriages Amendment Bill and the Judicial Matters Bill.

DoJCS responses to public submissions on Sexual Offences Amendment Bill

The Department of Justice and Correctional Services DoJCS responded to submissions on the Prescriptions in Civil and Criminal Matters (Sexual Offences) Amendment Bill from:

The Congress of South African Trade Unions (COSATU);
The Commission on Gender Equality (CGE);
The Helen Suzman Foundation (HSF);
Lawyers for Human Rights (LHR);
The Women’s Legal Centre (WLC); and
Embrace Dignity (ED)
.
All of the submissions welcomed the Bill.

Cosatu had expressed alarm at the length of time it had taken to get the Bill to Parliament.

Mr Henk du Preez, State Law Advisor, DoJCS, explained that the need to integrate the Constitutional Court’s ruling in the Levenstein matter (Levenstein and Others v Estate of the Late Sidney Lewis Frankel and Others) had caused delays. COSATU had also called for the Bill to remove the option of bail for persons accused of sexual offences and deal seriously with practices such as ukuthwala (abduction of young girls for marriage). Mr Du Preez drew attention to Bills published on the DoJCS website.

The WLC and CGE had been concerned that the references to 27 April 1994 in clauses 1 and 3 of the Bill would mean that sexual offences committed before that date would be subject to the 20-year prescription period, creating an arbitrary distinction among sexual offences.

Mr Du Preez explained that the reference in clause 1 had been inserted as a result of the Levenstein case, but should be removed. The reference in clause 3 could also be removed, and a clarifying sentence inserted if necessary.

The WLC had also called for references to the psychological effects of sexual offences to be broadened. The Department supported this, but a further recommendation, also made by CGE, that debts arising from a sexual offence should be excluded from prescription, along with the offences themselves, was not supported by the Department on the grounds that it could give rise to unintended consequences.

In response to the suggestion of ED, the Department was not opposed to including references to section 6 and 8(1) of the Prevention and Combating of Trafficking in Persons Act.

However, Mr John Jeffery, Deputy Minister, DoJCS, suggested that this should be included in a separate Bill.

Discussion

Adv G Breytenbach (DA) asked what unintended consequences could arise as a result of excluding debts arising from a sexual offence.

Mr W Horn (DA) asked for clarification of the Department’s response regarding references in the Bill to 27 April 1994. Was the Department of the view that the right to prosecute sexual offences committed before that date could or could not be revived?

Ms NH Maseko-Jele (ANC) also wanted this point clarified.

Mr du Preez confirmed that the Department’s view was that the right could be revived. He went on to explain that clause 3 of the Bill amended section 18 of the Criminal Procedure Act, which listed those crimes which were not subject to prescription of the right to prosecution after 20 years. It was inherently retroactive. If a new crime was added to the list, an instance of this crime which had been committed more than 20 years ago could now be prosecuted. The addition of sexual offences followed the pattern of the addition of torture in 2017, for example. Everyone would agree that instances of torture committed before then should be able to be prosecuted, even if they had been committed more than 20 years earlier.

Mr Mongameli Kweta, Senior State Law Advisor, DoJCS, added that the Department did not foresee that a constitutional challenge to this interpretation, based on the right to a speedy trial, could be successful.

Mr X Nqola (ANC) asked for clarity on the precise intention of the sentence suggested by the Department to clarify the right to prosecute sexual offences committed before 27 April 1994. He was concerned that different courts would apply it differently. There could be no possibility of immunity for sexual offences committed before 1994. He asked for the Department to work on their proposal.

Mr du Preez replied that it was precisely to avoid this situation that the Department wanted to remove the references to 27 April 1994 in the Bill. He added that he had recently been informed that a case from the 1970s was already being prosecuted in the Wynberg Magistrate’s Court.

Deliberations on finalisation of Recognition of Customary Marriages Amendment Bill

Ms Theresa Ross, Principal State Law Advisor, DoJCS, recalled that at a previous meeting the Committee had drawn attention to the fact that the Bill did not define several terms relating to property ownership -- ‘marital property,’ ‘house property,’ ‘family property’ and ‘personal property.’ The Committee had instructed the Department to include definitions of these terms in the Bill. The Department’s view had been that they could not be defined without extensive research and consultation to avoid unintended consequences. The Department had found considerable disagreement among traditional leaders on the meaning of these terms in their respective cultures. These leaders wished to continue to define them in customary terms.

The Department was aware that this might continue to prejudice women. On the other hand, definitions such as those offered by the CGE might not cover polygamous marriages. To avoid unintended consequences, the Department did not think the terms could be defined generally for all cultures, and broad, comprehensive consultation with leaders, communities and advocacy groups would be required in order to come up with a system for applying the terms in different cases.

The Parliamentary legal advisor agreed that there was a need for extensive research. This could require the Committee to delay its programme.

Deputy Minister Jeffery suggested that the Committee proceed with the Bill as is, and note that the definitions needed attention in its report to the House. Introducing the Bill with definitions could also be a problem, because Parliament could object that it had not had the opportunity to comment on the definitions.

Discussion

Mr Horn asked what the deadline for finalising the Bill was.

Mr Jeffery replied that it had either passed or would pass before the Bill was introduced. The Department had approached the Constitutional Court for an extension, but it had not been granted because the deadline was going to be missed anyway.

Mr Horn observed that the Committee needed to remember that it had a duty to develop law, and not abdicate its responsibility to ensure that all forms of law were consistent with the Bill of Rights. He was concerned that declining to define property terms in the Bill would allow traditional leaders to protect problematic practices. Putting the problem into the Committee report was essentially just passing the problem on to someone else.

Mr Jeffery replied that Committee reports, if adopted by the House, became decisions of the House. He commented that the Customary Marriages Act needed to be revised in many areas.

Adv H Mohamed (ANC) said that the Department needed a definite programme. If there was a dispute regarding a customary definition, the Court would be able to deal with it. It was important that no-one was harmed because of delays, or because of an inappropriate definition. The public would always find something to add, and this was their right, but it was also important that no-one was harmed in the meantime.

Ms N Maseko-Jele (ANC) agreed on the need for time-lines. She also warned that it should not be rushed. She asked for an assurance that it would be dealt with before the end of the Sixth Administration.

The Chairperson asked the Department to set out a firmer time-line.

Mr Jeffery agreed. He suggested that the Committee could ask the Minister to provide updates.

The Chairperson asked the Department to provide updates every six months. The Committee would need to monitor the revision of customary law by the Department of Home Affairs and the South African Law Reform Commission. He asked if there were any further issues concerning the Bill.

Mr Jeffery said that the Bill would be introduced without amendments.

The Chairperson proposed that the Committee vote on the Bill the next day, as Members did not have copies.


Deliberations on finalisation of Judicial Matters Bill

Ms Virginia Letswalo, State Law Advisor, DoJCS, said that the Department had revised clause 1(c) of the Bill, in response to the concerns of the Parliamentary legal services that it was too wide and vague. The new paragraph extended the application of the accrual system to marriages entered into in former homelands.

The Parliamentary legal advisor supported the new version of clause 1(c), and suggested replacing ‘benefits accruing to spouses in terms of this section’ with ‘benefits of accrual sharing,’ to make it consistent with clause 1(a).

The Department agreed with this change.

Mr Mohamed asked for clarity on the term ‘homeland.’ Did it include self-governing territories?

Mr Jeffery replied that it included self-governing territories and nominally independent states, such as the Transkei. He suggested that a definition in terms of the applicable apartheid legislation could be included if necessary.

Ms Ross clarified that homelands were defined in the Constitution. A definition had been included in a draft of the Bill sent to the office of the chief state law advisor, which had indicated that it was unnecessary.

Mr Horn was concerned that some marriages entered into in terms of the Black Administration Act, according to which marriages were out of community of property unless there was a written agreement to the contrary, would not be captured by the wording of the new paragraph.

Ms Ross replied that the wording was intended to make clause 1(c) consistent with clause 1(a).

Mr Horn understood this. He suggested that a situation of uncertainty could be avoided if clause 1(c) was reworded to make it clear that it applied whether or not there was an ante-nuptial agreement.

Mr Jeffery replied that clause 1(a) and 1(b) covered marriages in so-called white South Africa, and 1(c) only applied to former homelands. Did these paragraphs not address Mr Horn’s concerns?

Mr Horn said he was referring to the uncertainty in the law of some of the homelands. Because of this uncertainty, he was suggesting that the references to being married out of community of property should not be linked to having an ante-nuptial contract.

The Chairperson asked what the implications of Mr Horn’s suggestion were.

Ms Ross thought that the paragraph as written would cover such cases.

The Chairperson asked if Mr Horn was satisfied.

Mr Horn said he was just concerned about the fact that there was uncertainty about the law in some of the former homelands. He hoped there would be no unintended consequences.

The Chairperson asked if there were any other issues with the Bill.

Mr Horn had no issues regarding the Bill, but asked that that the Committee report include some record of the broad input received regarding the procedure followed for the appointment of the National Director of Public Prosecutions (NDPP).

The Chairperson reminded the Committee of its discussion on this matter. The President had established a panel to advise him on who should be appointed, but it was at his discretion. The view had been that this process should be legislated.

Mr Mohamed did not think it should be included in the report.

The Chairperson asked the Parliamentary legal advisor if its inclusion would create any problems.

The Parliamentary legal advisor said that it would not be a problem to include a recommendation.

Mr Jeffery said that a constitutional amendment would be required to legislate the appointment of the NDPP in this way. He did not think that the Committee’s report on the Bill was the right place to raise this.

The Chairperson suggested that the matter could be dealt with by the Committee, even if it was not included in the report on the Bill. The Committee would vote on its reports on the Recognition of Customary Marriages Amendment Bill and the Judicial Matters Bill, and finalise the Prescription in Civil and Criminal Matters (Sexual Offences) Amendment Bill the next day.

Mr Jeffery asked the Chairperson to clarify whether the Judicial Matters Bill would be adopted as amended.

The Chairperson confirmed that it would.

Committee matters

He reminded the Committee that there were outstanding minutes to be adopted.

Mr Mohamed was concerned that Committee minutes should not be distributed before they were adopted.

The Chairperson said that they should be circulated among the Committee only as drafts until they were adopted.

He checked with the Committee that the suspension of Magistrate Desmond Nair and the non-reinstatement of Magistrate Myburgh would be approved without discussion. He said that magistrates’ salaries would be discussed the next week.

Mr Jeffery said he was eager for the matter to be concluded. He noted a factual error in a statement issued by the Association of Regional Magistrates of South Africa (ARMSA). The statement claimed that magistrates had not received a salary increase for two years.

The meeting was adjourned.