The Committee was briefed by the Department of Justice and Constitutional Development in a virtual meeting on three Bills related to gender-based violence – the Criminal Law (Sexual Offences and Related Matters) Amendment Bill; the Criminal and Related Matters Bill; and the Domestic Violence Amendment Bill. Adoption of the report on the Cybersecurity Bill had to be delayed to the following day due to printing difficulties.
The presentation on the Criminal Law (Sexual Offences and Related Matters) Amendment Bill highlighted the new crime of sexual intimidation, the inclusion of all sexual offenders in the National Register for Sexual Offenders, and the extension of the definition of ‘persons who were considered vulnerable’ and ‘sexual offence,’ and of the scope of the offence of incest. Reporting duties had also been made more stringent in the Bill.
The Domestic Violence Amendment Bill aimed to create a clearer pathway of service by optimising collaboration between departments, by simplifying and clarifying the roles of relevant stakeholders such as social workers and the police. To enhance the application of the Act and provide the maximum protection available through a civil process, it undertook to create a secure online application for a protection order, which would run parallel to a hard copy process. More broadly, it committed to creating an integrated electronic repository which was intended to hold all documents relevant to the issuing of protection orders.
The presentation on the Criminal and Related Matters Bill highlighted changes to the minimum sentences in the Criminal Law Amendment Act. Shortcomings of the bail system were addressed to a degree by the Bill in an attempt to provide greater protection to victims, and to offer a more victim-centric approach. There was a reverse onus applied to someone charged with an offence where there was a likelihood that the accused might endanger the safety of the person making the allegation.
The Committee appreciated the innovation of the online protection order system, but raised concerns about the constitutionality of measures such as the sexual intimidation offence and the reverse onus provision, amongst other amendments which may have an adverse effect. Members would also have preferred for all disabled persons and children to be recognised, as opposed to only mentally disabled persons and children.
The Committee intended to have its own hearings and undertook to plan how the hearings would be conducted. It would need to meet with the Department again to gain a better understanding of its actual capacity to implement all of the measures proposed in the Bills.
Election of Acting Chairperson
The Committee Secretary said that in the absence of the Chairperson, who had to attend a meeting with the Intelligence Committee, the Committee needed to select an Acting Chairperson. As the Chairperson would not be available until Friday, he suggested the Acting Chairperson be selected to act until Friday.
Ms W Newhoudt-Druchen (ANC) nominated Mr R Dyantyi (ANC) as Chairperson until Friday. Ms N Maseko-Jele (ANC) seconded.
Adv G Breytenbach (DA) nominated Mr S Swart (ACDP), which was seconded by Mr W Horn (DA).
Mr Dyantyi received four votes, while Mr Swart received three.
Members of all parties expressed their condolences over the passing of Adv Hishaam Mohamed, who was described as a good friend over the years in the Justice Portfolio Committee and would be sorely missed.
The Acting Chairperson said the meeting was very important, as the issue of gender-based violence (GBV) was a matter of national importance in terms of what both the executive and the legislature had to do. The agenda included presentations from the Department of Justice and Constitutional Development (DoJ&CD) on the three Bills and their onward processing.
Deputy Minister’s introduction
Mr John Jeffery, Deputy Minister, said the three Bills were an attempt to tighten up existing laws relating to GBV and sexual offences. This arose from the declaration coming out of the Presidential Summit saying that this must be done. Effectively, the amendments tightened up the Domestic Violence Act through the Domestic Violence Amendment Bill. Changes would be made to the Sexual Offences Act with regard to the category of crimes and the National Register of Sexual Offenders (NRSO), including who should be on it and who must be checked on it for employment. The Criminal Law (Sexual Offences) Amendment Act was mainly related to issues such as bail and other such matters.
The Bills had been put out for public comment just before the lockdown. There were requests for an extension, and comments were made which were included. The Department had opted to go widely, so there may be some controversial elements in the Bills. However, it preferred to include them so that Parliament could debate them, rather than leave them out, as it would become more difficult to include them later.
Two of the Bills -- the Sexual Offences Bill and the Criminal Law (Sexual Offences and Related Matters) Amendment Bill -- had already been introduced and were approved by Cabinet over a fortnight ago. The Domestic Violence Bill was in the process of being introduced, so the presentation on this Bill would need to be considered to be an informal briefing.
DoJ&CD briefing: Criminal Law (Sexual Offences and Related Matters) Amendment Bill
Ms Ina Botha, Principal State Law Adviser, said that the Bill arose in the context mentioned by the Deputy Minister -- in response to the Presidential Summit and the declaration to do something to address the scourge of GBV. The Department would therefore like the Committee to look at the Bill within the context of the Summit and the commitments indicated by the President.
The changes effected to the provisions of the Bill were better understood by splitting them into three different categories.
The first category dealt with offences and the reporting duties in respect of the suspected sexual abuse of children and persons who were mentally disabled. The second category dealt with the provisions which sought to change Chapter 6 of the Act pertaining to the NRSO, which was created in terms of the 2007 Act. The NRSO provided that the names of people convicted of certain sexual offences must be included in the register if the offence related to a child or a mentally disabled person.
Clause 2 (amending s5(2)), read with Clause 4 (introducing a new s14A), intends to introduce a new offence of sexual intimidation, in order to protect persons from threats of imminent sexual harm.
Clause 2 (amending s12), read with clause 19 (amending s56), only protects against sexual penetration. It was asked why this did not include sexual violence in the case of children.
Clause 19 aims to protect children by replacing the term ‘sexual penetration’ with ‘sexual act,’ which encompasses both ‘sexual penetration’ and ‘sexual violence’. There was also a new definition of ‘sexual act.’
Clause 18 (amending section 54) aims to make the reporting duty the same for children and persons who were mentally disabled.
National Register for Sexual Offences (NRSO)
This deals with the period for the removal of a name from the register.
This sets out the objects of the register -- to protect children and mentally disabled persons from sexual violence. The Bill has amended when the register is to be consulted.
Nature of amendments to Chapter 6
The majority of the clauses in the Bill, in particular Clauses 1, and 5 to 17, aim to expand the scope of the NRSO by:
- Including the particulars of all sex offenders and not only sex offenders against children and persons who were mentally disabled. Therefore every person who had committed a sexual offence would be on the Register;
- Expanding the ambit to include other vulnerable persons, namely, female persons between the ages of 18 and 25, persons with physical, intellectual or mental disabilities, and persons 60 years of age or older who, for example, receive community-based care and support services; and
- Increase the periods for which a sex offender’s particulars must remain on the NRSO before they could be removed from the Register.
Extension of persons protected
Section 40 defines certain terms for the purposes of Chapter 6.
Clause 5 aims to amend certain definitions in order to extend the ambit of Chapter 6 beyond the persons currently protected, namely, children and persons who were mentally disabled.
‘Person who was vulnerable’ -- this includes among others, reference to children, persons with disabilities, persons who were being cared for or being sheltered in facilities that provide services to victims of crime and female persons under the age of 25.
Clause 6-12 indicates the change from the phrase ‘child or person who was mentally disabled to ‘persons who were vulnerable’.
‘Sexual offence’ -- this was defined to ensure that Chapter 6 was not limited to sexual offences that had been committed against children or persons who were mentally disabled, but included all sexual offences that had been committed.
This clause intends to amend section 48 in order to criminalise the non-disclosure of the fact that one had been a sexual offender. Clause 13 therefore introduces an offence for the non-disclosure of previous sexual offences.
Ms Botha concluded the presentation by adding some comments to help the Committee understand the effects of the changes, such as the removal of the limit on the offenders who formed part of the register to only those who commit sexual offences against children and persons with mental disabilities.
The effect of the clause, apart from the fact that an offender’s name would be on the register, was that an offender would be prohibited from working with certain persons. This was a major change, because of the scope of the extension to vulnerable persons.
A person who was vulnerable was still a child or a person with disabilities. However, persons who were being cared for or being sheltered in facilities that provide services to victims of crime, and female persons under the age of 25, were now also protected.
The period for removal of the name a person found guilty of a sexual offence from the register had almost been doubled, with certain sentences resulting in an inability to have the name removed from the register. Clause 16 dealt with this specifically, on page 10 of the Bill.
At present, the NRSO was private, except to the extent that employers who work with children or persons who were mentally disabled may rely on it. Such employers must apply for a certificate before they can appoint staff. The same applies to creches, who must first apply to the Registrar for a certificate indicating that this person had not been found guilty of a sexual offence. If that person was already employed, the employment must be terminated.
The Department felt that the NRSO should be open to the public. All sexual offenders would be on the Register. For the purposes of the prohibition of certain work, the particulars of the person were much broader than the particulars in Clause 7, on page six. Clause 7 required much broader particulars of the sexual offender to be taken by the Registrar. The Registrar was asked to include the full name, identity number and the sexual offence of every person on the register, to be included on the website of the Department.
DoJ&CD briefing: Domestic Violence Amendment Bill (DVAB)
Ms Dellene Clark, State Law Adviser, said this Bill had been issued out of Article 7 of the Presidential Summit declaration against gender-based violence and femicide (GBVF) and the #totalshutdown movement initiated by the public. The Bill had been published for public comment in February 2020.
The DVAB addressed practical challenges, gaps and anomalies which had manifested themselves since the Act was put into operation in 1999.
The Department had consulted various experts and members of civil society before it published a draft version of the Bill for comment in February 2020, with a return date in March, which was extended on request to April. Salient comments had been incorporated into the Bill.
No opposition to amending the Act had been received.
The Bill was aligned with the priorities of government and the National Development Plan (NDP), particularly to realise a developmental, capable and ethical state that treated citizens with dignity, and to ensure that all people lived safely, with an independent and fair criminal justice system.
There were two avenues to finance which were included in existing budgets. The two avenues dealt mainly with:
- Training on the directives for the Departments of Health, Social Development, Police, DoJ&CD, Basic Education, Higher Education and Training, and Communication and Digital Technology, as critical role-players; and
- The upgrading of the criminal justice system to provide for the capturing of domestic violence protection orders on an integrated electronic repository.
Although the law was not a panacea for the complex social phenomenon of domestic violence, when victims of domestic abuse did turn to the law for protection, the law should be effective and efficient in its response.
The Domestic Violence Act provided for an interim and/or final protection order, with a suspended warrant of arrest. However, key challenges were related to the implementation and uptake of this remedy, including the interpretation of specific words.
The amendments seek to:
- Provide a clearer pathway of service by optimising collaboration between departments in order to streamline the provision of services within existing mandates;
- Simplify and clarify the roles of all relevant stakeholders by expressly including the services to be rendered;
- Enhance the application of the Domestic Violence Act to provide the maximum protection available through a civil process;
- Address identified gaps or shortcomings which impact on the optimal implementation of the Act.
- Amend the Act to address language, practical challenges, gaps and anomalies which had manifested themselves since the enactment of the Act in 1999;
- Align the Act with the Protection from Harassment Act, 2011;
- Expand the definition of domestic violence to expressly extend protection to the elderly and to include coercive or controlling behaviour; clause 1(f)(hA);
- Provide a secure online application for a protection order, which would run parallel to a hard copy process in clause 4(1A).
- Create an integrated electronic repository which was intended to hold all documents relevant to the issuing of protection orders per clause 6A;
- Provide for services by other critical role-players, including medical practitioners, social workers and teachers, coupled with directives for relevant departments in clause 18A, B. Service provision includes reporting, screening, counselling, referral to a suitable shelter, and the provision of medical treatment (clause 2A);
- Oblige all with knowledge that an act of domestic violence had been perpetrated, to report it to a social worker or to the South African Police Service (SAPS) – and to criminalise non-reporting (clause 2B);
- Provide for arrest without a warrant by a peace officer at the scene of domestic violence (clause 3(1)(a)):
- Provide for mandatory arrest where there was physical violence (clause 3(1)(b));
- Enhance the powers of the SAPS in terms of search and entry of premises (clause 3A);
- Oblige the court to order the seizure of any weapon, regardless of employment requirements, and conduct an enquiry in respect of the Prevention and Treatment for Substance Abuse Act, 2008 (Act 70 of 2008) and commit the respondent to a treatment centre for substance abuse (clause 9(1));
- Knowledge,or suspicion of domestic violence, was required for reporting in the case of children, and merely knowledge for an adult. Reporting was to be made to a social worker or the SAPS.
- To amend s47 of the Superior Courts Act, which asks for the permission from the judge before domestic violence could be reported, but which did not protect the partners of judges.
DoJ&CD briefing: Criminal and Related Matters Bill
Ms Virginia Letswalo, State Law Adviser, said the amendments primarily aimed to address certain gaps identified in the legislation in order to give protection to victims of GBV against victimisation during legal proceedings, and to make legal proceedings victim centric.
The amendments related to the use of intermediaries; the use of audio-visual links (AVL) to give evidence; clarification of the concept of viva voce evidence; bail; the right of a victim in respect of parole proceedings; the entitlement of the state to appeal a sentence imposed by a high court sitting as a court of appeal; clarification of the offence of assault in Schedules to the Criminal Procedure Act (CPA); and minimum sentences.
Electronic evidence and intermediaries
Currently the ability to give electronic evidence was possible only in criminal proceedings.
Clauses 6 and 8 amend sections 158 and 170A of the CPA.
Clause 6 allows a witness to give evidence by means of AVL from both inside and outside the RSA.
Clause 8 extends the application of s170A so as to allow witnesses with psychological, physical, mental and emotional conditions, as well as witnesses defined as older persons in terms of the Older Persons Act, to give evidence through intermediaries. It also includes conditions for determining that the right people were appointed as intermediaries.
Clause 1 and clause 18 amend the Magistrates Courts Act (MCA) and the Superior Courts Act (SCA) to provide for the appointment; giving of evidence; and oath and competency of intermediaries; and giving of evidence through an AVL in proceedings other than criminal proceedings.
Clause 7 amends s161 of the CPA to extend the meaning of ‘viva voce’ to include evidence in the form of demonstrations, gestures, or any other form of non-verbal expression in respect of a witness who suffers from a condition which inhibits the ability of that witness to give his or her evidence orally.
The provisions of the CPA that regulate bail had shortcomings in relation to GBV offences and offences against vulnerable persons. The following amendments were proposed to address these shortcomings:
Clause 2 and 3 amend s59 and 59A of the CPA, and provide that the release of an accused who was in custody in respect of an offence against a person who was in a domestic relationship with the accused, or for a contravention of protection order (PO) that was obtained against the accused to protect a victim against the accused (PO offence), must be considered by a court.
Clause 4 amends s60 of the CPA, and provides that:
- A prosecutor must provide reasons for not opposing bail in relation to a specified offence;
- A court must consider the view of the victim of the offence regarding his or her safety;
- The grounds which do not permit the release of an accused on bail include the likelihood that the accused would endanger the safety of the person against whom the offence in question was allegedly committed -- which likelihood includes any disposition of the accused to commit a specified offence;
- The onus was on the accused who was charged with a specified offence, to adduce evidence which satisfies the court that the interests of justice permit his or her release on bail.
Protection order offences
Clause 5 amends s68 of the CPA. The amendments provide for the following additional grounds on which bail may be cancelled, namely, where the accused committed a PO offence; did not disclose that a PO was issued against him or her; or did not disclose that he or she was under correctional supervision or parole.
Clause 9 amends section 299A(1) of the CPA to provide for the participation of victims of domestic relationship (DR) offences, where an effective period of imprisonment exceeding seven years had been imposed, in proceedings where the placement of the accused on parole was being considered.
Clause 10 amends s316B of the CPA to allow the State to appeal a sentence imposed by a high court sitting as a court of appeal, in circumstances where a grave failure of justice would otherwise result or the administration of justice may be brought into disrepute.
Amendments in clauses 11 to 14 would amend schedules 1, 2, 7 and 8 of the CPA.
Criminal Law Amendment Act: Minimum sentences
Clause 15 amends Part I of Schedule 2 (life imprisonment) to:
(a) Include murder of a person under the age of 18 years; and the death of the victim in a domestic relationship with the accused which resulted from physical or sexual abuse.
(b) Provides further legal certainty where minimum sentences must be imposed:
- where the victim was raped more than once by the accused and a co-perpetrator/accomplice, if the co-perpetrator/accomplice was not before court or had not been convicted for rape; or
- where the accused had been convicted of more than one rape in the same trial.
(c) Protect the following additional categories of vulnerable victims against the offence of rape by means of minimum sentences -- persons under the age of 18 years and victims who were, or had been, in a domestic relationship with the accused.
Similar amendments were effected to the offence of compelled rape in Part I of Schedule 2.
Clause 16 amends Schedule 2 (imprisonment of 15 years for a first offender/20 years for a second offender/25 years for a third or subsequent offender) to insert the following offences, which are currently listed in Part III, into Part II:
- Attempted murder;
- Rape or compelled rape committed in circumstances other than those referred to in Part I;
- Sexual exploitation of a child/or a person who was mentally disabled; and
- Using a child/person who was mentally disabled for pornographic purposes.
These offences would now carry heavier minimum sentences and would now be on par with offences such as robbery with aggravating circumstances, hijacking, dealing in drugs and firearms in respect of sentencing.
Clause 17 amends Part III of Schedule 2, which allots imprisonment of 10 years for a first offender/15 years for a second offender/20 years for third or subsequent offender. It inserts the offence of assault with intent to do grievous bodily harm where the victim was, or had been, in a domestic relationship with the accused; or was a child under the age of 16 years/either 16 or 17 years of age, and the age difference between the child and the person who had been convicted of the offence was more than four years.
The aim of the second insertion was to avoid unintended consequences, where the victim and the perpetrator were young people in the same age group.
Mr Swart thanked the Deputy Minister and the Department for the briefing and for the extensive work done on these Bills. There had been concern expressed about the delay in bringing the Bills, but he appreciated that they were now before the Committee. Regarding the public comments received by the Department, he asked for the Committee to gain access to them, as they may be helpful. Although Parliament would also call for public comment, he felt that access to those comments would be helpful for the Committee, particularly where they pertained to the controversial elements included in the Bills.
The ACDP supported the broadening of the definitions in the Sexual Offences Amendment Bill, but he cautioned on the need to look very carefully at the implications of the new definitions of sexual penetration and sexual violations as sexual acts on the register. He appreciated the fact that the briefing on the Domestic Violence Amendment Bill was merely a briefing and that the Bill still needed to be tabled, but this would affect how Parliament invited public comment, as it would like to invite public comment at the same time.
He felt it very unfortunate that a clause needed to be inserted to deal specifically with judges accused of domestic offences. Although he understood and supported the need for this, he felt that perhaps the selection process for judges needed to be looked at more closely. In reality, he knew it was happening and it was deeply saddening. On the issue relating to minimum sentencing, he would need to go into it in a lot more detail. He asked for greater clarity on the assault with intent to commit GBV, and why there was a need for a four-year differential, as assault and GBV were the same.
Avoidance of secondary trauma was very important, which was why he felt intermediaries and online applications for protection orders were so important, the latter being very innovative. The practical implementation needed to be looked at very carefully. Often it came down to implementation by the relevant law enforcement agencies. This was a broader issue which he felt the Committee needed to consider.
The Chairperson asked the Minister and the Department if they would want to respond while the issues were fresh.
The Deputy Minister said that copies could be sent, but that Parliament would have to conduct its own hearings.
Ms Botha said concern had been expressed about the definitions of sexual violence and sexual penetration, compared to the definition of sexual act.
Ms Letswalo referred to the minimum four-year differential regarding assault on a child with intent to do grievous bodily harm. She said the intent here was to avoid unintended consequences, where the victim and the perpetrator were two people in the same age group. The Department was not saying that there should not be consequences when there was violence or assault between people who were in the same age group, but the application of this provision in such instances would simply be too harsh.
The Deputy Minister added that sometimes people were turned away at the police station, and sometimes at the courts
Ms N Maseko-Jele (ANC) said she agreed with Mr Swart on the issue of implementation -- that the work should be implemented in a manner so that good results were seen. Regarding the NRSO, she expressed concern about the removal of certain offences. She referred to a recent case of a magistrate treating these issues lightly, and asked for comment. She wanted greater clarity on the weight of protection orders. In her area, there was an issue where a brother had been sleeping with his sister for some time, and she asked how parents could prevent this kind of thing from happening.
Ms Botha said the concern was been noted, and it would be looked into.
She added that s51 already linked the length of the period a name would remain on the NRSO with the type of sentence. For instance, where a person had been sentenced for conviction of sexual offence to a term of imprisonment, periodical imprisonment, correctional supervision or imprisonment as contemplated in a certain section of the CPA without the option of a fine for a period of at least six months, but not exceeding 18 months, whether the sentence was suspended or not, it may on application be removed. The amendments had only extended the period for which the name should remain on the list.
On the question of incest, clause 12 at present stated that in terms of the law, incest was an offence where there was sexual penetration. What had now been added was that it was also an offence when there was sexual violation, and where one of the parties was a child. She committed to look at this further.
Ms Clark referred to persons dying with a protection order in hand, and said the Department was trying to establish a collaborative order in hand. What was being suggested was that the police should be able to arrest the person immediately. With an electronic system, the order would be available at all police stations, so that the information was available, even if the perpetrator destroyed it.
Mr W Horn (DA) said he hoped that quick action would help to limit further GBV. He spoke to the amendments to the Sexual Offences Amendment Bill regarding the proposal that all offenders be included in the NSRO, as well as the changes to the CPA in respect of bail. He asked whether the measures which had been proposed had passed constitutional muster. When one considered the offence of sexual intimidation, for example, one wondered whether someone would not take issue with the inclusion of such a person in the sexual offenders’ register. He asked whether the issue of the reverse onus would be constitutionally compliant in bail matters. Similarly, he felt that the new proposals could be balanced. He suggested that, for example, where a court may grant bail, that courts make themselves available, specifically over weekends and public holidays, to deal with bail applications. The other side of the coin was that if the system was going to be abused, it would be abused on a Saturday or a Sunday, therefore the rights of a wrongly accused person could be seriously infringed by the blunt instrument which the new bail provisions could turn out to be.
The online repository was to be welcomed, but a separate engagement may be needed with the Department to determine to what extent systems had been developed for that. In respect of the protection orders, he felt the civil nature approach was sensible so that victims were not put off by the criminal aspect, which could result in further hurdles for their case. On protection orders, Ms Clark had mentioned the involvement of police stations, but given the serious nature of GBV, he asked whether other service providers in both the public and the private sector should be used, and a burden placed on them to act as referral points.
He asked whether the Department had considered placing secondary victims who were children in programmes, so that they did not grow up thinking that this was how the genders should relate to one another in cases involving both domestic and GBV. He felt this would be important to avoid a vicious cycle, and asked if the Department had considered placing minor children who were secondary victims to undergo specific programmes and treatments.
The Deputy Minister said that Bills had to be certified by the state law advisor for constitutionality before they were introduced, and this had been done. There could be a lot of debate around what was interpreted as constitutional or not, as seen by how often the Constitutional Court overturned the Supreme Court of Appeal or the High Courts on issues where they had a different understanding. The decision now would be with Parliament. Questions such as whether it was reasonable to include sexual intimidation as a reason for inclusion in the NSRO may be a matter for the court to decide, but the intention of the Executive and Parliament was to pass legislation which was consistent with the Constitution
Ms Clark said the recognition of peripheral domestic violence meant that if a person exposed a child to domestic violence and someone discovered this, there would be an obligation to refer that child under the expanded definition.
Ms Botha said there was a question of competing rights between the dignity and privacy of the perpetrator on the one hand, compared to the right of access to information and freedom and security of persons to be free from all forms of violence, on the other. She gave the example of a case she had prosecuted, where a mentally disabled woman had been raped in her home, and asked whether it was not her right to see which names were on the register in order to secure her home before allowing them in. It should also be remembered that even though there were a lot of cases where the proceedings were held behind closed doors, this was not always the case, as a lot of the information was already in the public domain. She agreed with the Deputy Minister, and said that the Parliamentary legal advisors would look into it.
Mr Sarel Robbertse, Senior Legal Adviser, Department of Justice, asked if he could contribute on the reverse onus. He said that the reverse onus was already there in s60 (11) of the CPA. Where a person was charged with an offence in Schedule 5 of the CPA, the accused must be kept in custody unless they could adduce evidence for their release. Insofar as it related to bail proceedings in terms of the Bill, Mr Horn’s comments were possibly directed at protection orders against harassment, or other orders issued by the court to support victims. In those instances, if there was already a court order in place, and the accused continued to breach it, he did not think that it was not too onerous to require him to prove to the court that he would not embark further on such conduct. He felt that such an onus was justifiable in this instance.
Ms Y Yako (EFF) said it was about time that GBV and domestic violence was criminalised. As much as amendments and bills should be passed and fast-tracked, the buck stopped with the SAPS, and asked whether non-action on the part of the SAPS should be criminalised.
The Deputy Minister said GBV and domestic violence were already criminalised -- these Bills were merely tightening up the existing laws. The NSRO had been limited to people who had committed sexual offences against children and people with mental disabilities, and had now been extended to include all people who had committed sexual offences. Therefore, although he could not name the person who had killed and raped Uyinene Mrwetyana, the name would be on the register now. Only when people were working with vulnerable people would an employer need to check the register, so even with the new legislation, the Post Office would not have had to have checked whether the perpetrator was on the NSRO. The Department had considered this, but the consequence of this was that no person who had ever been convicted of a sexual offence would ever get a job after they were released from prison, which meant the issue would be going too wide.
Ms Clark responded to Ms Yako by saying that in 1998, during the deliberations on the Domestic Violence Act, there had been a consideration of criminalising the actions of police for not responding. After due consideration, Parliament had decided on s18 of the Act, which states that national instructions must be issued which explained how police officers should act in instances of domestic violence. It specifically states that failure by a police officer to comply with an obligation in the Act or in the national instructions would constitute misconduct, which may mean that the persons could then lose their jobs. It was quite a severe consequence already in the act. She felt, however, that the police response needed to be seen within a more collaborative response. This was why the Department was looking at a clear pathway of services, so that the police were not also social workers, and that each person fulfilled their role and occupation in terms of their own mandate.
Ms Newhoudt-Druchen said the terminology used by the Department should be improved. The term ‘retarded’ was not used, and was offensive. The community preferred the term ‘mentally disabled.’
Referring to the presentations, she said she had seen nothing dealing with a situation where women in a domestic violence situation make a charge at the police station, but then withdraw their charge, maybe due to family members pressuring them to withdraw. She asked what could be done about this. Secondly, on the electronic protection orders, she asked if an organisation could assist people with applications for protection orders where they did not have access to the internet. For example, where deaf or blind did not have the means to work with the electronic means or devices or data, would there be places to apply at police stations and care centres? She was concerned that the Bill focused only on mentally disabled people, and although she was happy it referred to all vulnerable groups, it would be better for all disabled people to be included. She expressed concern that people who were deaf, who needed to make a statement at the police station or a court, sometimes made statements without a sign language interpreter.
She would like all people and children with disabilities to be covered. Where there were cases of child abuse in a school by an educator, and perhaps the educator was a friend of the interpreter, the child may not want to say anything. She would like them to make sure that in such instances, deaf children were not receiving interpreters only from the school.. There was currently a problem in the courts, where the courts say they appoint sign language interpreters, but the people who need to use the services do not necessarily understand that person. Organisations like DEAFSA had interpreters, but magistrates did not allow these interpreters because they were not on the roll. Many magistrates did not allow interpreters who were not court appointed. There were also auxiliary workers and assistants in that place. She asked what kind of counselling an adult perpetrator got, to understand the kind of counselling which they received before they were released, not just children and adult victims.
Ms Clark said that there needed to be a distinction between laying a criminal charge and applying for a civil protection order. However, the draft amendment Bill provided for mandatory arrest where there was physical violence, and mandatory prosecution where a weapon was used or the victim had sustained a dangerous wound or was assaulted for the purpose of inflicting grievous bodily harm. This was a little bit at odds, as the choice was then removed from the victim, as one may have to declare someone a hostile witness if one does not want to proceed or was being intimidated by somebody. This was particularly included where a person had been encouraged to withdraw a charge.
Regarding the electronic application, as it already stood in the written application, one may apply for a protection order on behalf of somebody else and for an adult, with their consent. She thought this would be the same in an electronic application. As they were looking into something which was looking like something akin to a declaratory application, this was something which could be factored in.
S161 o the CPA allowed deaf people to give evidence in the form of gestures.
Ms Botha said it may be premature to say this, but the President had said that SA sign language should be recognised as an official language.
Mr Robbertse said that the reference to ‘mentally retarded’ currently appeared in s4 of the Domestic Violence Act. That word had been repealed. Regarding the withdrawal of protection orders, he felt this was adequately catered for in s10 of the Domestic Violence Act, which stipulates that the complainant who wants to vary or change a protection order could do so only when the court was satisfied that the complainant did so freely and voluntarily.
The Deputy Minister said that the purpose of the meeting was for the Department to brief Parliament. Parliament would then hold public hearings for a minimum of three weeks. It could advertise for longer, but if Parliament opted for three weeks, it ought to ensure that there was a lot of publicity of the fact that the Bills were out for public comment.
Mr Swart asked for clarity on the Domestic Violence Amendment Bill, which he believed had not yet been tabled, as advertising could take place only after it had been tabled.
The Deputy Minister said it had not yet been tabled, but it would be tabled in the next few days.
The Chairperson asked if there were any other follow up questions before he asked the Deputy Minister and the team to respond. He said the Committee would need to create a roadmap for how it would conduct its public hearings for three to four weeks. This was a very important matter which must not be sidelined. For the Department, there was the issue of implementation. At some point, the Committee would need to hear about its capacity to implement them during, and even before, the enactment of these Bills. This would be flagged so that the Department could go back and prepare to explain how it would be implementing the Bill.
Ms Therese Ross, Principal State Law Adviser, DoJ&CD, said the Department envisioned the Domestic Violence Amendment Bill being introduced by tomorrow and at the latest, by Thursday.
The Chairperson said they would move on to the next item on the agenda relating to the Cybercrimes Bill, and asked the Committee if there were any other pressing comments.
The Committee Secretary said that there was a paragraph that needed to be added to the report which would be sent out today. He asked that the report be adopted tomorrow, as deliberations had been completed and it was a matter of adopting the report.
The Deputy Minister said he was concerned, as the acceptance of the National Council of Provinces (NCOP) amendments had been given at a Committee meeting about a fortnight ago. There was no change, as it involved simply accepting all of the amendments. He had asked at the meeting whether it was approved and had been told that it was, so he did not understand the two-week delay. He asked why the delay had happened and what the report being spoken of was about. The Bill had been in the pipeline for a long time. It needed to be passed so that the President could assent to it. as there was a problem with cybercrime. He did not understand the two-week delay.
Ms Newhoudt-Druchen said that there was no report that had been seen by any of the Members for it even to be adopted.
The Committee Secretary said that the Committee had to create a report saying that the Committee accepted the proposed NCOP amendments, but it had been delayed by the printers. The paragraph accepting the NCOP amendments needed to be added to the report, as it was not sufficient for the Committee to merely agree at a meeting -- the agreement needed to be included in the report. He asked that the report be adopted at the meeting the next day.
The Deputy Minister said that it was not a paragraph -- it was a sentence saying that the Committee accepted the amendments.
The meeting was adjourned.
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