Video: Portfolio Committee on Justice and Correctional Services, 10 Feb 2021
Tracking the Gender-Based Violence Bills in Parliament
ATC201126: Report of Select Committee on Security and Justice on Recognition of Customary Marriages Amendment Bill [B 12 – 2019] (National Assembly – sec 76), dated 26 November 2020
ATC201125: Report of Select Committee on Security and Justice on Traditional Courts Bill [B 1B – 2017] (National Assembly – sec 76), dated 25 November 2020
The Department of Justice and Constitutional Development briefed the Portfolio Committee in a virtual meeting on the National Council of Provinces’ (NCOP’s) amendments to the Traditional Courts Bill and the Recognition of Customary Marriages Amendment Bill. The Committee also received a briefing from the Constitutional and Legal Services Office (CLSO) on the Criminal and Related Matters and the Criminal and Sexual Offences Bills.
Responding to the NCOP’s amendments to the Traditional Courts Bill, the Committee asked about the process that needed to be followed, as the Bill had been approved by the Committee in the previous Parliament. It wanted to know what would transpire should this Committee not approve the amendments made by the NCOP. Some Members felt that the Bill was creating two regimes for the black and rural people of South Africa, compared to the rest of the country. Concern was raised over the terms “ordinary” and “traditional courts,” arguing that it implied differentiation. Another main concern was related to its constitutionality, particularly as a Member pointed out that the previous Bill had been approved against advice that it would not pass constitutional muster. The merit of the Bill in its current form was strongly debated.
The presentation on the two gender-based violence (GBV) Bills raised a number of concerns. These were principally around the granting of bail, but also on the parole provisions. The denial of prosecutorial bail was deemed to be possible, as long as some of the other listed forms of bail still existed because although bail was a right, it was not an absolute one, and it was also not one that could be absolutely withheld.
Concerns around making the National Register of Sex Offenders (NRSO) publicly available were raised, and several Members seemed to be in favour of publicising the names on the register against advice that a public register had led to vigilantism in places like the United States, which had an open register, and that this would have a disproportionate impact on the constitutional rights of offenders and their families. The advice given was that it would likely to be found by the Constitutional Court that less restrictive options were possible, such as the United Kingdom’s process of providing confidential access to parents, or the suggestion by the South African Law Reform Commission that the police records should be used.
The Committee requested that further research be done into the impact of registers on the African continent, as the work of societies similar to South Africa’s needed to be considered as well. Some Members felt that the names of child offenders should also be made available to the public, and in particular to the families and parents who wanted to protect their children, as a significant percentage of gender-based violence was committed by children amongst themselves. A request was made that information on the statistical realities of South Africa be given. More information and statistics about repeat offenders and wrongly accused persons in bail cases was also discussed.
The legal advisors responded to questions thoroughly and undertook to do further research, emphasising that many of the decisions involved matters of policy, and that as legal advisors they were not empowered to make those decisions for the legislature.
The Committee was advised that letters had been received regarding complaints about the Head of the Special Investigating Unit (SIU), and these would be discussed at its next meeting. Minutes of previous meetings were considered and approved, with some corrections and clarifications.
NCOP amendments: Recognition of Customary Marriages Amendment Bill [B1B-2019]
Mr John Jeffery, Deputy Minister, suggested that perhaps the meeting should begin with the Recognition of Customary Marriages Amendment Bill as it was short, while the Traditional Courts Bill was longer and had been submitted before many of the Committee Members became part of the Committee. He invited Ms Theresa Ross to begin the presentation, as she was leading the delegation.
Ms Ross, Principal State Law Adviser, Department of Justice and Constitutional Development, said the Bill was adopted by the Committee last year and was subsequently referred to the National Council of Provinces (NCOP) for consideration and concurrence. The Bill aimed to amend the Recognition of Customary Marriages Act of 1998 by regulating the proprietary consequences of marriages entered into before the commencement of the Act. There were two amendments proposed by the NCOP:
Clause 1: The definition of ‘traditional leader’ was deemed safer when being brought into line with the Traditional and Khoi-San Leadership Act 3 of 2019 and when it was not legislation-specific. The table contains the proposed definition as: “any person who, in terms of customary law of the traditional community concerned, holds a traditional leadership position and is recognised in terms of the applicable legislation providing for such recognition.”
This Bill aimed to amend section 7 of the Recognition of Customary Marriages Act. However, the opportunity was also taken to also amend the definition of a traditional leader as it stood in the Act, which had been defined as a traditional leader contemplated in section 1 of the Traditional Leadership and Governance Framework Act 41 of 2003, when the Bill was presented to the NCOP.
Clause 4: the short title should be changed to read 2020 instead of 2019.
She said this was the end of the NCOP proposed amendments.
Adv S Swart (ACDP) said he did not see any problems with the amendments.
Ms N Maseko-Jele (ANC) thanked the NCOP for its contribution, and accepted the changes.
Adv G Breytenbach (DA) said that the DA reserved their position.
The Chairperson asked if there was further input. As there was none, he suggested that on Friday before the Committee proceeds, the report needs to be ready so that the Committee can adopt the Bill. These were some of the Bills that the Committee would want the Programming Committee taking note of so that by 23 February they can be served before the House. There were a lot of Bills which needed to go before the House, and the Committee wants to process them as expeditiously as possible. He asked that the next presentation be made on the Traditional Courts Bill.
Deputy Minister Jeffery asked that Ms Ross continue lead this presentation. There was a similar document in the amendments of the NCOP, but the Department had asked Ms Ross to prepare a general presentation on the Bill because apart from the DA Members and Mr Swart, other Members were not part of the Committee when the Bill was passed by the Portfolio Committee in the last Parliament. He asked that she start with the slides before moving on to the specific NCOP amendments.
The Chairperson asked the Committee Secretary to present the document for Ms Ross, and commended him for being very fast.
Traditional Courts Bill [B 1D-2017]
Ms Ross began by explaining that the Traditional Courts Bill was adopted by the Select Committee on Security and Justice on 25 November 2020, and subsequently by the NCOP on 2 December 2020. The object of the Bill, contained in clause 2 of the Bill, was to create a uniform legislative framework, regulating the role and functions of Traditional Courts in the resolution of certain disputes in accordance with constitutional imperatives and values.
The existence of Traditional Courts, while constitutionally essential, needed to be transformed into alignment with the new constitutional dispensation as recognised in Chapter 12 of the Constitution.
Efforts were made to address the concerns raised in the previous Bills which were introduced in Parliament in 2008 and 2012, particularly the concerns around the role of women and other vulnerable groups.
This Bill had improved levels of dispute resolution by recognising levels which were not previously present in the Bill, such as the headman or headwoman’s court, the senior traditional leader’s court and king or queen’s court. She added that the Traditional and Khoi-San Leadership Act introduces another level, over and above the levels provided for in this Bill, which she would discuss further when dealing with the actual amendments of the NCOP.
Clause 3: Guiding principles
This clause sets the expectations for Traditional Courts in dealing with disputes. Constitutional values were of paramount importance. The Bill emphasised restorative justice and reconciliation through mediation.
Notably, Traditional Court proceedings do not differentiate between civil and criminal proceedings, which was why the word ‘dispute’ was used in the Bill.
Clause 4: Institution in Traditional Courts
Proceedings may not be instituted in Traditional Courts if they were being dealt with at another level of the traditional justice system. Schedule 2 of the Bill sets out and limits the types of disputes a Traditional Court may deal with, to less serious matters which may disturb the peace in the community, such as: theft, malicious damage to property, receiving stolen property, assault without grievous bodily harm, crimen injuria, amongst others. Traditional Courts may, however, give advice on, and not adjudicate or deal with: initiation; ukuthwala; succession; inheritance; or customary marriages. These matters are outside the matters which the court is permitted to hear in terms of Schedule 2. In the event that a person approaches a Traditional Court for relief and the matter is not listed in Schedule 2, the Traditional Court is empowered to give the person counsel or to refer the matter to another court or another appropriate institution.
Clause 5: Composition and participation in the Traditional Courts
Traditional Courts are required to promote equality as envisioned in Chapter 9 of the Constitution. The clause requires the Minister and Commissioner for Gender Equality to put measures in place to promote gender equality in these courts and to report annually to Parliament on the matters they faced.
Clause 6: Nature of Traditional Courts
The Traditional Court system aims to resolve disputes by using restorative rather than the retributive methods used in ordinary courts, emphasising conflict prevention and maintaining harmony, social cohesion and reconciliation.
Clause 7: Procedure in Traditional Courts
This clause extends the guiding principles in clause 3 by building in safeguards for the protection and assistance of vulnerable groups.
Any failure to comply with procedure can lead to a matter being taken on review to the High Court. The Bill also provides for Provincial Registrars who will assist aggrieved litigants to take their matters on review. Legal representation is not allowed in these courts. Parties may be assisted by any person of their choice in whom in the party has confidence. There seemed to be consensus that legal representation should not be allowed.
Clause 8: Orders that may be made by Traditional Courts
A concern was raised about the previous Bills, that the imposition of retributive orders could lead to abuse in the system. The proposed orders are restorative justice orders, such as compensation and redress, which are aimed at restoring the relations between parties and promoting social cohesion in the community. The payment of compensation may, however, not exceed the value of the damage that gave rise to the dispute or the amount determined by the Minister by notice in the Gazette from time to time, whichever is the lesser. Community service is also a proposed order. However, as a safeguard, this service may not be to the benefit of any traditional leader; any member of the court or a traditional leader’s religion. Rather, it should be for the benefit of the community.
Clause 9: Enforcement of orders of Traditional Courts
A mechanism for ensuring the compliance of the orders is required. Failure to comply can lead a party to approach a clerk of the Traditional Court for assistance.
Clause 10: Provincial Traditional Court Registrars
The Bill provides for the appointment or designation of Provincial Traditional Court Registrars and sets out their roles and responsibilities, which will have changed to be brought in line with the Constitution.
Clause 11: Review by the High Court
The Bill allows for review of procedural shortcomings in the High Court.
Clause 12: Referral of matters from Traditional Courts to Magistrate’s Courts
The Bill allows for referral to Magistrates’ Courts once all Traditional Court system appeal procedures have been exhausted. Appeals may not be lodged in respect of procedural irregularities.
This clause provides for the Minister to create a Code of Conduct that will regulate those having a role to play in the Traditional Court, as well as how breaches are to be dealt with. This would be further elaborated on in the discussion of the proposed NCOP amendments.
This clause contains transitional provisions and gives guidance on how matters that are already pending before a Traditional Court will be dealt with. This clause is also relevant for the amendments proposed in the NCOP.
The Bill regulates the keeping of records of proceedings, the transfer of disputes from Traditional Courts to Magistrate Courts, and vice versa.
Ms Ross asked for guidance as to whether to continue to the document on the proposed NCOP amendments, or whether Members would like to engage with the presentation so far.
The Chairperson asked if she could finish within six minutes.
Ms Ross said she could do so.
The Chairperson asked if Members were happy to bear with her for a few more minutes so that they could engage with a complete presentation.
Note on NCOP amendments to Traditional Courts Bill
The document detailed the amendments to the following clauses in the table and the proposed amendments:
Deals with the definition of “traditional leader.”
Delete reference to the Traditional Leadership and Governance Framework Act as the Act providing for levels of traditional leadership.
Corrects the reference made to section 4(3)(f) in clause 11(1)(a), and replaces 4(3)(f) with 4(2).
Details that the Minister, in compiling a Code of Conduct for persons functioning in Traditional Courts, must do so after consulting the Cabinet Minister responsible for traditional affairs, and that the Code is to be reviewed every three years after the same level of consultation.
Provides for the repeal of sections 12 and 20 of the Black Administration Act, to ensure legal certainty.
Speaks to the substitution of 2020 for 2019 in the short title.
The Chairperson thanked Ms Ross for the presentation and background presentation. He opened the meeting for discussion by Members.
Mr W Horn (DA) asked what the procedure for this Committee would be going forward, as it was adopted by the previous Committee, only to be resubmitted by the NCOP. His understanding was that the Committee can either accept the amendments or reject it. He thought that it could be a matter as simple as that, but the Committee in the previous Parliament adopted the Bill even against advice that it did not pass constitutional muster. Legal advice was sought from Parliament’s legal advisers, and it was formally introduced to the effect that to remove the opt-out clause would render the Bill unconstitutional in nature. Unfortunately, at the time, the majority of the Committee decided to still remove the opt-out clause in the face of the legal advice. The then Chairperson said -- and he paraphrased -- that while the input of legal opinion was respected, it did not have to take heed of it. Although its role now is to either accept or reject the Bill, his proposal is that it could not turn a blind eye to an issue which it should be aware of, which remains a part of the Bill.
Adv Breytenbach said she was partly covered by Mr Horn, and supported his proposal. She was sure that the Members would not want to pass a Bill that does not pass constitutional muster. Secondly, regarding the fact that there seemed to be consensus about no legal representation, who was this consensus between, and what would happen if the person chosen was a lawyer?
Ms W Newhoudt-Druchen (ANC) asked to be spotlighted, as there was concern that she was not spotlighted enough. She thanked those responsible for information technology (IT) for correcting this, and Ms Ross for the presentation. She said that the system had kicked her out for a moment, and when she returned Ms Ross had been discussing ‘disputes.’ She wanted to know what kind of disputes, and if she meant that any disputes be heard by the Traditional Courts. She asked if this Bill had gone through public hearings, as she was new to the Committee and was not sure of this. If a person was not satisfied with a ruling in the normal courts, she asked whether that same case could be transferred to a Traditional Court.
Dr M Ndlozi (EFF) said that clarity was needed as to the process needing to be followed before the Committee continued. He asked what exactly the Committee was being asked to do so that it does exactly that.
In response, the Chairperson said that as far as he understood -- though the Deputy Minister could clarify, as he was previously a Member of the Committee when this matter first came before the National Assembly (NA) -- when the NA has dealt with a Bill, it is referred to the NCOP for concurrence. If it is a section 75 Bill, and the NCOP makes amendments which the NA rejects, then the process stands there. If, however, if the NA sends a section 76 Bill to the NCOP and the NCOP makes amendments, the NA can either accept or reject the amendments. If it rejects those amendments, the process in terms of the rule, is that a mediation committee must be established to ensure that the matters in dispute are mediated upon. If the mediation process fails, then the Bill lapses. The Committee is now dealing with a process prescribed for in the rules. The Committee is dealing with amendments made by the NCOP which have been sent back to the NA Committee. If the Committee accepts the amendments, the amendments are passed and will be sent to the President for assent.
The Deputy Minister said that the Chairperson was correct, and that the procedure was a section 76 procedure in terms of the Constitution. The Bill did undergo public hearings in the NCOP.
The Chairperson asked for further comment.
Ms Newhoudt-Druchen asked what had to happen in the process described by the Chairperson should the Bill lapse.
Ms N Maseko-Jele (ANC) said she was not sure whether her comment would be outside of the parameters needing to be said today, but she would go ahead. The Committee needed to make sure that in responding to the Constitution, the rights of people are addressed in the Bills, such as the matter of equality. She was concerned that the presenter was still referring to the Act of 1963, which was in the previous dispensation, and there were now differences between the two types of courts.
The Chairperson said that the Committee was struggling to hear her. He asked if the Committee could return to her, and suggested she should maybe change her device.
Ms Maseko-Jele said she was not sure how far she had been heard, and asked if she was audible.
The Chairperson said she had been saying that traditional leaders needed to be up-skilled to the same level as lawyers.
Ms Maseko-Jele said her next question was to ask what the difference between the courts is, and how they are treated when it comes to infrastructure and payment. If there was a difference, she asked why this was the case and why the Committee should pass a Bill where these issues had not been addressed. Secondly, she wanted to know why there is terminology of ‘normal’ courts and ‘Traditional Courts.’ If the issue is amendment in terms of the Constitution, the Committee needs to make sure that everything be equalised in the infrastructure of the Traditional Courts.
Dr Ndlozi said that since he had clarified the Committee’s position in terms of procedure, the Committee should be unequivocal in rejecting the amendments and restate the position the EFF had made clear at the NA, which is that this Bill remains unconstitutional and is a serious entrenchment of inequalities and an unequal access to quality justice. He did not know why, but he thought that people were perhaps trying to hold on to the Bill for superstitious reasons. Matters such as sexual assault could not be heard in these courts, and if trained legal personnel are excluded from these courts, then what kind of justice is being achieved in these courts and offered to black people? He asked what kind of justice this Bill states that black people deserve. Was it justice that was not rigorous, or that did not follow the scientific mechanisms that all forms of justice in this day and age should follow in the interests of the very people who are aggrieved? The Committee was meant to embrace the entire litigation and justice system. This Bill was differentiating between people in the country. It acknowledges that there are people in the country who are definitively black, rural and almost 100% working class, and then saying that they live under a different regime of justice.
The claim that the Bill has been aligned with the Constitution is fundamentally wrong. The Members should not mislead each other, as the amendments that have come back from the NCOP are not fundamental and are not assisting with the big problems which the Bill has actually always had. The EFF did not support it. He did not know if there was a report still to come, but this would not change the EFF’s position.
Should there be an opportunity to re-start the process and make justice fully equal, so that what happens in proper courts happens in rural courts, this is what must happen. There should be one form of justice which applies to all people. Justice is justice -- there is no traditional, pink, yellow or white version of it. This indirectly says that ukuthwala is right. If the police are excluded and matters which are ventilated with the police cannot come to the courts, what may happen in cases of sexual and domestic violence is that people will be encouraged to the police, but when they go to these courts there will be no rigorous litigation process which involves properly trained legal experts. This is problematic and wrong, and the ANC should be ashamed of passing this Bill in the first place, because they are treating black people like a different species. If it passes, it will be challenged in court and will fall apart. The Chairperson asked the Deputy Minister to respond.
Deputy Minister’s responses
Traditional Courts Bill
Deputy Minister Jeffery said that the institution of traditional leadership is recognised in chapter 12 of the Constitution. Those traditional leaders are only in the former Bantustans or homelands, because the apartheid government did not recognise the rights of African people in the areas outside of the Bantustans. Part of traditional leadership was the Traditional Courts, which Miss Ross pointed out had been there since time immemorial. There is also customary law, which is also recognised by the Constitution and which applies to people falling under those traditions. Therefore, the country does not have a unified system. The key issue is that these Traditional Courts exist in terms of the remaining clause of the Black Administration Act, but probably even without that clause, because of the Constitution, people could argue that there is a right for these courts to exist. The issue then, is to regularise these courts and to bring them in line with the Constitution. This is a process which has been going on for 20 years and really does need to reach finality.
The Law Reform Commission Report from the early 2000s came up with a draft version of this Bill. What the Department did with this Bill was to engage with stakeholders in what he thought was a very inclusive process to determine the process. People from rural areas, people who had an interest in traditional courts, civil society and traditional leaders were all put together and everybody agreed that there was a need to regularise Traditional Courts and an urgent need for this legislation. It then set up a reference group to work with it. Traditional leaders were asked to send representatives, the Department invited people from civil society, and some sections of civil society opted not to participate, in spite of that invitation and in spite of them saying that this Bill was needed. A few of them tried to undermine the process for whatever reason.
The Bill introduced to the NA as Bill 1 of 2017 is the Bill that was approved by the reference group. He had told the reference group that what was desired was not a Bill everyone was happy with, but one that everyone could live with. The two amendments were, firstly, the removal of the opt-out court and secondly, to ensure that the Traditional Courts were not subservient to the Magistrates Courts, which was an apartheid legacy. The effect of the Bill is that one is not forced to participate in a Traditional Court system.
On the issue of GBV, Schedule 2 of the Bill specifies what can be brought. The idea is not to include gender issues because of problems of patriarchy.
Advice on matters
Referring to the issue of advice on custody and guardianship, etc, he said that in normal courts one would go to the maintenance court. If the father has no money and pleads poverty, he does not have to pay maintenance. One does not want maintenance matters to be in a Traditional Court, but one could probably get a better result in terms of advice, where the community knows that the young man is not employed but does have some livestock and can make some contribution as far as livestock for the upkeep of that child. However, in the normal courts, he would just not have to pay anything.
He was not an expert; but his understanding is that it is a deadlock-breaking mechanism when lobola negotiations between families break down. Traditionalists have informed him that it was not inherently wrong in itself -- the problem is that the tradition has been abused. However, someone else could speak on that.
Basically, what can be brought to a Traditional Court is limited. There is no provision that one is actually forced to participate.
He addressed Mr Horn on the concern of constitutionality, saying that there had been further amendments made to the Bill after the legal opinion he mentioned, when the then Chairperson at the time was no-longer the Chairperson. The Bill in its guiding principles now provides for the voluntary nature of customary law, and there are clauses to this effect.
What the Bill is trying to do is not to re-do Traditional Courts, but to bring them in line with the Constitution. Currently, his understanding was that people cannot be forced to attend Traditional Courts. In the case where someone does not attend, a Justice of the Peace must visit the court and has the power to have the matter transferred to the Magistrates Court. This is effectively what would happen in terms of the law. He acknowledged that things may be different on the ground, but in terms of the law, the differences would exist whether or not the opt-out clause was there or not.
He emphasised again that one cannot be forced to attend a Traditional Court, and the question is whether there is still a need for an opt-out clause. The changes that Mr Horn had spoken about, and the ruling from the Parliamentary law advisers, were before further changes were made by the NA Portfolio Committee. He noted that there were some people who were present in the meeting, such as Dr Loots from the NCOP staff, who could perhaps speak about the fact that there were opinions on constitutionality. There are definitely different systems of law in our country -- Roman-Dutch law, statutory law and customary law -- which apply to different people as recognised in the Constitution.
He asked Ms Ross to respond to some of the points. He said that the Bill needed to be brought to finality. It had been 24 years this month since the Constitution came into effect, and Traditional Courts came into being and needed to be regularised. The process had been very inclusive -- more so than most legislation -- and he hoped that the Committee would look at the NCOP amendments as required by section 76 of the Constitution. It did not have to go back to the NCOP as it was now a matter of the agreeing and, if not, then mediation.
Ms Ross addressed the matter of the prohibition of legal representation in Traditional Courts. The Bill now deals with disputes which are covered in Schedule 2. Why legal representation was not suitable for the Traditional Court setting, was that there may have been a need for representation between what was civil and criminal, but because this had been removed, there was justification for legal representation not being used. Whether a neighbour who is a lawyer may represent a neighbour in Traditional Courts, however, that person will not be working as a lawyer but as someone who has an interest in representing the party in the way that a brother or a friend would represent them.
In her understanding, in most cases, Traditional Courts deal with crimen injuria. Traditional Courts are told what it can deal with, and if it is not tabulated in the Bill, the Traditional Court may not deal with it. The Bill will provide the functions of any Justice of the Peace. It explains their confines in mediating a dispute. She was not sure of any amendments to the Justice of the Peace Act, although it was a 1963 Act. What is relevant here, however, is their function in the Traditional Courts Bill.
Ordinary and Traditional Courts
The reason she made the differentiation is to describe the differences in the way the courts function, with ordinary courts using retributive methods and Traditional Courts using restorative methods.
Abuses and alignment with the Constitution
For people who subscribe to customary law, the people can go to the Traditional Courts. Because they trust the system, they would take cases of murder and rape to the courts, because they trust the system. These people need protection in cases of abuse within the system.
The Traditional Courts cannot hear ukuthwala cases. The Bill provides that the Traditional Court can give advice to ordinary courts on what the particular customary practice is.
Traditional Courts sitting
Traditional Courts are not confined to a rural setting, and can sit in urban areas as well should there be members of the community in urban areas.
The Chairperson reminded the Deputy Minister of Ms Newhoudt-Druchen’s question on the lapsing of the Bill.
Deputy Minister Jeffrey said that if the amendments were not approved, then it would mean that the Bill would have to go to mediation. If the mediation committee cannot agree, then the Bill will lapse. In his understanding, this meant that there will no longer be a Bill, and the Traditional Courts will continue as they were before.
The Chairperson thanked the Deputy Minister and said he hoped Ms Newhoudt-Druchen was answered.
Parliamentary Legal Services (PLS) responses
Ms Phumelele Ngema said she was the Parliamentary Legal Advisor on the Traditional Courts Bill. She apologised for being late, as she had come from briefing a Cooperative Governance and Traditional Affairs (COGTA) meeting.
The Chairperson allowed her to proceed.
Ms Ngema said that if the Committee chose not to support the amendments, then a mediation process would be next.
In the previous Parliament, the Bill was explicit on the issue of opting in or out. After deliberation, these provisions were taken out, but not in totality. The Bill still maintains that it is a voluntary situation in line with section 30 and 31 of the Constitution. It is a court of law to resolve disputes in terms of section 34 of the Constitution and not a court in terms of Chapter 8 of the Constitution. This is because the appointment procedures for Traditional Courts are not the same as those for the appointment of judicial officers in Chapter 8 -- Traditional Court officers are appointed through the customary system.
Schedule 6, Item 16 (1) and (6) states that every court, including Traditional Courts, continue to function and exercise jurisdiction in terms of the legislation applicable to it. Anyone holding office also continues to hold office in terms of the applicable legislation, subject to any amendment, repeal of the legislation and consistency with the Constitution. Officers working in Traditional Courts are not judicial officers and the Bill is very clear about this. The Deputy Minister had touched on Item 6 of Schedule 16 and the fact that it has already been 24 years since the new and final Constitution came into effect, which dictates whether any work done or legislative proposal is constitutional or not. Item 6 of Schedule 16 of the Constitution says that as soon as practically possible after the new Constitution takes effect, all courts—including their structure, composition, functioning, jurisdiction and all relevant legislation -- must be rationalised with a view to establishing a judicial system suitable for the requirements of the Constitution.
She asked the Committee to look specifically at clause 3 (2)(d) of the Bill, and that the provisions not be read in isolation. This clause says that the principles applied in terms of the resolution of disputes in terms of customary law and in terms of the Bill are not the same as those applied in the other courts of the judicial system. In terms of the Bill, Traditional Courts will be dispute resolution mechanisms in terms of section 34, and not Chapter 8 and section 139.
A founding value of the Bill is that the Traditional Courts are for those who voluntarily submit themselves to the system. Her position is that the previous version of the Bill contained an express opt-in.
Dr Ndlozi asked whether legal adviser was repeating matters which had been discussed, and suggested with respect that the Committee needed to be sensitive to time.
The Chairperson said that the Committee would ask the Parliamentary legal service (PLS) to provide a formal legal opinion and asked Ms Ngema to speak to points that had not been addressed.
Ms Ngema said she had wanted to answer the three points -- on legal representation, constitutionality and the status of the courts -- as being the matters that had been asked of PLS to assist the Committee with so that it could assist in making a decision.
The Chairperson asked if there were any further contributions. He reminded Members that this was a briefing and the Committee should not create the impression that it is deliberating when it will still set a date to do so.
Ms Maseko-Jele referred to the Deputy Minister’s comment that the matter needed to be brought to resolution, and should not be rushed for Africans. The issue of ukuthwala was a criminal matter, and she asked how kidnapping would be permissible. She said that the courts must tell them that it is not criminal.
The Chairperson repeated that this was not a time for deliberation.
Mr Horn thanked the Chairperson for the guidance on the request for a fresh legal opinion. In this regard, he asked that the PLS take the following into account. Without going into the merits, they were quite correct in saying that the provisions cannot be read in isolation. Similarly, what is important for the courts when interpreting legislation, is also to a large extent the reasoning of themselves as legislators, when they made the laws. In that regard, it was very explicitly on record that the majority of the previous Portfolio Committee felt that the opt-out clause should be removed in order to not allow for people to defeat the functionality of the Traditional Court system by opting out.
He asked that the PLS goes back to the minutes -- although he did not think that the previous Portfolio Committee ever had official minutes, but the Parliamentary Monitoring Group (PMG) minutes and recordings were available -- and consider whether the arguments raised at that stage did not in fact point to a change in the voluntary nature of the customary law system. Further, it should be established whether it suffices to say that the voluntary nature, as a founding value of the Bill, and maintaining this in the Act, is still fine. He pleaded that in dealing with the legal opinion, that the proper context provided by the deliberations at the time was also specifically taken into account.
The Chairperson thanked Mr Horn, and said that it would also be important for the Committee to consider the text as it is, including the amendments which had been made by the NCOP. He said that Ms Ngema should take these issues into consideration, and that a legal opinion should be given within the next two weeks. The Committee would write to the PLS about a day on which Members would be deliberating on the Bill.
He asked the Members if the Committee could continue with the next item on the agenda.
The Committee agreed.
The Chairperson thanked the Deputy Minister and the input from his team. He excused them from the meeting.
Deputy Minister Jeffery said that he would remain in the meeting, as his other meeting was now later and he would like to hear the discussion on the gender-based violence (GBV) Bills.
The Chairperson said the Committee would take a five-minute break before returning to deliberate on the GBV Bills.
Criminal and Related Matters and Criminal and Sexual Offences Bill: Constitutional and Legal Services Office (CLSO) opinion
Dr Barbara Loots, Parliamentary Legal Adviser, briefed the Committee on the Constitutional and Legal Services Office (CLSO) opinion on the Criminal and Related Matters and Criminal and Sexual Offences Bill.
She referred to Section 12 (security of the person) and section 35 (due process) of the Constitution
This case decided that the state does have a duty to protect people from harm. Bail is not an absolute right and although the Constitution gives a right to bail, it does not prescribe a specific type of bail to determine the kind of bail. It also does not allow an absolute denial of the right.
In S v Dlamini, the court distinguishes between police bail (section 59 Criminal Procedure Act (CPA)), prosecutor bail (section 59A CPA), court bail (section 60, read with section 50 CPA) and policy decision (judicial deference).
When it comes to a practical perspective on the difference between prosecutor and court bail, there is no constitutional right that anyone has to prosecutor bail. Her understanding of the readings is that it may be that the Committee would need to ask the National Prosecuting Authority (NPA), prosecutors and magistrate’s courts, what the impact will be in giving effective expression to the amended provision if prosecutor bail is also excluded. This was probably a logistical issue. How it would be implemented is not something that she could comment on as unconstitutional as it was, it was for the legislature to decide.
She thought it important to note that in the event that police bail and prosecutor bail is denied, section 50 of the CPA says that bail not so granted means that that person must be brought before the court as soon as reasonably possible, and no later than within 48 hours.
The Supreme Court of Appeal (SCA) in Mashele said that the design of section 50 is actually the least restrictive manner, as a person cannot just be locked up and forgotten about and that it must be addressed within a reasonable time. An accused’s freedom rights can be limited, but practically, if prosecutor bail is taken out of the equation, the impact will be on the magistrates courts to deal with cases in that reasonable time.
However, she could not otherwise find anything in the Bill which felt unconstitutional regarding bail. It was a policy decision for the Committee to make as to whether it would like to allow only court bail in certain instances, or whether it would like to incorporate some of the others.
As a point of clarity, she asked the Chairperson whether she should respond to questions on each slide or whether she should finish the presentation.
The Chairperson said that since there were only six slides, he thought she should finish.
Dr Loots said she had followed the public hearings where there was a call for a more victim-centred approach to parole. This was a strange area for consideration for her, as she was not sure she knew enough about the parole provisions and she would welcome her Department of Justice (DOJ) colleagues to contribute if she missed something. There was a call for a more victim-centred approach in the hearings. There is no right for parole, but there is an expectation that prisoners are at least considered for the amended parole. It must also be a well-considered decision. There is a need to balance rights and interests of the victim and the prisoner. She did not currently see anything unconstitutional, but asked her DOJ colleagues to contribute.
Plenary Legislative Power
A cautionary approach is needed when the legislature delegates legislative functions.
These must not offend constitutional principles or amount to a complete delegation of legislative power (Smit).
‘Vulnerable group’ is an ever-changing concept. Whatever is being legislated should not impact on the separation of powers.
Technically, it is possible to delegate the regulations on determining vulnerable groups, but it cannot be predicted whether the courts would find that the delegation was constitutionally and procedurally sound. The courts had, however, generally been very strict about what it does. Her findings could not give clear advice, and it would need to be a policy decision and not a legal one.
National Register of Sexual Offenders (NRSO)
The public publishing of an NRSO on the Department’s website, moved South Africa into a similar situation as the United States (US). There is not much evidence that doing this actually presents harm. The United Kingdom (UK) has a middle process between the completely open process of the US and is more structured, as a parent could request the status of a suspicious person in contact with their child. This is done confidentially, however. Should South Africa move towards a similar system as the US in publishing the names of the people, carries a risk.
Proposed s42 (4): constitutional rights infringements
Dr Loots said she had looked at the proposed s42(4) and measured it against the right to dignity. The stigmatisation that comes with somebody’s name being publicly available carries the sense of an almost life-long punishment, humiliation and harassment. Although she acknowledged the fact that their names can be moved, the reality of the world that we live in is that if something is on the internet, even if one tries to remove it, it is still on the internet somewhere. Therefore, there is a risk of a lifelong punishment that infringes on the dignity of the person, with the stigma attached to it.
Looking at the equality aspect and the impact to the right, in GBV cases it is not always that cases fall into the sex-offenders category. It can be a violent crime. Therefore, if the sex offenders’ names are published, there is a differentiation made between the sex offenders and the violent criminals who could both have committed a crime in a similar category, and yet the names of the sex offenders are the only ones made public.
Best interests of the child; privacy; equality
Another differentiation of real concern, especially if looking at the Constitutional Court jurisprudence on the best interests of the child, is where a distinction is being drawn between the child sex offender and the child of a sex offender. This is so because if the parent’s name is on the list and the child is identified, that stigma, humiliation and harassment will link to the child. This then looks at the best interests of the child of a sex offender. The impact of this cannot be regulated, therefore opening these floodgates will mean that a sex offender will not be able to manage the sense of privacy. There is already a limitation on the right to privacy, because a potential employer can already get information on a person, but this is very strictly controlled. If the public floodgates are opened, there is no way for sex offenders to control his inner sanctum and protect his family. In that regard, there is an infringement on equality and privacy.
Freedom and security of the person
People looking at the impact on the right say that a fear of discovery will be cultivated, and the possibility of community vigilantism. The impact will then be in reverse, where in trying to protect the potential victims, the law actually places the security of the sex offender and their family at risk by sending out fear.
Freedom of trade, occupation and profession
There is already a limit to the right of employment as it currently stands within the register. If the register is made public, however, it might hinder the person from setting up a business to support their livelihood. The person’s name being public will limit employment opportunities that can come his way in circumstances where the person is not dealing directly with vulnerable persons. There is also the risk of demotivating offenders from participating in the employment system, and that would lead to the increased risk of re-offending, because if one does not make any money, the chances of one falling back into a criminal context becomes likely, leading to a vicious circle.
The limitation placed on livelihood is also an infringement risk. This risk is opposed by the right to access to information, and that the public has a right to know. The appeal that leads to the access to information argument has been commented on by the courts, academics and the South African Law Reform Commission -- to the effect that it creates a false sense of individual and community security, especially when looking at the fact that a lot of sexual offences are committed by a family member. This then stays in the family and is never reported. The names of those people are not on the system. The publication of the NRSO therefore sends a disproportionate and untrue reflection to the public, because the other people cannot be traced.
In conclusion, she felt that there is a constitutional concern over making the NRSO public. She thought that it was challengeable, and that the Constitutional Court would likely uphold the challenge. She did not think that the public register and its costs and limitations can be balanced out with the cost that is going to be paid with regard to the rights to dignity, equality, privacy, freedom and security of the person, and the freedom of trade, occupation and profession. The impact of the converse to access to information is so unbalanced that there is a high probability that the Constitutional Court would find that there should be less restrictive means for getting the NRSO to have an effective impact, without letting the offenders pay forever for the infringement of their rights.
The proposed publication of NRSO unreasonably limits the constitutional rights of sex offenders.
Section 42(1) of the Act: Retrospectivity
The retrospective inclusion of names in the NRSO, as the Act currently reads, could be justified. She had spoken to her Department of Justice and Constitutional Development (DOJ&CD) colleagues on this point, and found that the limitation of the retrospectivity can be justified. There is a general presumption against something being retrospectively applied, but when the limitation can be justified, this can be done. There is not a complete “no” to adding retrospectivity. Currently, it reads within the limited scope of the register, and is being homed in to focus on a specific portion of the employment aspect, and keeping sex offenders away from contact with vulnerable persons, which is fine.
In her discussion with Adv Henk du Preez, State Law Adviser, the issue came up that if the NRSO is public and also retrospective, the person who is placed on the register did not have the understanding that their information would be public, so the legal consequences that resulted from the now public register being retrospective was risky. Making it public and retrospective raises constitutional concerns about unreasonable legislative consequences, because in doing so one is almost adding to the punishment and extending it way beyond the scope of what the punishment was intended for, as the register was meant to be retrospective only with regard to certain and almost confidential areas.
There is a clear constitutionality concern in broadening the scope of the register, because this would also broaden the scope of retrospectivity, which could be open to the argument of unreasonable legislative consequences. This was what she had concluded in a nutshell in the time allowed to do the research -- time for which she was very thankful, as she really needed it
The Chairperson thanked Dr Loots for summarising the large document into such precise slides. He was sure it was helpful.
Ms Y Yako (EFF) referred to section 35, and asked what kind of constitutional right says bail must be granted. She said that there needs to be engagement on what vulnerable people are, as they could be a gay or lesbian person, or a disabled person.
On the NSRO, she did not feel that the rights of sex offenders needed to be prioritised, and that humanity cannot be granted to sex offenders. If the example of America is being given, it needed to be understood that that process works very well. South Africa needs to have a sex offenders list. There are a variety of people who are operating in Parliament and in any space, who are actual sex offenders. There is a need to know who those people are, and the need for a register had to be taken quite seriously.
Mr Horn thanked Dr Loots for a well-reasoned presentation and asked whether she had considered the proliferation of cases on bail in recent years.
Adv Breytenbach thanked Dr Loots for a well-reasoned presentation. She had no intention of making light of GBV, but as a prosecutor, she was aware that GBV is an allegation that can be relatively easily made, and at the stage of arrest, there is not a lot of evidence available. There are often allegations that are later withdrawn for many reasons, and there are times when someone can have spent time in prison for a baseless reason. She did not suggest that all of these allegations are baseless, but in her 26 years of prosecutorial experience, some of them are.
Ms Newhoudt-Druchen asked what is to happen when the victims are not present, and whether their family members can represent them.
Ms Maseko-Jele was covered by Ms Yako She thanked Dr Loots for the presentation and looked forward to deliberating on the presentation given. On a lighter note, she thought it would be interesting to start with Parliament, publishing Members’ names in the register, as Parliament should start its clean up, as Ms Yako had suggested.
Dr Ndlozi thanked Dr Loots for a very good presentation, and apologised for not having read the 99-page document. He had, however, read the longer document, and would make time to apply his mind to it. He asked whether Dr Loots, in making the comparisons with the US and UK, thought it was critical to mark the differences in our society compared to other societies’ systems. At that level, comparisons are made of solutions -- for example, the American system vs the South African system and the publication of the sex offender’s register. What would have helped the Committee is the statistical reality of South Africa’s society, which gives a lot of gravitas and direction as to what needs to be done to respond to the pandemic of GBV.
He was specifically interested in the idea of the child. In South African law, there is the important principle to protect children from all sorts of things, which all must agree on. This includes violence against each other. When looking closely into child mortality rates -- the statistics that he could find were the latest from 2019 -- one realises that some of the violence is done by other children. There are a lot of violent sexual offenders amongst teenagers. A lot of teenagers kill and rape each other as 14 to 16-year-olds are involved in sexual harassment within and outside institutions and in the family space. This is the true situation and, in the presentation, she did not come out clearly on this point and he did not know what her advice was on this. What he could work out is that at the Constitutional Court, there is a definite “no-no” when it comes to children. However, he asked if these statistics had been considered and the reality of what can be called child-on-child violence.
He considered the significance of parents and not just institutions for higher learning and the friends of his children, for whom he may open his door, knowing the nature of the reality of sexual violence. Because of this parental responsibility, he asked if as a parent he would not have the right to know that so-and-so had been found guilty, whether they were 16 or 12. He asked whether he should not know whether they engaged in the conduct through gangs or on their own. He asked whether the register being public was not important either way. The importance of the register being made public is that families and schools can get hold of it, even in the current dispensation. In the case involving the Post Office, if it had done its due diligence, it should have known about the danger amongst its employees. He thought, however, that there were even bigger restrictions when it came to children.
He wanted to know more, because this is going to be a much more difficult concept to sell to society. He knew Dr Loots was balancing the rights with dignity, privacy and de-stigmatisation, and on the assumption that the prison system is in any case corrective. However, he felt that the register would not be useful if it is not public and if it can only be accessed by institutions. Sexual offences happen everywhere, and if restrictions are made for children, then a family must know the other family, as children befriend each other in the way that they do and there is less protection. One must be able to engage with the person knowing that they have this history.
The second statistic he raised pertains to repeat offenders. He asked whether the Committee has access to these statistics, and said these should be borne in mind when making these decisions. To Adv Breytenbach, he said this was the advice needed and prosecutors needed to advise on the situation on the ground.
Lastly, he asked what the concrete advice on children on the register should be. Should they be included in the register, or not at all? If they are, what controls should be put in place, and what access should be allowed to more than just institutions and families?
His final comments related to a larger, more political question. He knew Dr Loots was just giving legal advice, but there are serious political issues concerned with imprisonment in South Africa, in that incarceration has largely remained in the post-apartheid society as another unfair tool for punishing black people. He was sure that all present were cognisant of those arguments. This is also the case in the US, as the majority of the people who are incarcerated are black. He asked whether Dr Loots’s paper had canvassed those grounds and if it had, he asked what her conclusions or advice was, so that when the Committee deliberates, it gets the tools and can deliberate based on those tools -- some of which can be based on scientific and statistically derived data.
Dr Loots thanked the Committee for its questions, saying that she struggled with the same concerns raised and tried to distance her subjective opinion. She would try to answer objectively, though it may sound cold.
This section outlined where the right to bail comes from, explaining that the right is for arrested persons who have not been found guilty and there is a presumption of innocence
There are issues of people on the ground of people not doing their jobs properly, but this needs to be addressed at the level of information and education, and the law can only go so far. The law is not the only way to deal with social problems. The law can put frameworks in place to protect everyone, but it cannot tell people how to think and how to act.
It was very difficult to define this. She had sat for four days trying to find a clear definition and requirements that can be used, and she still did not know if she succeeded in gathering what academics, courts and international organisations had said. It is something that would require engagement and clear discussion if the Committee chooses to walk the very fine line between respecting the separation of powers and democracy and the rule of law with the plenary power issue. Vulnerable groups would then need to be very clearly identified as to the requirements included in the definition. She did not have a definitive answer and further engagement would be needed.
US Sex Offenders register
The courts in the US approach their registers of sex offenders -- the FBI ones and the state ones --and the rights of sex offenders linked to the register, very differently to the approach in South African courts to the rights of the accused, prisoners and to punishments not unduly infringing on rights.
For example, she had read about a case in Alaska where the register did not fall within the Justice department and did not have a punitive effect. In South Africa, it does fall under Justice. What academics who study the social impact or benefits of a register and what practitioners say often differ. The practical examples of the US systems and what the court says is a concern for her.
The Constitutional Court in S v Makwanyane emphasised the right to dignity. She understood the emotional rawness in the country at present, and did not know of a woman who had not felt threatened in one instance or another. However, similar to the Constitutional Court’s approach to the dignity consideration and on not having the death penalty again, the rights of offenders cannot simply be forgone. The rights of both offenders and the victim need to be balanced and necessarily so, because the victim is the counterpart of the offence. One can only limit the offender’s rights in favour of the victim’s rights if it is reasonable and justifiable in an open and democratic society. If the court, in looking at the purpose of the legislation and whether there are less restrictive means of getting to the goal that has been identified; all of this is really a big test in every situation. It is not something that is done lightly. The courts are not going out of their way to ignore the rights of victims. In fact, in the recent Tshabalala judgement, Justice Khampepe spoke of considerations of victims at a social level, and how they are to be protected. Therefore, the narrative is there and the courts will not likely treat it lightly.
Publicity of the register
She could not definitively speak about the openness of the register. There were some people who found value in it, and this is completely possible. However, she could say that she had read up on situations where it led to stigmatisation, vigilantism and driving people out of town and completely denying their opportunity to have a business and a livelihood and protect their families. There are also real examples of this happening.
Bail and wrongly accused persons
In doing her research, and to her criminal justice practitioner colleague, it must be said that there are cases where people are wrongly accused. There is no concrete test she can offer or that exists that says that in every GBV case that bail should not be granted.
She did not want to sound insensitive in saying this, but if looking at examples of domestic violence, it might be that there are two parties getting a divorce and the one says something just to get to the other one, which results in the other getting arrested, but the case not being taken any further because the claims cannot be substantiated. This, however, means that that person was arrested and their liberty was restricted. They were detained and everything that comes with it.
These concerns around crimes that are sometimes baseless are probably the reason why there are different types of parole. However, like the Constitutional Court said, in looking at the way that the legislature has worded the parole provisions, one can understand that certain distinctions and exclusions are necessary when one looks at very serious crimes. Whether prosecutor bail should then be excluded or included when it comes to, for example, domestic violence cases, is a policy decision because of the fact that the law cannot give that impact assessment. From a policy perspective, she did not have these statistics and was not empowered to give that impact analysis. What she can say is that she knows of cases where a person was accused and the case was not taken further because the accusation could not be supported with evidence.
She gave some general thought that when it comes to court bail, there is a responsibility on a prosecutor to give reasons why they are not opposing bail, and the reason not to oppose bail must be a rational and reasonable one. This type of approach can be extended up to the measures of prosecutor bail, in order for it to be more efficient and effective. However, she was simply not equipped with the statistics and the policy information to speak to what the impact will be for prosecutors and magistrates. She can, however acknowledge that she sees where the argument comes from.
To Mr Horn’s query as to what happens if a person wrongly arrested has any recourse, she explained that there are legal measures to follow after being wrongly arrested. However, this happens after the infringement has taken place.
Referring to the question of whether family misrepresentation can also take place, she said the necessity for the presence of victims has come up in cases as an issue previously. There was a case where the person was not present and the order was given that the correctional services officer should inform the victim when the parole proceedings were on. Following this, on appeal, it was said that the judge did not have the authority to give such an order in terms of the legislation.
Publicity versus less restrictive mans
There are reasons why people call for a public register. Not having children herself, she could only imagine the burden of the fears around protecting children. The concern about parental responsibility was a true one. She did not think she was smart enough to think of how else to lend this protection, apart from publishing the register. However, her gut feeling when she read the law and considered the limitations which appeared to be unreasonable and unconstitutional if published, was that there must be some sort of middle ground or less restrictive means that also gives protection. What that is and how that should be designed falls outside her knowledge, as she was not a specialist in that area. The UK had found a middle ground, and whether that would work in the South African system can be questioned. For example, if employers do not follow the strict process and if parents do not do the same, there would be questions as to whether the system is open to abuse. However, in theory, there are less restrictive means. The UK is an example of less restrictive means and catering to parents’ concerns whilst also acknowledging the confidentiality and privacy of those who should be protected.
She acknowledged that the comparisons serve only as guidelines, as society in South Africa is very different to the UK or the US. This is why the Constitutional Court constantly reminds us that the Constitution is a living document that changes its interpretation to meet the needs of the time, as long as it meets certain benchmarks. Justice Pius Langa called it a transformative constitution for this reason. As a country, there was a need to transform in applying the Constitution and learning from the past in moving towards the future. The balancing of rights is part of that transformation process in applying the constitution. So, every step that is taken in looking at everybody’s rights and balancing them all to find a way of reaching a clear, legitimate goal to protect in a way that is the least infringing way, is a step in transforming with the Constitution.
Dr Loots said she did not have clear statistics on repeat offenders. She assumed that there would be a way to find these statistics, but she was not sure if they were marked differently.
The South African Law Reform Commission (SALRC), in their report on the NRSO, said that they would be more in favour of the use of police records. She knew that this was raised in public hearings and in Members’ deliberations, so she thought it would be helpful to add, as there had been the suggestion that if the NRSO was not the way to go for the least restrictive means, there may be other registers that can broaden the protective scope while also respecting all of the rights that are at play. She hoped she had made sense, and had addressed the concerns as much as she could.
The Chairperson thanked Dr Loots for her work, as she had really assisted the Committee in guiding it through what is possible in South African jurisprudence and what the likelihood of success is if these Bills are challenged in the Constitutional Court; based on previous court decisions. She had also helped them understand the likely outcomes if the Committee continues down a particular route.
He thought it was important to allow the Department of Justice to respond if they had anything to add, especially those involved in the process of drafting the Bills and after having had the opportunity to listen to Dr Loots’s good presentation.
Department of Justice responses
Advocate Sarel Robbertse, Senior State Law Adviser, DoJ&CD, said that on section 299A of the Criminal Procedure Act (CPA), Dr Loots had referred to the Nxumalo judgment as well as the Derby-Lewis judgment. His reading of the Nxumalo judgement at paragraph 5 did not lay down a rule that a person must be informed, and if a person is not informed, he cannot attend parole proceedings. He believed that the only case that set out the legal position currently is the Derby-Lewis judgment. In terms of section 299A (4) of the CPA, the Minister of Correctional Services must issue certain directives regarding the participation of a victim in parole proceedings. There is adequate provision in the regulations that provide something to the effect that the victim has to write, must be informed and should be present at parole proceedings.
Regarding bail, two things need to be distinguished. Firstly, there is the provision in the bail proceedings relating to an offence against a person in a domestic relationship, and secondly, when a person, amongst other things, contravenes something like a protection order in terms of the Protection from Harassment Act, the Domestic Violence Act, or any other order granted by a court to protect the victim in question against the conduct in question. Obviously, the argument is raised that there may be circumstances where a person should not merely be kept in jail if an offence has been committed. It was his submission that this could not be aimed at the instances where there is already a protection order in place and the person contravenes the protection order or commits some kind of offence that means he cannot be kept in custody unless he appears in court. If there is an objection, that objection must be differentiated, and it is submitted that it is mostly directed against the offence against a person in a domestic relationship. This was just to clarify.
The Chairperson thanked him, and said he saw the Acting Director General (ADG) was also present.
Ms Kalay Pillay, DDG: Legislative Development, DoJ&CD, said that she had read the presentation and had nothing further to add, other than that she agreed with it.
Dr Ndlozi asked if Dr Loots had looked into how other countries on the continent dealt with the regulations around the Bill, or whether she had limited herself to Euro-American jurisprudence.
The Chairperson asked if Mr Du Preez wanted to answer the question, as he noticed that his hand was up.
Mr Du Preez said that he could not answer the question, as it was raised with Dr Loots. As to whether the PLS had looked at other countries, he had to admit that he had to look at his records, as he was not sure since it had been quite a while ago. What he did want to mention is that the PLS can always come back when it comes to present the working document by indicating how other countries deal with bail.
He also wanted to respond briefly to the issues raised by Dr Loots relating to the Criminal and Sexual Offences Bill. He apologised for Ms Ina Botha, State Law Adviser from the DOJ&CD, who appeared to be on the platform but had in fact left the platform for a doctor’s appointment that had been arranged quite a number of months ago. She had sent her apologies.
Delegation and plenary powers
To respond briefly to the issues raised by Dr Loots, he qualified that the DoJ&CD may be in a better position to clarify issues when it goes through the working document with the Committee. He did not want to waste time, but in terms of the powers delegated to the Minister to identify vulnerable persons, the PLS wanted indicate at this stage that it is the responsibility of the executive to implement legislation. In the vast majority of cases, a Minister is delegated to promulgate subordinate legislation -- mainly the rules and procedures relating to the implementation or more practical aspects of implementing the Act. In respect of the proposal that Parliament should not give up its plenary powers and should subject the Minister’s regulations to approval by Parliament itself; this is a duplication of processes. The question is then raised as to why Parliament should in any case delegate responsibility to the Minister to promulgate procedural subordinate legislation, but subject to approval by itself.
Insofar as the draft that was submitted in the document to the Committee, this is something it can look at if it wants to go that route. However, he wanted to indicate at this stage that he thought the draft Bill would more than likely have to be changed drastically. The DoJ&CD had heard what Dr Loots had to say about the public availability of the register, and it was aligned with the sentiments. He also wanted to indicate that there is always one main concern about the register, which is that to a certain extent, the main criticism against the register is that creates a false sense of security; especially when it comes to information that is made publicly available. However, this is something the DoJ&CD would address the Committee on.
With regard to retrospectivity, it had written to the Committee to say that the amending provisions should apply prospectively and not only in the case where there is the possibility of information being made public or not, but in general with regard to amendments. He wanted to highlight these things, but said he knew there would be a chance to address the Committee more fully.
The Chairperson thanked him, commenting that his line was very bad and that it was very difficult to hear him. However, he was sure that the Committee could fully engage when the PLS came to present on the working document. He asked Dr Loots for her response.
Dr Loots, in response to Dr Ndlozi’s question, said she had to admit that the academic papers that she chose to read looked at the US, the UK and South Africa, and as a way of managing her time so as not to spend more time on one topic than the rest and to get the project done, she had limited herself to these three, which she understood to be an oversight. If the Committee so required, she can look at examples on the continent of how different countries are dealing with sex offenders.
The Chairperson said he thought it will be a good idea, because she would also make reference to the issue of vigilantism. It would be good to look at the African experience and whether in other African countries, this is the case, because if it is the case, then it is a worrying factor that would make the Committee take a particular position one way or the other. It is important in doing research like this to look at both developed countries and developing countries, and at countries with a similar experience to South Africa and not just developed countries. It is important for African countries with a similar experience to be included in the working document.
He said the Committee has been given the very difficult task of processing three Bills at once. It is not going to be an easy task, but he thought that with Dr Loots’s support and the capable Members from the Department, they would ensure that the timelines are met whilst ensuring that they passed a quality Bill that meets Constitutional muster.
He thanked the Members and asked those who are not Members to give the Committee space as it deals with the minutes from the two previous meetings. Everybody else was free to leave the meeting.
Letters of complaint: Head of Special Investigating Unit (SIU)
Before consideration of the minutes, he told the Committee Members that they would be receiving letters which he had asked the Committee Secretariat to forward to them. The Committee had received complaints about the Head of the Special Investigating Unit (SIU) from one of the executive members of the SIU. It would be good for the matter to be dealt with as soon as possible. After meeting with the Legal Aid Board on Friday, he suggested that a discussion be scheduled to deal with those letters. He asked the Committee Secretariat to ensure that the letters are circulated to all the Members.
Minutes of 2 February: Public Hearings on Correctional Services Amendment Bill
The Chairperson asked the Members if the Committee could begin by making corrections, working through the document page-by-page. He asked the Committee Secretary to deal with a spacing issue on page 3 and as there were no other corrections, he asked if there was a mover for the adoption of the minutes.
Ms Maseko-Jele moved for adoption.
Ms Newhoudt-Druchen seconded the motion.
The minutes were duly adopted.
Minutes of 3 February: Deliberations on Correctional Services Amendment Bill
The Chairperson asked the Members if the Committee could begin by making corrections, working through the document page-by-page. He said that people usually looked at the spelling of their names. As there were no further corrections, he asked if there was a mover for the adoption of the minutes.
Mr Horn said that before the Committee proceeded to adoption, he needed to say that his understanding of the meeting was that it was not a simple agreement to give the Minister the extension. It was an agreement to give the Minister an extension, along with a request that certain matters be clarified when the Minister reported to the Committee after two weeks. He did not know whether the minutes as they stood were really accurate.
The Chairperson asked the Committee Secretary to assist. He recalled that one of the issues was that the Committee needed the Minister to give the Committee the original report without any amendments, as received from the investigator. He asked if there was any other issue.
Ms Maseko-Jele added that the guidelines for the team that the Minister was going to assemble to deal with the matter were also needed, if she was not mistaken.
The Chairperson clarified that she meant the terms of reference.
Mr Horn agreed that this was his understanding as well.
The Chairperson said that he thought this was correct, and said the letter had been sent to the Minister and that he had spoken to the Minister. The Minister had agreed to give the Committee the original report and the terms of reference.
He asked for a mover for adoption of the minutes with the corrections as stated by Mr Horn and Ms Maseko-Jele.
Mr Horn proposed the motion.
Ms Maseko-Jele seconded it, with the amendments.
The Chairperson said that the minutes were adopted as amended.
Minutes of 5 February: Briefing by Department of Correctional Services on the audit committee and internal audit matters
The Chairperson reflected that these were the minutes of the Sub-committee, and not of the Portfolio Committee. He asked for guidance on how to deal with the Sub-committee’s minutes. He asked whether the Committee should adopt them, or have a report that should be delivered by the Chairperson of the Sub-committee orally to the Committee, and only then adopt the minutes as some Members would be dealing with minutes from a meeting that they were not a part of and may not understand the context. In most cases, minutes focus on decisions and the Committee might not understand how a particular decision was arrived at. He asked for guidance on this.
Mr Horn said that procedurally, the Chairperson was correct. If the Sub-committee wanted to adopt minutes, they should do so themselves, and what was agreed as part of the protocol is that the Sub-committee would from time-to-time file reports with the Portfolio Committee.
The Chairperson thanked Mr Horn, and recognised Ms Maseko-Jele.
Ms Maseko-Jele said that this was also her view, and that the minutes belonged to the Sub-committee. This Committee could not preside on minutes belonging elsewhere. The minutes needed to be incorporated into a report by the Sub-committee and presented to the Committee. She was still not clear about whether the timeframes for when the Sub-committee had to come back to the Portfolio Committee to report on those matters had been decided. She did not remember this being discussed, and said she might have missed it.
The Chairperson referred to the frequency with which this should be done. He asked if the Chairperson of the Portfolio Committee could be mandated to work with the Chairperson of the Sub-committee, and if the Committee Secretariat could look at the programme so that the Committee is given a progress report as to what has been happening in the Sub-committee. He suggested that maybe monthly the Committee should receive a report as to what the Sub-committee is discussing, so that the Committee is kept abreast. He asked if this was acceptable.
The Committee agreed.
The Chairperson thanked Members, saying this brought them to the end of the meeting, unless Members had other issues to raise. If there were no other issues, he thanked the Members for their contribution. He thought that the meeting today would be very long, but the Members were very focused, straight to the point and raised pertinent issues. He was not expecting to be done before 2pm.
The Members would meet again on Friday, when it would be dealing with the Legal Aid Board, who would be appearing before the Committee. Information had been circulated to Members, and there are responses to the allegations. He also had to say that Members should bear in mind that he was in communication with the Chairperson of the Legal Aid Board, and it is happy with the responses which are comprehensive, but those responses had not yet been taken to the board and the board has not yet met. When the Committee looks at the report of the Legal Aid Board, it must bear in mind that the board has not met yet, but according to them, the report is comprehensive. The Committee will interact with it on Friday, as well as dealing with the letters that have come before it, which will be circulated today.
The meeting was adjourned.
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