Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill: deliberations

Meeting report

Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill
Clause 3 Incest – amending section 12
Mr Henk Du Preez, DoJ&CD State Law Advisor, asked the Committee to recall that it had three options to choose from. It chose the third option; which was an objective test with reference to the nature of the act performed with the child.

The Chairperson noted there were no questions from Members thus the drafter can assume that Members had no problems with the clause.

Clause 4 Sexual Intimidation – inserting section 14A
This provision was also cleaned up for the Committee and now reflects the second option. It entails the fact that all sexual offences will be included within the ambit of this provision. When the Cybercrimes Bill amends the Sexual Offences Act, then it will include the additional new offences as well.

Chapter 6 National Register For Sex Offenders
Clause 5 Definitions – amending section 40
Mr Du Preez skipped definition of 'employer' as the Committee still had to indicate which option they preferred.

Definition of ‘person who is vulnerable’
Mr Du Preez pointed out that under Option 1 as discussed on 2 March, there is nothing new, the option remains the same. When it comes to Option 2, the Committee had a discussion on LGBTIQ+ in paragraph (f) in grey as highlighted on page 8 – which represents the wording preferred by the Committee. However, since the ambit of (f) is still very wide, the Department proposes adding the words 'persons being cared for or sheltered in a facility that provides services to'. This was in line with (c) onwards where the provisions start mentioning shelters and persons receiving care. Paragraph (g) deals with refugees. On 2 March, the Committee indicated that Option 3 was the preferred option.

Definition of ‘sexual offence’
Mr Du Preez noted that Option 2 was preferred on 2 March in the interim. The option addresses the very wide ambit of the provisions, which are similar to the wide provisions of the definition of 'employer'. It removes the requirements of 'access to' from 'person who is vulnerable' or the requirement of access where vulnerable persons 'congregate' or are 'present.'

Clause 7 amending Section 42: Establishment of NRSO and designation of Registrar
Option 1 on page 13 was an attempt to make the limited information included in the NRSO publicly available. The Committee requested that the Department prepare Option 2, which aims to make provision for an application procedure to the Registrar. The Department had the impression that the Committee was still concerned about 'any person' in section 42(4)(a) and that it might still be too wide.

Therefore, Mr Du Preez had prepared an additional Option 3 on page 14 of the document. He went through the provision to give an indication of what could be done to restrict the meaning of 'any person'. The Committee could consider the term 'interested party' or 'interested person.' Therefore, in the proposed new section 42(4) it could read 'An interested party may apply to the Registrar in the prescribed form, to determine if the particulars of any other person appear in the Register in the prescribed form.' He read out 42(5) on the factors to be considered and (6) on the decision of the Registrar. He read the proposed definition of 'interested person' in 42(7): "means a person who is a member of the family of or in a close relationship with a vulnerable person and who suspects that the particulars of a person, who has regular access to or who frequents places where vulnerable persons congregate, have been included in the Register."

Mr S Swart (ACDP) said he liked this additional option as it limits applications to 'interested persons', which is then defined. It did in fact advance the Bill, and he appreciated the effort.

Ms J Mofokeng (ANC) asked what if it is not an interested person but an interested organisation. Sometimes victims are represented by organisations.

Mr Du Preez replied that in principle, he had no objection to including this. However, the organisation will not be in a close relationship with the person. He was not sure how he would find add 'organisation' considering 42(5) and (6). The idea would be to change it to a person or organisation; however, that would be too wide. It might have to be a person or 'organisation working directly with vulnerable persons'. He asked if Members wanted to include this. He offered to insert it to see how it would read. There might need to be a subparagraph.

Mr Swart said that Ms Mofokeng’s suggestion was very good and he would appreciate Mr Du Preez adding it. If it could be included, he would support it.

Ms W Newhoudt-Druchen (ANC) said she would support the addition and she did not mind if it was in 42(7) or split under the subsection as subparagraph (a) and (b) as long as it was in the Bill.

Ms N Maseko-Jele (ANC) agreed and asked about the 42(4)(a) requirement that the application not be frivolous or vexatious. She did not disagree with it, but asked what would be considered as frivolous and vexatious and asked for an example.

Mr Du Preez replied that when it comes to 42(5)(a)-(c), the Department included these as proposals after having internal discussions to try and determine factors that should be taken into consideration. Unfortunately, and in many instances, reference is usually made to applications which are frivolous or vexatious. It would almost be like being a judge in a case as the requirement will have to be judged on a case-by-case basis. It was difficult to provide examples where applications would be frivolous or vexatious as in some instances it would likely be apparent to the Registrar, and in other instances, it would not be that difficult to determine. The Department admitted that it was a requirement that could be reconsidered, however it asked for the Committee’s guidance on which factors it would like the Registrar to take into consideration before making a decision to grant an application or not. He apologised for not being able to give a clearer answer.

The Chairperson said that the main aim of this provision is always to ensure that there is no abuse of the process. He asked if this was correct.

Mr Du Preez said it was correct, and it is to limit the very wide ambit of the option previously presented to the Committee. The requirement would ensure that there is now some sort of nexus between the concern of the person applying; the vulnerable person the interested person wants to protect and the suspected person whose particulars may be in the register.

The Chairperson asked Ms Maseko-Jele for her reaction even though she might not be satisfied.

Ms Maseko-Jele replied she was not sure; she was concerned about people having too much power as they might be able to misuse it. Although she was not sure, she felt it was important to raise

The Chairperson said that it might be difficult to list the instances or have a definition of frivolous and vexatious. He did, however, appreciate that the terms are widely used in legislation. He said to Mr Du Preez that there might be guidance in case law on the ambit that would be considered for anyone exercising this power and for them not to act in an unreasonable manner. He asked if this was correct.

Mr Du Preez replied that the drafters would have a look at this and provide a report-back at the next meeting. If it found that there is a need to define the terms, it would do so. One could already think of an example where a person who regularly applies to the Registrar and a pattern may evolve where the Registrar finds that the applications are becoming frivolous as that person is just someone wanting to find out information without having a nexus to a vulnerable person. The drafters would look into the concerns raised.

Ms Newhoudt-Druchen said she would like to assist Ms Maseko-Jele. In a case where the Registrar sees something as frivolous or vexatious and the applicant does not view it in this light, she proposed that there could be a way to appeal, ask for a hearing or receive an explanation. Things are seen differently by other people. We do not always have the same opinion and the Registrar would deal with a number of cases.

The Chairperson asked that Mr Du Preez take the perspectives offered by Ms Maseko-Jele and Ms Newhoudt-Druchen and prepare an option for the Committee to consider.

Mr Du Preez replied that the Department had expected this proposal and asked the Committee to take into consideration that the acceptance or not of the application by the Registrar, is nothing more than an administrative action. If the Registrar decides not to process the application as a result of it being frivolous or vexatious, the Registrar is duty-bound to provide reasons for this. The Promotion of Administrative Justice Act (PAJA) requires that a person exhaust all internal remedies before approaching the court, it could mean that the Registrar can be taken on an internal appeal to the relevant authority which would be the Minister of Justice. The Department is satisfied that it would not be necessary to include those requirements here.

Ms Mofokeng agreed that not everything needs to be detailed in the Bill. However, this is where systems are necessary. It cannot be that the Registrar is the alpha and omega. It might be that implementation might need to be tightened up.

The Chairperson said that it is not clear in the Bill what the appeal mechanism is. He was not even clear what level the Registrar would be in the organisation. He asked that this be explained because from what Mr Du Preez said the appeal body for the Registrar would be the Director General. He asked if there would be one central Registrar, or if registrars would be decentralised throughout the country.

Mr Du Preez replied that the Act gives the Minister the obligation to establish the Register and then designate a Registrar. The relevant authority for the Register and the Registrar's decisions in terms of PAJA is then the Minister. For the purposes of PAJA, one could argue that the administrator who makes decisions is the Registrar. If a party is aggrieved with the decision of the Registrar, the internal appeal lies with the relevant authority, who is the Minister. On the question on centralisation, a provision can be inserted that states only the Registrar of the NSRO can receive and consider these applications. In other words, the decision is not be taken at a provincial level if there are such sub-offices of the NRSO in the future. The Department can provide a safety net provision for the Committee to make it clear that only the NRSO Registrar may process these applications.

Ms Mofokeng asked that more research be conducted on the challenges faced by the current sexual offences registrar, especially pertaining to children. The existing challenges might be encountered again in the future. She was not saying that they would happen, but it should ensure that they are not repeated. The Chairperson was correct in checking who would be the Registrar and where.

Adv G Breytenbach (DA) agreed.

Clauses 8 and 9: amendment to sections 43 and 44
Mr Du Preez said that the Committee had not raised comments or criticism on these two clauses previously. The Department will assume that the Committee accepts them and would clean up this part of the document.

Ms Newhoudt-Druchen asked if the amendment clauses in Chapter 6 would still apply if the Register is handed to SAPS.

Mr Du Preez replied that the short answer was no; however, when he came to the second part of the document, he would speak on how things would work when it came to the Criminal Records Centre. He would explain to the Committee precisely how that system works.

Clauses 10 to 15
These clauses did not raise comments from the Committee.

Clause 16 Removal of particulars from Register – amending section 51
Mr Du Preez noted the Committee's chosen option on page 22 providing for persons who are entitled to apply for the removal of their name from the Register but who have not yet applied for such removal before the implementation of this Amendment Act, may still submit an application after the fact, which the Registrar must consider as if the Amendment Act had not commenced.

This option did not solicit any comments from the Committee except that the Department should check the reference to 2020 throughout the document should be 2021.

Clauses 17 to 21
These clauses did not raise comments from the Committee.

Amendment to Long Title of Act
Mr Du Preez noted this amendment must happen to add the new offence of 'sexual intimidation' that has been created, to the Long Title.

This brought the Committee to the end of the first part of Working Document 4.

Option: Transfer of Functions to South African Police Service (SAPS) Criminal Record Centre
Mr Du Preez said he should have clarified some things for the Committee at previous meetings. He saw the title might be a misnomer or create a misunderstanding. What is in fact proposed is that if the SAPS Criminal Records Centre is given the power to issue certificates in terms of Chapter 6; then the NRSO as it is currently known will cease to exist and the system will be replaced by the SAPS system which issues a clearance certificate. He wanted to repeat the fact that a clearance certificate reflects one's entire criminal record. What the Department was originally concerned about was the ambit of Chapter 6, which is limited to sexual offences. The Department was concerned that if the full criminal record of a person is divulged, it would take that process beyond the ambit of Chapter 6.

Mr Du Preez said the Committee would remember that it came up with a proposal on 2 March which would stay within the ambit of Chapter 6 and the prohibition contained in it. The prohibition should be restricted to sexual offences; therefore Chapter 6 will determine that a person who applies for employment should submit a police clearance certificate together with their application for employment to the employer. If such a person has a previous conviction for sexual offence, the prohibition in Chapter 6 will then apply. The prohibition will then be limited to the sexual offence. The second part of the document has attempted to indicate to the Committee, what kind of amendments would be required to Chapter 6 as well as to the SAPS Act and the Criminal Procedure Act (CPA) to give effect to the transition provision.

The Chairperson asked for the Committee’s initial reactions.

Ms Newhoudt-Druchen said she needed to pause and re-think after Mr Du Preez replied no to her first question about whether the amendments to Chapter 6 would still apply if the Register is handed to SAPS. There was a reason the register was needed in the first place. She thinks it should stay with the Registrar and not move to SAPS. With the rise of GBV, especially sexual offences against children; she felt that if it moved to SAPS, the severity of the crime of sexual violence would be lost. She thought it should stay with the Registrar, however she was not sure.

Ms Y Yako (EFF) agreed as SAPS is already overworked and is unable to take on the workload, especially on sexual violence and GBV. She did not think that moving the Register to SAPS would have the desired effect. Keeping the Register with the Registrar would keep it more controlled as well as safer. She was not saying that SAPS is prone to tampering, but she would rather it stay with the Registrar instead of moving to SAPS. The move would complicate matters in doing their jobs.

Ms Maseko-Jele agreed saying that the Register should remain with the Registrar, 'finish and klaar.' She did not say this to mean she was the last word on this point, but with the troubles and the good work of SAPS, she did not think that giving the Register to them would be a good idea. To women in particular, the Register is an asset which is very important. Women do not want it to be moved to the police. The police have their own issues, which women appreciate that the police will handle properly. She was not saying that the police will be bad at managing the Register, they would also be good; however, in this case, Members prefer that it remain with the Registrar.

Adv. Breytenbach said that she understood where Members were coming from. However, the current NRSO had failed where it was now; whereas the police have a sophisticated system which would need to be tweaked minimally to accommodate the Register. The Committee needs to get the police working well on this and then it would be the natural location for the Register.

Ms Yako asked Adv Breytenbach if it would not be possible to link the SAPS system with that of the register; so that the police are aware of updates on sexual perpetrators.

Ms Newhoudt-Druchen said the Committee was previously in favour of transferring the register to the police. However, after today's Department responses, she was not sure. She asked if there was a way to strengthen the current sexual offences register. The options added to section 42 would then not apply to the police — such as dealing with an "interested person". If all these amendments cannot be applied if the Register is transferred to SAPS, this concerned her.

Ms Mofokeng asked if the two can be linked, as it could not be left just to the police. The challenges with the current register are a problem and cannot be left open.

Mr Du Preez apologised to Members as he misunderstood Ms Newhoudt-Druchen's question. He was under the impression that the question was if a provision like this would be applied to the SAPS 69 record at the Criminal Records Centre. He replied no because what happens currently is that any person may apply for another person's criminal record. However, what is important to note is the sophistication of the Criminal Records Centre. It is important to remember that the only place for positive identification of a person’s previous convictions is through the Criminal Records Centre as they use finger prints, which are the most reliable form of identification in the country. Even if a person changes their name or identity, they cannot change their fingerprints. That was the first important matter to clarify.

Further, the Department wants to clarify that Chapter 6 currently does a few things. Firstly, it creates the Register, but more importantly, it defines who vulnerable persons are. Together with this, there is the prohibition; which is the most important part of Chapter 6 which is about protection of the current vulnerable group and which will be extended to include additional vulnerable persons. If the Register is closed down, Chapter 6 will still contain the definition of vulnerable persons and the prohibitions in respect of employment, etc. As far as the function of the Criminal Records Centre is concerned; it would be business as usual. Anecdotal information which it has at the moment is that the Centre issues about a million clearance certificates per year. Therefore, if reference is made to a sophisticated system; this is entirely correct.

On the request that the two systems should be linked; he spoke under correction as it might be better to ask the Registrar but he was aware of the fact that in the past there were plans for the two systems to speak to each other; however, it amounted to a lot of money. He did not have the figures available. However, the Department could not see if it would serve any useful purpose for the two systems to talk to each other; because the source of convictions is the courts. The current Chapter 6 places an obligation on the clerks and registrars of the courts to update the register. For all intents and purposes, the protections of Chapter 6 will remain in Chapter 6.

Ms Maseko-Jele said there was a feeling that when it moves to the police, it would be treated like any other criminal case that the police had. Expense concerns cannot be equated with the lives of women that have already been killed. She asked how expensive it would be and if it was comparable to loss of life.

Ms Ina Botha, Principal State Law Adviser, trusted she would not confuse the Members with what she said, but she felt that it was very important that a few aspects are taken into account when the Committee makes the decision on whether the Register must be retained or if employers should get a clearance certificate from SAPS directly.

Firstly, Mr Du Preez raised the point of where the information was coming from that is present in the Register. The information came from SAPS. The Committee may recall that in the Act, there is retrospectivity about the names of perpetrators being included. This was problematic especially because it was limited to children and mentally disabled persons. Normally on a SAP 69, there is no indication if a person was found guilty of raping a child or mentally disabled person for example. The information was not readily available and the Registrar was also dependent on the police to get this information. The clerks of the courts are now required to send this to the Registrar as well.

She asked that the Committee think about the fact that, although there may not be many, there are already perpetrators who have served their sentence and whose names have been removed from the Register. The law promised them that if they serve a particular term of imprisonment, their name can be cleared and then they can become a teacher again. This will need to be taken into account as the mere removal of the name from the NRSO does not mean that the offence is removed from the police register. This is why if the transfer is made, the Committee needs to consider how to deal with the names that would be removed from the Register.

There are people who are almost finished their period of imprisonment, and the law will now be changing the rules of the game. It is Parliament's prerogative to change the law according to changing circumstances. This must not be forgotten. It was important to look at these persons who might have already qualified and yet have not asked for the removal of their names from the Register, for whatever reason. Even after completing the time to qualify for removal from the Register, the SAP 69 will still reflect the sexual offence. The implication is using the example of a teacher, the school principal will look at the police clearance certificate and see the sexual offence on the certificate although the prison sentence has already been served. One of the concerns raised during the public comments was how to regard this prohibition or obligation if you are found guilty of a sexual offence against a child or a mentally disabled person. Some public submissions argued that the prohibition that you cannot be a teacher for a certain period of time depending on the nature of your offence, forms part of your sentence. It may well be that the sentence is not the one imposed by a magistrate but as one given by Parliament through the Act.

The Chairperson interjected saying that for the Department to be helpful; it should be packaged differently as Ms Botha was giving so much information it might confuse the Committee. He asked that they begin by speaking to the location of the register.

Adv Breytenbach asked to revisit the location of the Register. She understood Members' concerns. She agreed with Mr Du Preez that she did not see the purpose of the two systems talking to each other in answer to Ms Yako's question. One system should be sufficient.

What needs to be made 100% clear is what happens in practice when someone is prosecuted and convicted. Prior to sentencing, the police produce what is called an SAP 69 which is the criminal record of the accused. It would contain all of the previous records of the accused. This gets presented to the court in aggravation of sentence. It then goes to the court orderly and the new sentence is added to it, so it is an immediate capturing of information. It then goes to the police at their SAP 69 Register, where the register is updated. There is therefore very little opportunity for a broken-telephone information loss. It is very immediate and very secure. The SAP 69 system is a sophisticated system and compares well internationally. The information is available on request and upon good reason; therefore, not anybody can wander in and demand information from the SAP 69. However, if one has a reason for requesting the information then it is available and provision can be made for this. She urged Members to think about it more carefully. The police register is the most sophisticated register that there can be at the moment and it is the most immediate system of capturing information and keeping it secure. It is a very useful solution to the problem of a lapse of information.

The Chairperson asked what the challenge is with the current Register.

Adv Breytenbach replied that there are many issues. First, it is not up to date. It is unreliable, incomplete and incorrect. All of these things pose great risks on both sides of the spectrum. It is also not as secure as one would like it to be. Whereas the register held by the police, ticks all of those boxes. With the greatest respect she concluded by saying that in her opinion, the current Register is not one worth having.

The Chairperson suggested that given the information the Committee had received, Members needed to digest it. He recalled that even when the GBV Bills were first proposed, there was an admission that the current Register is not working. He suggested that Members digest the information received properly and when the Committee returns, Members give their considered views on this matter to find a solution that will not undermine the fight against GBV.

Adv Breytenbach noted the added safeguard of the police is that every criminal case has an investigating officer. It is the duty of the investigating officer to ensure that the SAP 69 gets updated. There is a belts and braces approach as it goes via the route of the court orderly on the SAP 69. It also goes via the front of the docket and the prosecutor fills in the front of the docket; then it proceeds via the investigating officer to the SAP 69. There is therefore a much better chance for the information to be correct and timeously updated.

Ms Newhoudt-Druchen was concerned about paedophiles that move to South Africa from overseas and asked if the SAPS system has the capacity to access those records or if it only covers South Africans who have committed these crimes.

Ms Maseko-Jele asked if someone at the Register can come and answer the questions as the Committee needs to understand why the Register is not working. She did not know if this was asking too much.

The Chairperson said that before the Committee moves to the drafting stage, it needs a correct understanding of the functionality of the system. It was important that, as legislators, they gain a full understanding of the sector.

Adv Breytenbach replied to Ms Newhoudt-Druchen's question that there is a system which is internationally acceptable. Interpol runs a facilitation system where the different police departments around the world can access the information relatively easily, so such a system does exist.

The Chairperson asked if the current Register has these sophistications.

Adv Breytenbach replied that it certainly did not. Interpol is the International Police Organisation and is available only to police departments around the world.

Ms Yako agreed that the Committee should have all the entities come and inform it so that it can make an informed choice on how it wants to oversee the current Register, if it is not functioning well.

The Chairperson said that this would be arranged as soon as possible. The programme was full; however, he did not think it would take long for them to hear a presentation on the current Register.

Mr Du Preez said that there might be a slight delay as even if he worked 24 hours a day, it might take time to work on the amendments. When one works on amendments, it needs to be 100% accurate. He wanted to indicate this at this early stage.

The Chairperson asked if this was because the Committee needed more information.

Mr Du Preez replied that this was not so. He was only considering the work he had to do in transforming the working document into amendments to be processed by the Committee.

The Chairperson said that Members appreciated the pressures he was working under. If it puts too much pressure on him, he will present something substandard and this would reflect back on the Committee.

Mr Du Preez replied that he had completed what he had to present; he did not know if there were other questions which Members wanted to ask. He thanked the Committee for its time.

The Chairperson asked if Members were happy with the comments and amendments presented so Mr Du Preez can start cleaning the document for presentation.

Ms Mofokeng appreciated Mr Du Preez' honesty in saying that he would not be able to complete the work quickly. She knew that a number of citizens thought that the Bill would be adopted by the end of March; however, it is very clear that because quality is needed, things might not be the way that everyone expects. Appreciating all the challenges and the need for more information, she felt the Committee needed to thank Mr Du Preez, even if a lot of clarifications were needed.

Ms Maseko-Jele supported this.

Ms Newhoudt-Druchen agreed and thanked Mr Du Preez. She requested that the changes be made and Working Draft 5 sent to the Committee.

The Chairperson commented that he was not sure how the Committee could be expected to finish the Bills. On 11 12 and 13 March, Members are expected to sit in the House according to the three-line whip. The GBV Bills are expected to be completed by 19 March and if the Committee is not able to, it needs to approach the House with reasons. It has the concerns raised by Mr Du Preez about the urgency of the Bills. However, at no point was it willing to compromise quality just to meet a deadline. The Committee would conduct interviews for the South African Human Rights Commission (SAHRC) on 9 and 10 March and fit in the Domestic Violence Bill. He hoped that this would put the Committee in a position to see if it can pass the Bills this term. He thanked Mr Du Preez and his team. He knew Mr Du Preez worked through the night and on weekends to ensure that women and children live free from the threats they were working to eliminate. He thanked him for his team's dedication. The Committee would be in contact soon on when the Registrar and SAPS presentation would be made. This would also give him space to work on the document so that it had a version ready to be adopted by the Committee. He excused the Department.

Correctional Services Amendment Bill debate or adoption deliberation
The Chairperson noted a housekeeping matter on the Correctional Services Amendment Bill which the Committee passed. Apart from the Economic Freedom Fighter's (EFF) reservation, all other parties did not have a challenge with the Bill. He asked if Members wanted to make declarations or if the Committee wanted a full-blown debate on the Bill when it was considered by the House on 9 March.

Ms Y Yako (EFF) said perhaps the Committee should have a full-on debate.

Mr R Dyantyi (ANC) said given the content of the Bill and the amount of work the Committee was dealing with, he thought that Ms Yako and the EFF's reservation could be done in declaration form. He suggested that it did not have a full debate as there is not much to debate about.

The Chairperson thanked him and said the Bill was a 'paragraph' Bill and in reality, the reservations were based on the fact that Ms Yako still needs to consult with her party. However, there were no general objections to the Bill.

Adv Breytenbach said that that she supported a declaration and not a debate.

Mr Swart supported a declaration. It was also a challenge for him as he was a Whip. The Programming Committee has indicated that the GBV Bills should be on the plenary programme before the end of the term, although they are not on the programme yet, with the Criminal Law one being removed. He did not think that a lot of pressure should not be put on the drafters. If it came to the point where the Committee needs to justify the reason for requesting an extension, the ACDP would support the Committee, although there is lots of pressure from the Whipery to finalise the Bill.

Ms Mofokeng said she wanted to encourage Mr Swart’s work which she had seen him work on and asked that he send it to Members. She looked forward to having better ways of dealing with things and appreciated what he sent. She was a member of the ANC and a Christian; she felt she would be able to engage those on the spiritual side.

Mr Swart said he appreciated it.

The Chairperson thanked all Members for the spirit they always displayed. Members took their work very seriously and it made extra effort to ensure that it gave of its best to South Africans. He noted that this term had been very difficult as it had been asked to go beyond the call of duty it rose to the occasion. He thanked the Committee's support staff and all the organisations that have always made the effort to watch the Committee and give useful feedback, so that it is able to give guidance.

The meeting was adjourned.