In this virtual meeting, the Committee was advised on the constitutionality of the Traditional Courts Bill. It was also briefed by the South African Police Service (SAPS) and the Department of Justice and Constitutional Development on issues relating to the possible transfer of the National Register for Sex Offenders (NRSO) to the police’s criminal records centre.
The Parliamentary Legal Advisor explained that the Traditional Courts Bill would pass constitutional muster. Although the Bill no longer contained an explicit opt-in or opt-out clause, it was still based on voluntary participation. Moreover, in the context of customary law, a curtailed right to legal representation was consistent with the Constitution, and the Bill was not uncompliant with Section 35(3) of the Constitution entrenching the right to a fair trial. The Committee was advised that it could not propose further amendments to the Bill especially if they fell outside those proposed by the NCOP. The DA believed that the bill was unconstitutional and emphasized that that it would not support the Bill in its current form. The Committee agreed to deliberate on the bill after the recess break.
SAPS reported that its criminal record system had generated 375 095 police clearance certificates and 929 495 police clearance reports during the 2019/20 financial year. There were 97 local criminal record centres nationwide, of which 60 were equipped with the automated fingerprint identification system, and 36 service points. Service delivery and decentralisation efforts had been constrained by inadequate human, physical, and financial resources. At the same time, the workload was increasing, due to increasing demand, duplicate requests, and additional legislative obligations. According to preliminary estimates, SAPS would require additional amounts of between R26.6 million and R120.4 million in order to administrate NRSO.
The Department of Justice and Constitutional Development reported that NRSO had made substantial progress, although its performance was not yet optimal. The complete overhaul in 2018 had allowed for data purification, and the Register was now performing its vetting and removals functions. It had received historical convictions data from the police and recently from the Department of Correctional Services, but not from the Department of Health or the Department of Home Affairs. Centralisation and inadequate human capital also presented challenges to service delivery. A resource plan had been developed to implement the extended mandate provided for by the Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill. The plan, which would cost nearly R38.7 million over three years, would involve personnel appointments, upgrades to the electronic system, and the establishment of an Office of the Sexual Offences Register to be rolled out to all nine provinces.
The Chairperson said that the presentations by SAPS and the Department of Justice ad Constitutional Development had not sufficiently equipped the Committee to make a decision about NRSO. The delegations would be invited back before the Committee after the recess and would be expected to present more fully developed suggestions. Members were concerned that SAPS’s criminal records system was affected by resource constraints, especially personnel constraints and technological and network constraints. They also said that the Department’s presentation did not reflect the true extent of NRSO’s difficulties, and were especially concerned about NRSO’s capacity and the success of its efforts to integrate with other entities in the criminal justice system.
The Chairperson noted that the Committee was without a quorum and could not adopt the Committee minutes; they could be dealt with in a future meeting.
The Chairperson suggested that the Committee begin by hearing the presentation on the Traditional Courts Bill, because Adv G Breytenbach (DA), the only member of the opposition in attendance, had to leave the meeting early for medical reasons. He said that the nature of the Bill made it important that multiple parties were present to discuss the legal opinion.
Traditional Courts Bill: legal opinion
Ms Phumelele Ngema, Parliamentary Legal Advisor, presented the legal opinion on the Traditional Courts Bill. She said the Chairperson had requested advice on two legal questions, one procedural and the other substantive. She would begin with the procedural question, which was more straightforward.
The Committee had requested advice on whether further amendments to the Bill were possible, especially if they fell outside the provisions amended in the D version. The Committee had wanted to know whether it could propose further amendments.
Ms Ngema said it was clear that the Committee could not propose further amendments. The process was guided by National Assembly (NA) rules 311 to 314. Under rule 311, the Committee could not propose further amendments to a Section 76 Bill that had already been considered and amended by the National Council of Provinces (NCOP).
NA rule 312 required the Committee to deliberate on the NCOP proposals and make recommendations in a report to the NA. If the NA rejected the Bill as amended by the NCOP, there would be a process of mediation. If the Bill was approved in mediation, it would be sent to the President thereafter.
The Chairperson had also requested a legal opinion on the substance of the Bill – specifically, on the constitutionality of the Traditional Courts Bill with reference to the opt-in or opt-out principle that had been removed in the Bill’s latest version. Other Members had raised concerns about the constitutionality of restricted legal representation.
A number of Traditional Courts Bills had been brought before Parliament, starting in 2012 (see here and here). In June 2018, the Committee had been presented with a legal opinion advising that removing the opt-out provision of clause 43A of the Bill would have rendered it unconstitutional, since the Bill would then have allowed choice to only one of the litigants. However, that opinion had been presented prior to the final amendments of the B version.
Ms Ngema said that the question was whether the Bill in its current form, as amended by the NCOP, would pass constitutional muster. The question depended on constitutional provisions relating to the subject matter.
The opt-in or opt-out clause
The Bill as introduced by the Minister had included an explicit opt-in or opt-out clause. It allowed for a person summoned before a traditional court to make a choice – either to proceed with the traditional court, or to be referred to the “normal” courts as outlined in Chapter 8 of the Constitution. That clause had been removed when the Bill was amended by the Office of the Chief State Law Advisor, working with the Department. Those amendments had been made in line with the deliberations and instructions of the previous Committee, who had accepted the amendments.
Ms Ngema added that related questions about the explicitness or implicitness of legal provisions were raised regarding proposed amendments to the property clause of Section 25 of the Constitution. Such questions were undecided.
The constitutionality of the opt-in or opt-out clause had to be considered in light of Section 30 and Section 31 of the Constitution, which fell within the Bill of Rights. The right to voluntary association and practice of culture were derived from those provisions. Section 30 entrenched the right to language and culture, providing that everyone had the right to participate in the cultural life of their choice. Thus following a traditional lifestyle could be seen as a matter of choice. Section 31 entrenched and protected the rights of cultural, religious, and linguistic communities. The drafting of Section 31(1) suggested a collective right, as opposed to an individual right.
Ms Ngema said that, in her view, the Bill had stemmed from such constitutional provisions. The Department, the Minister, and the Executive had wanted to give clear effect to cultural rights. There was already legislation, passed under the previous regime, that legislated and regulated the operation and jurisdiction of traditional courts. Through the Bill, the legislature was making it clear that there existed quasi-judicial structures – traditional courts – which pursued rehabilitative and restorative justice, which were directly accessible to people, and to which people could bring their grievances. People had a right to choose to bring their grievances before a traditional court. The question was whether that right was balanced against the right of the other disputant to choose not to be trialed by a traditional court.
The Bill allowed for the traditional courts’ right to continued existence, as outlined in Chapter 12 and Schedule 6 of the Constitution. It also allowed for the right – held by both parties to a dispute – to choose whether to live a traditional lifestyle. The Bill was also clear that traditional courts would be independent and impartial structures, as required by Section 34 of the Constitution, which provided the right of access to courts or other tribunals for dispute resolution.
The objects of the Bill, discussed in clause 2, were instructive. Clause 2(b)(ii) provided that the Bill sought to affirm the role of traditional courts in terms of customary law by enhancing access to justice by providing a forum for dispute resolution in accordance with the principle of voluntary participation by all parties.
Ms Ngema concluded that the Bill would pass constitutional muster even without the explicit opt-in or opt-out clause, as the Bill was still based on voluntary participation.
Restricted legal representation
Ms Ngema said that second substantive question related to the constitutionality of the prohibition on legal representation.
Section 35(3)(f) of the Constitution provided that every accused person had a right to fair trial, including the right to choose, and be represented by, a legal practitioner, and to be informed of that right promptly. The state had the obligation to ensure that the accused had access to legal representation, if necessary at the expense of the state through Legal Aid.
However, there were other possible solutions to address the issue of legal representation in traditional courts. During past deliberations, the Department of Justice and Correctional Services had advised Members that people with a legal background would be allowed to represent litigants, but would not appear as legal representatives during traditional court proceedings. That is, litigants could choose a representative, but not a legal representative “as we know them.” Moreover, the criminal jurisdiction of the traditional courts encompassed merely minor offences, in light of Schedule 2 of the Bill.
Legal representation was expensive. Traditional courts would be run in rural areas where people lived in poverty and could not afford legal fees. Those people sought accessible and speedy dispute resolution procedures.
Legal representation in traditional or tribal courts had historically been prohibited. Ms Ngema said that there was precedent – for example in legislation dealing with the Commission for Conciliation, Mediation and Arbitration (CCMA) and other dispute resolution bodies – which curtailed or left open-ended the right to legal representation in certain forums. She emphasised that traditional courts differed from the conventional courts established by Chapter 8 of the Constitution. Chapter 8 of the Constitution dealt with courts and the administration of justice. Section 166 of the Constitution set out what courts of law were, as opposed to courts and tribunals under Section 34 of the Constitution. Section 166(e) stipulated that “courts” included “any other court” established or recognised in terms of an Act of Parliament.
Schedule 6, item 16(1), read with sub-item (6), of the Constitution provided for the continued existence of all courts, including courts of traditional leaders, along with the obligation to rationalise their structure, composition, functioning, and jurisdiction. In Re Certification of the Constitution of South Africa, 1996, the Constitutional Court said that traditional courts functioning according to indigenous law were not entrenched beyond the reach of legislation. In light of this, Schedule 6 and other provisions of the Constitution empowered legislatures to enact legislation recognising traditional courts either as courts in terms of Section 166(e) or as alternative dispute resolution tribunals in terms of Section 34. The Bill clearly took the latter option.
Sections 20 and 21 of the Traditional Leadership and Governance Framework Act, No. 41 of 2003 – which was envisaged in terms of Chapter 12 of the Constitution, enjoining the recognition of traditional leaders – granted traditional leaders a continued role in administering justice. However, an irreconcilable challenge would arise if traditional courts were placed under Section 166(e) of the Constitution with regards to the appointment of traditional leaders as judicial officers. The appointment of traditional leaders was hereditary through customary law dictates.
A curtailed or prohibited right to legal representation was arguably constitutional, when traditional courts were determined as forums for dispute resolution, envisaged under Section 34 of the Constitution, rather than as courts of law, under the judicial system of Chapter 8 of the Constitutional. The envisaged proceedings of a traditional court would be constitutional, especially given the appeal and review process provided for in clause 12 of the Bill.
Ms Ngema concluded that the prohibition on legal representation did not make the Bill unconstitutional and that it would not be found uncompliant with Section 35(3)(f) of the Constitution.
Discussion: Traditional Courts Bill
The Chairperson said that the process as outlined by Ms Ngema was incomplete – it presupposed that mediation would result in an agreement. There was also the possibility that mediation would not resolve the disagreement.
Ms Ngema replied that she had described the broad process. In fact it was a two-pronged process, or two processes. If the NA approved the Bill as amended by the NCOP, the Bill would be passed and sent to the President; this was the normal process. However, if the NA rejected the Bill as amended by the NCOP, there would be mediation.
The Chairperson said that his question was about what would happen if mediation failed.
Ms Ngema replied that under NA rule 315, the Bill would lapse if mediation was unsuccessful; the NA would decide not to proceed with the Bill.
Dr W Newhoudt-Druchen (ANC) asked about the composition of mediation committees: if the Bill went to mediation, would mediation involve members of both the NA and the NCOP? In addition, who had to approve the results of the mediation process? Would both houses have to approve it before the Bill was sent to the President?
Dr Newhoudt-Druchen asked Ms Ngema to clarify the meaning of the opt-out and opt-in options and the impact of each on the Bill.
Adv Breytenbach disagreed strongly with the conclusion that the Bill was constitutional. The Bill was unconstitutional. If the Committee approved it, and the NA passed it, the Committee would suffer the “great humiliation” of being known as the committee which had supported an unconstitutional bill fundamentally affecting the rights of the vast majority of South Africans. She urged other Members to “very seriously study up” on the Bill, including its reach, implications, and constitutionality. She urged them to carefully consult the analysis that had been sent by the University of Cape Town. The Committee should discuss the matter at a later stage.
Adv Breytenbach asked Ms Ngema why the opinion differed so much from the last legal opinion, which had found the Bill to be unconstitutional. What had changed the advisors’ minds? There had not been substantial changes to the Bill itself since then, except that the opt-out clause had been removed, on the advice of the previous Committee and to the objection of Members from opposition parties.
Adv Breytenbach said that Section 30 and Section 31 of the Constitution did not allow for or justify the removal of the opt-out clause. She asked Ms Ngema where the Bill guaranteed choice. In fact, the Bill did not guarantee choice or voluntary participation. The Bill amended customary law and removed the aspect of voluntary participation. Ordinary South Africans – the most vulnerable, and those with the least access to legal advice and representation and to education – were those who would be most affected by the Bill and would be left with no choices. Those who did not wish to subject themselves to the authority of a traditional court would have no choice in the matter. The only “wriggle room” was to consult a Justice of the Peace, who had no power under the Bill. Justices of the Peace could only refer unhappy litigants back to the traditional courts to which they objected. Such litigants would have to go through the entire traditional court process – a process to which they objected and whose authority they did not recognise – and, if unhappy with the decision, would have no recourse but to try to persuade a Magistrates’ Court to hear the matter anew. This would involve undue time, effort, difficulty, and trauma. It made “no legal sense” not to have an opt-out clause. The right of choice was guaranteed by the Constitution and the Bill of Rights, but was not guaranteed by the Bill.
She was “deeply troubled” by the opinion and the Bill. The Bill was “exceptionally patriarchal,” did not sufficiently acknowledge the rights of women, and did not allow choice, which in her view rendered it unconstitutional. There was “no way in the world” that the DA would support the Bill in its current form.
The Chairperson reminded Members that the Committee’s present task was to address the legal opinion. The Committee would deliberate on the Bill itself after the recess.
Ms Ngema was disconnected due to loadshedding. The Chairperson suggested that since there was no immediate pressure on the Committee to process the Bill, they would reschedule Ms Ngema to field questions in a future meeting.
SAPS: Briefing on the functioning of the criminal record system
Major General Lesetja Mangale, Head of the Criminalistic Bureau, South African Police Service (SAPS), presented on behalf of SAPS. He said that SAPS had been asked to brief Members on the process of doing criminal record checks using fingerprints, in order to see whether the criminal record system could assist with the National Register for Sex Offenders (NRSO).
Major General Mangale briefly discussed the system’s legislative framework. The criminal record system had been governed by the Criminal Procedure Act until it was amended by the Criminal Law (Forensic Procedures) Amendment Act, 2010 (Act No. 6 of 2010). The latter prescribed the acceptable uses of the system and the circumstances in which criminal records could be checked.
Major General Mangale described the differences between police clearance certificates (PCCs) and police clearance reports (PCRs). A PCC, issued on behalf of the National Commissioner, was required for international travel, international employment, and immigration and emigration. A PCR was required for employment within South Africa, licensing and permitting, and expungement of criminal records. PCCs displayed only the convicted criminal record, but PCRs displayed pending criminal cases as well as convictions. However, a PCR could not display ongoing criminal investigations involving the applicant – the information was only recorded once the applicant had been formally charged.
Applicants for both PCCs and PCRs were required to have a complete set of fingerprints taken by a police official. However, PCCs could only be issued at a national level in Pretoria, partly for security reasons, whereas the issuance of PCRs was a decentralised service, performed at local criminal record centres (LCRCs) nationwide. The PCR was cheaper – it cost R70, rather than R150 – and had a shorter processing time – one to two weeks, rather than three. Thus SAPS would advocate for PCRs to be the preferred document: they were more accessible and more economical.
Major General Mangale added that applicants for PCRs were required to complete an indemnity form. SAPS sought to protect the state against litigation by applicants, who might otherwise allege that SAPS had shared their information with prospective employers or licensing authorities without permission.
The criminal record and crime scene management (CR&CSM) component consisted of 97 LCRCs nationwide, of which 60 were equipped with the automated fingerprint identification system (AFIS), and 36 service points. In the 2019/20 financial year, the system had generated 375 095 PCCs and 929 495 PCRs. However, the number of personnel working on each had been declining. In 2019/20, there were 115 staff working on PCCs and 482 staff working on PCRs, down from 131 and 497 respectively in 2017/18.
The system faced various challenges, including:
Insufficient human and physical resources;
Insufficient budget allocation;
Increasing workload, due to additional legislative obligations placed on SAPS without proper consultation with SAPS;
Evolving requirements for the services due to different legislation requirements, e.g. some legislation required reports to capture a victim’s race, gender, or age;
Increasing demand resulting in duplication of requests of PCR and PCC;
Impact of COVID-19 on the services rendered;
Evolving technology and inadequate network infrastructure; and
Constraints in further decentralisation due to capacity (human, financial and physical resources).
Regarding technology and network infrastructure, Major General Mangane said that the fingerprints system was image-based, which strained the network and increased processing times. In addition, not all LCRCs offered all services, depending on the availability of network infrastructure in the area.
He said continuous public awareness was important in guiding applicants and employers to apply for the correct documents. For example, some people applied for PCRs and then applied for PCCs upon seeing that the PCR included pending charges; this resulted in duplicate requests.
Major General Mangane also reported on estimates of the additional resources that would be required if NRSO was transferred to the criminal record system. The requirements depended on whether PCCs or PCRs would be used and on the frequency of applications. The preliminary estimates – pending confirmation by a feasibility study – included:
Additional compensation: R18 648 300 for PCC, or R90 444 255 for PCR;
Additional human capacity: 100 appointments for PCC, or 485 appointments for PCR;
Additional goods and services: R5 million for PCC, or R20 million for PCR; and
Additional capital assets: R3 million for PCC, or R10 million for PCR.
Discussion: SAPS criminal record system
Ms J Mofokeng (ANC) said that the presentation by SAPS provoked deeper thought about the future. Adding NRSO to the system’s current workload could be a challenge. She asked for clarification about the spread of LCRCs and service points (see slide 3). Only 60 of 97 LCRCs were equipped with AFIS, but AFIS was required for most of the system’s work. What was the challenge – why were all the centres not “serviced in the right way”? She appreciated that SAPS had clearly indicated its resources challenges.
Major General Mangale replied that a number of factors were relevant. The centres required facilities, network infrastructure, computers, and staff to man the computers. Facilities were often a challenge to acquire. Sometimes a service point was opened in order to try to close the gap between a particular local criminal records centre and a remote area. Service points were only made “fully-fledged” once the workload permitted having a certain number of personnel. Sometimes an LCRC was opened with only ten personnel, for instance, on the basis of a work study, and the workload became strenuous and had to be transferred to other centres.
Ms Mofokeng asked for clarification. Was the problem a lack of resources?
Major General Mangale replied that service points required infrastructure, facilities, and human resources to become fully-fledged. Sometimes a given police station did not allocate sufficient office space. For instance, three offices were not enough, given that the mandate included crime scene processing and administration of criminal records, and given that the separation of site functions had to be maintained at all times.
Ms Mofokeng asked about the use of courier services to deliver applications and certificates, especially to and from the office in Pretoria (see slide 6). Was SAPS not concerned that materials would be intercepted during this process? Why was it not possible to print the certificate locally, once it had been authorised in Pretoria? Such a system was being implemented for vehicle licenses.
Major General Mangale said that the possibility of automating the process of issuing police clearance certificates was something to be “explored.” He could not give a definite answer because it would require technology management. Automation “should not be impossible,” but it was dependent on the technology at hand to SAPS. The technology available to the end-user was a particular issue: the office in Pretoria, or certain LCRCs, might be prepared to automate, but local police stations might have insufficient bandwidth.
Ms Mofokeng said that automation was “the way to go, whether we like it or not.” It was for the betterment of the country and necessary for service delivery. She asked for clarification: had there been any problems with the courier services?
Major General Mangale replied that there had not been problems. The applicant paid for the courier service, and SAPS also paid in some instances when work was delivered between two LCRCs or between a police station and an LCRC.
Ms Mofokeng asked Major General Mangale to explain what he had said about people applying for PCCs once they learned that PCRs included pending charges against them. She was confused: where did people see the pending cases? Would better communication not prevent this from occurring?
Major General Mangale replied that the PCC only displayed convicted information, but PCRs reflected pending cases where the applicant had been charged and was awaiting trial. That was why PCCs were not the preferred document for teachers and government employees. SAPS was in the process of reviewing the information displayed on PCCs. There was the suggestion that accused information should be included alongside convicted information regardless of the purposes for which the applicant was using the clearance.
Ms Mofokeng said it was clear that the system had many challenges; the presentation had indicated that honestly. The criminal records system was “far from the fourth industrial revolution.” She was concerned that evolving technology and network infrastructure was listed as a challenge for the system (see slide 10). She was also concerned about the continuous decrease in personnel (see slide 8). How would SAPS deal with NRSO if it was transferred there?
Major General Mangale replied that the phrase “evolving technology” had been used “consciously.” In other countries, the network infrastructure was so good that they could use live scans and eliminate paper. Applicants could have their fingerprints taken at a local police station and their fingerprints and applications could be admitted to the local criminal records centre digitally.
He said that NRSO would not necessarily constitute “additional work” for the system – it would not be “additional in the sense of additional.” By the time someone made an application to NRSO (for example, to have their name removed from NRSO), the criminal records system had usually already encountered them. For example, the applicant might have applied for a PCR in the past, or NRSO might have submitted their fingerprints to SAPS for confirmation that they did not have other pending cases or convictions on records, or SAPS might have administrated their criminal record report (known as a SAP 69) in recording their conviction.
Ms Mofokeng asked what Major General Mangale meant in saying the responsibility would not be “additional in the sense of additional.” She said that the Committee understood and sympathised with the challenges being discussed.
Major General Mangale replied that he was referring to the fact that, in any case and as part of the vetting or clearance processes, SAPS would be issuing reports. When an individual made an application to NRSO, they began by requesting information from SAPS, and NRSO requested a criminal record report to confirm whether the individual had cases awaiting trial or other convictions that might affect the decision process. At some stage, either before or after the processes of NRSO, there would already be SAPS processes regarding a given sex offender. In that sense NRSO processes would not necessarily be additional work for SAPS.
Regarding technology, Ms Mofokeng noted that SAPS had been studying the successes of other countries. But why study if they could not implement? She had seen officials travel overseas to observe other countries’ models, but when they returned they did not “do anything about it.”
Major General Mangale replied that SAPS was benchmarking with the hope that the fiscus and physical infrastructure would improve, allowing the system to “move with time.” SAPS aspired to improve its criminal records services and bring them closer to the community. Also, benchmarking would eventually enable automation. For example, the implementation of live scans of fingerprints at police stations would constitute automation – it would remove the need to manually submit fingerprints to the criminal records database for searching. Unfortunately the system was “not there yet.”
Dr Newhoudt-Druchen asked whether all crimes – from petty crimes like pickpocketing to big serious offences – were recorded on PCRs and PCCs. Did they include sexual offences, or were those only recorded on NRSO?
Major General Mangale replied that currently the PCR and PCC reflected all convictions, including minor and serious offences, sexual offences, and contract and property offences. The exception was that some minor transgressions were not recorded, for example in cases where the applicant paid a fine before being charged. Most traffic infringements fell in this category, because they were considered mere infringements.
Major General Mangale added that, as required by legislation, when SAPS shared information with NRSO, it filtered the information to share only information relating to sexual offenders. They had provided NRSO with historical criminal conviction records and information indicating whether there were any new or pending charges.
Dr Newhoudt-Druchen said that, in her understanding, the individual for whom a report was generated had to apply for the report, because they had to provide their fingerprints – the prospective employer could not apply on their behalf. She was concerned that prospective employees could prevent employers from knowing their criminal record, even if they were applying to work at a crèche or school.
Major General Mangale replied that employers could apply on behalf of individuals. That was why SAPS required the individual to complete an indemnity form – to forestall any litigation on the basis that SAPS had illegally issued the individual’s information to third parties like employers. However, in such cases, the onus was on the employer or other third party to ensure that the individual’s fingerprints were taken by a police officer. The employer could then submit the fingerprints on behalf of the individual. In fact, that was usually part of the promotion and appointment process for government employees: during the screening process, the employee’s fingerprints were taken, and the results of the application for clearance were sent to the employer, not necessarily to the employee. Most licensing authorities operated the same way: applicants’ fingerprints were taken at the licensing centre and SAPS provided feedback to the licensing authority.
Dr Newhoudt-Druchen asked whether SAPS worked with the courts in the police clearance processes. At a previous meeting, Adv Breytenbach had commented on the efficiency of the processes: once someone was charged or sentenced in a court, the information was immediately sent to SAPS. How exactly was this information sent immediately to the SAPS records? Although the presentation had reported on the process of acquiring a report, it had not reported on that aspect. As Adv Breytenbach had said in the past, the NRSO process should be as efficient as the PCC and PCR processes.
Major General Mangale said that SAPS worked directly with the courts in administrating criminal records. SAPS submitted criminal record reports to courts for sentencing and bail decisions, and the courts submitted the results of trials to SAPS, which updated its records accordingly. That process had not been included in the presentation because, in SAPS’s understanding, the presentation was to focus on the vetting processes that it would follow if it took over NRSO functions, not on details relating to the administration of criminal records.
Adv Breytenbach asked for more detail about the lack of resources mentioned in the presentation (see slide 10). Did the system need more human resources – staff – or were other resources also a problem? She still believed that the SAPS system was the correct place to house NRSO, but the Committee needed a better understanding of what additional resources were required to make it efficient.
Major General Mangale replied that the system “obviously” required additional human resources capacity. The presentation had shown a reduction in personnel. A request had been advanced to SAPS leadership, but there were competing requirements like preventing and investigating crime. There was also the compensation budget, a government initiative. The issue of human resources capacity was not confined to the criminal records processes.
Ms Mofokeng asked whether the system should include compartments or sections to specify which category a given clearance fell into. She was not convinced that SAPS could deliver if it took over NRSO. What could it do better? What must change? The presentation had discussed its challenges, but what could be done to address them and occasion improvements?
Major General Mangale replied that he might have misunderstood the purpose of the SAPS presentation. SAPS’s understanding was that the briefing should be confined to the question of whether SAPS would be able to do clearances in relation to NRSO. The criminal records systems did already have compartments where the service type was indicated – PCC, PCR, professional driving permit, and so on. He had thought that that was at the operational level and not relevant for the purposes of the presentation.
Ms Mofokeng asked whether there were currently backlogs in the system and, if so, how many and in which provinces.
Major General Mangale replied that there were currently no backlogs in PCRs. In PCCs, however, there was currently a high workload, possibly due to the change in lockdown alert levels. As of 16 March there were 30 000 PCC applications on hand. The system was behind its targets because of the high workload, but SAPS would ensure that there were plans to reduce the backlog.
The Chairperson declined to excuse the SAPS delegation from the meeting. SAPS should hear the briefing by the Department of Justice and Constitutional Development (DOJ&CD). It was important for entities within the criminal justice system to understand one another in order to inculcate a culture conducive to collaboration.
DoJ&CD: Briefing on NRSO
Adv JB Skosana, Deputy Director-General: Court Services, DoJ&CD, introduced Adv Praise Kambula, Chief Director: Promotion of the Rights of Vulnerable Groups, DoJ&CD, to present on behalf of the Department.
Adv Kambula reported on NRSO’s legislative framework and its key powers, duties, and functions. Its vetting functions required processing applications for clearance from individuals, employers, and licensing authorities. It also processed applications for the removal of the particulars of eligible sex offenders from the Register, and executed court orders for the disclosure of data. In addition, NRSO provided national statistics on sex offenders, which could be used for sex offender profiling. It reported to the Presidency on a monthly basis regarding an indicator in the gender-based violence and femicide (GBVF) national strategy plan. NRSO also provided data to SAPS, for the DNA database, and provided data for the consideration of applications for criminal record expungements made by convicted sex offenders.
NRSO received data from all courts nationwide and from SAPS, the Department of Correctional Services (DCS), and the Department of Health (DOH). It relied on the integrated justice system (IJS) transversal hub, an information and messaging platform that was already in operation between stakeholders in the criminal justice system, including SAPS, DoJ&CD, DCS, Legal Aid, the National Prosecuting Authority (NPA) and others. NRSO was using the hub to implement its Femicide Watch.
Adv Kambula said that, since NRSO had first been implemented in June 2009, the Department had struggled to resource it for optimal functioning. There had been “teething challenges” with data reliability, which had escalated over time such that by 2016 NRSO’s data was not usable and NRSO could not execute vetting or removals. NRSO was suspended for a year for a complete overhaul, completed in 2018. The data clean-up project had been finalised and the root cause of the difficulties addressed – the system now had the functionality to block data impurities.
NRSO was now able to execute its vetting functions and the removal of qualifying sex offenders. From November 2019, NRSO had been involved in the Emergency Response Action Plan (ERAP) spearheaded by the Presidency. Under the plan, and between November 2019 and April 2020, NRSO had processed 12 157 clearance certificates, many of them for court officials. During the COVID-19 pandemic, the capacity of NRSO had declined and it had processed only 3 919 clearance certificates. In total, it had removed the particulars of 1 573 qualifying registered sex offenders. Adv Kambula noted that very few offenders qualified for removal.
NRSO was registering current convictions and had registered historic convictions, using historic data from SAPS and about 18 000 historic data recently received from DCS. DOH had indicated that its system was not able to provide the particular data points required by NRSO, and the process of acquiring historical data from the Department of Home Affairs (DHA) had not yet begun. NRSO had experienced difficulties acquiring historical data and had expended significant resources on the purification of non-compliant historical data.
Other current challenges included inadequate human capital and the centralisation of NRSO’s functions. Adv Kambula said that because NRSO was managed at the national office, people in other regions struggled to access its services.
The Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill expanded the scope of NRSO to include all sex offenders, not only those who had committed offences against children and persons who were mentally disabled.
Adv Kambula discussed the resource plan for the implementation of the extended scope of NRSO, which would involve establishing the Office of the Sexual Offences Register within the national office and progressively rolling it out to all nine provinces. This would ensure decentralisation of NRSO functions. According to the resource costing, the total cost of the medium term expenditure framework (MTEF) would be nearly R38.7 million from 2020 to 2023, including R35 million for employee compensation. The Department had begun the process of shifting personnel from over-populated branches to NRSO. The electronic Register had to be upgraded in order to accommodate new variables, as required by the Bill, and the upgrade would commence in April 2021 with IJS’s assistance.
Regarding DoJ&CD’s stewardship of NRSO, Adv Kambula said that the Department had “gathered a lot of experience” in establishing NRSO. NRSO was “beginning to gain momentum.” She said that the Department had invested millions of rands to upgrade NRSO system, and that the system was built into the Department’s electronic infrastructure in order to connect directly with courts. The Department was the primary data source for NRSO. In addition, the enactment of the Bill would make the process of data entry easier, since all convictions of sex crimes would be eligible for entry into the Register.
Adv Kambula introduced Ms Ntombizodwa Matjila, Director (Registrar), NRSO, to report in further detail on NRSO’s functions. Ms Matjila said that offenders were included on the Register by court orders conforming to form 5. The court order was made in the presence of the accused and the court explained the consequences to the accused – for example, that the accused would not have access to children or to people who were mentally disabled. The court clerk included the order in the integrated case management system (ICMS) and it was then sent to NRSO for approval before becoming an active entry in the Register.
Applications for clearance certificates followed two routes. Some individuals, usually prospective employees, applied in respect of their own particulars, using form 7. In other cases, applications were made on behalf of other individuals, using form 8. In the past year, many applications had been made by the South African Council of Educators on behalf of prospective teachers.
Convicted sex offenders applied to have their details removed from the Register using form 10. According to the legislation, offenders whose sentence exceeded 18 months, or who had two or more convictions, were not eligible for removal. Offenders whose sentence was between six and 18 months were eligible for removal after ten years, and those whose sentence was less than six months were eligible after five years. However, the new Bill tightened those eligibility criteria.
The Chairperson said that Adv Kambula was well-spoken and chose her words carefully, but he suspected that the problem was much deeper than conveyed. The issue was whether, amidst all the challenges articulated in the presentation and during “a state of emergency” like the COVID-19 pandemic, the DoJ&CD could be trusted with NRSO’s functioning in the short-term.
Adv Skosana asked to amplify and contextualise some of Adv Kambula’s points. He said the Department had come a long way with NSRO, but it was not where it was supposed to be. The presentation should not be thought to suggest otherwise, although it did show progress. The Department’s new Director General (DG), Adv Doctor Mashabane, had been informed about the plans. He had made “telling” interventions – for example requiring that non-committed or non-involved officials should be brought to NRSO. The fact that information was shared with NRSO from thousands of courts across the country required decentralisation. That remained NRSO’s biggest challenge and would be addressed by the establishment of offices within the provinces.
Adv Skosana said that IJS remained a “crucial integrator” in the process. SAPS, DoJ&CD, and DHA were key participants. IJS was not where it was supposed to be and it should also be improved.
Adv Kambula agreed: DoJ&CD was far from achieving effective data management of NRSO. She had attempted to communicate that in the presentation. DoJ&CD had experienced many challenges with NRSO since 2009. She emphasised that the major problem which had caused data contamination was the integration of NRSO with the criminal portal. That integration had been important because there was a need for communication between those two systems, in place of having staff enter the information manually. However, NRSO had not been adequately controlled. She did not know the technical terminology but the system did not have the functionality to block impure data.
The Chairperson asked whether NRSO took fingerprints. Was the Register based on fingerprints, or did it just take information from the system? Where did fingerprints fit into the process? That was a key issue in a criminal justice system.
Adv Kambula replied that the system recorded fingerprints by capturing the number dedicated to fingerprints. That number was used to confirm the identity of the offender. The information was entered by court clerks. If the information was not included in an entry, the system kicked it back to the court. The system did not accept incomplete entries.
Adv Kambula said that DoJ&CD was far from saying that it could “run with the program.” However, the overhaul in 2018 had assisted NRSO in achieving data purity, which was a milestone. Data impurity was what had prevented NRSO from being able to issue clearance certificates. The information and system management personnel had collaborated with IJS to investigate the system’s deficiencies and perform an overhaul. For the first time, the system worked.
The Chairperson said that the Committee was not doing its normal oversight work. The Members were like surgeons in the theatre, operating on a dying person. They needed an exact, appropriate tool to assist with the operation – the normal tools would not assist. The Committee needed specific kinds of answers to be able to make a determination. At some point DoJ&CD would be asked to present on its operations to the Committee in its normal oversight role. Currently, however, there was “a state of emergency.” Members’ questions were being asked in light of the need to make a decision about legislation which was supposed to have been passed the previous day, and answers should be given in the same vein. The Committee did not have the normal luxury of looking at broad strategic issues. NRSO was far from optimal implementation.
Dr Newhoudt-Druchen agreed with the Chairperson that the problems went deeper than conveyed. She added that she was happy that the Criminal Law (Sexual Offences and Related Matters) Amendment Act would be amended to include people with other disabilities. As she had said in previous meetings, she had been worried that there had been a lot of focus on people with mental disabilities only. People with disabilities – not only mental disabilities – were the most vulnerable.
Dr Newhoudt-Druchen said that she would have liked to see a schedule or table detailing the location and staff capacity of NRSO offices, like the table SAPS included in its presentation. She wanted to know where NRSO was currently – not just to jump to what it would need when the new bill was enacted. She wanted to see “the in-between.” For example, the presentation said that the Office of the Sexual Offences Register would be progressively rolled out to all provinces (see slide 12) – yet the presentation had not made it clear whether, at present, NRSO only had a national office. Adv Kambula said that finally things were working, after 11 years of struggling to decentralise the organisation – but it was not clear whether that had actually happened.
Adv Kambula said that since 2009 DoJ&CD had been struggling to “establish structure” in NRSO office. With the appointment of the new DG, the appointment of 16 personnel to NRSO had been approved. There was also a process underway in human resources to identify personnel who could be transferred from over-populated branches of the Department to NRSO. They would have to be properly trained about the demands of data accuracy in NRSO context – any inaccurate entry in the Register could lead to civil action.
According to a work study done by human resources, each region required a capacity of six personnel to handle NRSO, excluding the registrar. Currently it had a data capturer and a director-legal monitoring the entries to ensure that information sent to the national office was accurate. The Register focused on a category or family of sexual offences – not all crimes.
Adv Kambula said NRSO functions were currently centralised, when ideally they would be decentralised. Decentralisation had been delayed by “teething challenges.”
Dr Newhoudt-Druchen asked how many data capturers NRSO currently had.
Ms Matjila replied that NRSO currently had only three data capturers. Others had been on contract and their contracts could not be renewed once they had lapsed, because they had already been renewed for a period longer than two years. It was not permitted to continuously renew contracts.
Dr Newhoudt-Druchen asked about the 18 000 data which Adv Kambula said NRSO had recently received from DCS. Had they only received 18 000 data total, since 2009? How far back did the historical data cover? Had the 18 000 been added to the Register? It would worry her if offenders could just “disappear” and be omitted from the Register.
Adv Kambula replied that the Act clearly required three stakeholders – SAPS, DOH, and DCS – to provide the relevant data to NRSO. In fact, they had been required to provide the historical data within six months of NRSO’s becoming operational in June 2009. DOJ&CD had begun engaging with them before that date. However, their data systems had not been prepared to provide the specific data that NRSO required, because they did not have variables for age and mental status. The data thus had to be altered manually. SAPS had been the first to provide historical data, but it had taken time and she thought it had been provided it two separate data sets. DCS had also ultimately succeeded and DOJ&CD was very happy with the data. The retrospectivity application of the provision was five years from the date of NRSO’s application.
Dr Newhoudt-Druchen asked whether that meant that the 18 000 cases from DCS went back to 2009.
Ms Matjila replied that the DCS data went back as far as it could go. When the original Act came into effect in 2009, DCS had been expected to provide the data within three months. That had been before the five-year period was amended, which is why the data extended beyond five years. The collation of the DCS data had been delayed because DCS had wanted to purify the data with SAPS and to align the DCS system with the SAPS system.
Dr Newhoudt-Druchen asked about NRSO’s progress in obtaining data from DHA and foreign embassies. In a past meeting, NRSO had said this was underway; but in the presentation Adv Kambula said it was still under discussion. Was this why paedophiles were able to escape to South Africa – because they were not on the Register? South African children were in danger from such people. She was worried that the Department said it was still in discussion with stakeholders over data.
Dr Newhoudt-Druchen asked what requirements an offender had to meet to qualify to have their name removed from the Register.
Ms Matjila replied that eligibility depended on the number of convictions and the sentence imposed upon conviction. Thus there were no criteria apart from those mentioned in the presentation.
Ms Mofokeng agreed with the Chairperson about NRSO’s difficulties: Adv Kambula had chosen her words carefully, but Members had “read between the lines.” She was tempted to agree with Members who thought NRSO would be best placed with SAPS. She also agreed with Dr Newhoudt-Druchen that Adv Kambula had contradicted NRSO’s previous answer about engagements with DHA. Organisations had hope in NRSO. They were debating about whether or not the Register should be public, but they did not understand that deeper problems hindered the basic administration of the Register. Early in 2020, the Committee had been told about IJS’s planned upgrade – but the upgrade remained merely planned and the budget reserved.
Ms Mofokeng asked whether NRSO would achieve what it intended to achieve. For example, would the integrated process planned with SAPS be achieved? There was also a contradiction there: the DoJ&CD presentation mentioned that it was integrating with SAPS, but the SAPS presentation did not mention that it was integrating with DoJ&CD.
Adv Kambula said that because NRSO was collecting cases as a data repository, it could provide figures, such as the number of new convictions or the number of victims. It was currently the only repository that kept data that had been disaggregated according to type of victim – for example, according to the type of disability or age group of the victim. Now that the scope of NRSO had been expanded, there was agreement that the system had to continue to keep disaggregated data, to help provide specific figures. For example, it should be able to record how many blind people had been victims of sexual offences.
Adv Kambula said that all parties should be using the IJS transversal hub. Following the global trend, the country kept three registers: NRSO, the Child Protection Register, and the register for abuse of older persons, managed by the Department of Social Development (DSD). The registers were dependent on one another – for example, the other registers were dependent on DOJ&CD, to a certain extent, for data about convictions. DoJ&CD was in turn dependent on SAPS. Thus managers and data sources needed a platform on which to share data, which the transversal hub provided. The key stakeholders were all already operating on that platform, regardless of whether SAPS mentioned it in their presentation. The systems integration was complete. Now it needed to be ensured that the necessary information could be shared and that data purity was maintained.
Ms Mofokeng asked how data contamination could be prevented in the future.
Ms Mofokeng noted that the clearance certificates issued by NRSO were free, whereas SAPS issued them at a fee. Could systems not talk to each other? She also asked whether there were currently any backlogs in issuing the certificates, since the Act required their delivery within 10 days.
Ms Matjila replied that NRSO was largely able to meet the 10-day deadline. As outlined in the annual performance plan, any requests were immediately captured on the system and brought to her for approval and issuance of certificates. NRSO had not been receiving many applications recently, so when applications were forwarded through it could deal with them immediately. The applications that incurred delays were those that were sent by post, because those had to be sorted before being delivered to the office. Upon delivery, however, they were processed immediately.
Ms Mofokeng felt like the issues still required a “clean-up.” The presentation should have started with Ms Matjila’s discussion of NRSO processes. Although Adv Kambula’s lengthy presentation was appreciated, there were communities waiting on GBVF bills to be passed. The Committee did not want to see court actions about NRSO not being ready on time. She was not convinced by the presentation and in fact was “very confused.”
Mr X Nqola (ANC) asked which offender details were contained in the Register in its current form.
Ms Matjila said that the Register recorded the offender’s full name and title, including known aliases and nicknames. It also recorded applicable professions or trades – if the offender was a teacher, the system generated a form informing the employer that the teacher had been convicted of a sexual offence against a child and could not be allowed to work with children. The register also included last known address, identity number, passport number if applicable (for non-nationals), driver’s license if applicable, and the fingerprint number. As Adv Kambula said, the fingerprint number was a compulsory field; the system would not accept the entry without it. Also recorded were the type of offence, the name of the court where the trial took place, the case number, and the conviction and sentencing dates (even in foreign jurisdictions). If applicable, it recorded the name of the institution or medical practitioner who attended to the victim of the offence and who had completed the J88 form.
Mr Nqola asked whether NRSO had been able to balance the provisions of the Protection of Personal Information (POPI) Act with the details required for the Register.
Ms Matjila said that it had. When the court convicted an individual of a sexual offence, they had to inform the individual that their details would be included in the Register and inform them of the consequences. A person who knew that an omission from the Register had occurred was required to bring the omission to the attention of the court. When DCS sent information about current prisoners, they had to inform the prisoner in the same way. NRSO was fully compliant with the POPI Act.
Dr Newhoudt-Druchen asked what Adv Kambula had meant when she said that NRSO’s capacity had declined during the COVID-19 pandemic.
Ms Matjila replied that Adv Kambula had been referring to the personnel capacity issues mentioned earlier, arising from the difficulties in renewing staff’s contracts.
Dr Newhoudt-Druchen said that she had not seen the courts included in the DoJ&CD’s plans for integrating with other entities in the criminal justice system. The courts directly fed to NRSO, and she assumed they fed to DoJ&CD. She noted that the Office of the Chief Justice (OCJ) was included. The presentation said the DoJ&CD “planned to” integrate with OCJ. Did that mean it had not yet been implemented?
Ms Matjila replied that the courts fed directly into NRSO, and that included the high courts. Both lower court clerks and higher court registrars were required to forward convictions to NRSO. However, because the high courts were now separate and reported to OCJ, the systems were not linked. The requisite information was received from the high courts, but it was sent manually, rather than automatically and electronically.
The Chairperson asked about the numbers used to designate sets of fingerprints. If the system was hacked and the numbers were changed, did DoJ&CD have any backup?
Ms Matjila said there was a backup, because the information was linked to the criminal system, which in turn was directly linked to the courts. The backups were currently linked to the IMS and to the electronic case management system (eCMS) at court level. When a case docket was opened, the police and the NPA used the eCMS to record the docket, which subsequently fed into the ICMS. When documentation had been manual and non-digital, the SAPS docket could be used to verify the information if the number given was fabricated or otherwise incorrect. SAPS and the NPA recorded the fingerprints – they were already captured when the docket arrived at DOJ&CD.
The Chairperson asked the SAPS and DoJ&CD delegations what they would do if they were in the Committee’s position, having heard both presentations. How would they approach the issue of NRSO?
Major General Mangale said that SAPS was responsible for the administration of criminal records, including those of sexual offenders. SAPS had not administrated NRSO, but it had collaborated with NRSO, assisting it with clearances and removals. Engagement was ongoing and NRSO and SAPS depended on each other extensively. He was confident that SAPS was “ready” to administrate criminal records in general. However, in order to administrate NRSO, SAPS’s requirements would have to be met.
SAPS’s presentation had focused on vetting processes broadly, not the administration thereof. He could confirm that SAPS had criminal records systems that housed court outcomes and which based the identification of criminal records on fingerprints. The fingerprint number which the DoJ&CD delegates mentioned was used by SAPS for easy reference when interfacing with DoJ&CD, for example to allow easy cross-referencing with NRSO entries. The fingerprint number could be associated with the relevant case number in the Register.
Ms Matjila advised the Committee to leave NRSO where it was currently. The Committee was aware of the challenges faced in implementing NRSO. DoJ&CD was aware of those challenges and had put interventions in place to address them. She also advised the Committee to consider the mandates of the relevant entities. The DoJ&CD currently administered the Sexual Offences Act as a whole. In the national policy framework, NRSO was housed in the DoJ&CD because the NRSO was a cornerstone for the implementation of that Act. Parliament was considering the Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill, which extended the scope of NRSO, probably in order to increase its accessibility and to ensure that all victims of sexual offences were protected. DoJ&CD administered NRSO because it had a “clear focused approach” regarding its management and implementation. It monitored what did and did not enter the Register. For example, where an omission occurred in court, only the DOJ&CD, through the implementation of NRSO, could identify such an omission and rectify it with the court.
Moreover, NRSO was, as Adv Kambula emphasised, a repository. It allowed DoJ&CD to monitor sentencing trends and conviction trends in every province – to see, for example, if one province trended towards giving pedophiles suspended sentences or “a slap on the wrists.” In implementing NRSO, the DOJ&CD monitored “the nitty-gritty.”
Ms Matjila said that wherever NRSO was housed, its purpose was to protect the victims of sexual offences, and particularly children and people who were mentally disabled. She would like to believe that its scope had been extended by the new Bill because legislators realised its potential. The Register gave not a false sense of protection but a real sense of protection – it protected the particular categories that it sought to protect, like children. If NRSO was given the necessary resources, it would “soar to greater heights.”
Adv Kambula said that the Committee faced a difficult decision. DoJ&CD wanted the country to have a repository that would benefit the victims of sexual offences, especially those in gender-based violence categories. The President had announced that GBVF was a second pandemic. South Africa had been labelled globally as the capital of sexual offences and femicide. There was a global trend towards having a separate repository for all cases relating to GBVF, which was why NRSO had been established. South Africa had followed similar trends in establishing the Child Protection Register and the register for abuse of older persons. The whole globe was still looking for solutions to GBVF; not a single country had an “antidote.” The international community, South Africa included, was looking for best practice models. South Africa had been identified globally, and especially by the African Union, as having leading interventions in this area.
There were several reasons that it was necessary to have a repository like NRSO. Research initiatives depended on dedicated repositories to provide disaggregated data for offender and victim profiling. It was necessary to support research initiatives, which provided “learning experiences” that could be analysed to find solutions to GBVF. The data could assist in directing programming, including programmes for response, prevention, and support and care. South Africa was currently “in a mode of interventions,” and it had “innumerable” programs because it lacked the data needed to direct its interventions appropriately. Given the effects of COVID-19, it was especially important for the government to be cautious that it was directing its resources to the areas and provinces which needed them most. The data could also illuminate the magnitude of sex offending in the country. Moreover, it was important that the repository was dedicated not to all criminal cases but to a specific category of cases. NRSO was dedicated to finding a solution to the problems that were “wiping off” and “traumatising" the country’s female population and children.
Adv Kambula said that NRSO had made progress, as the presentation showed. After many interventions, NRSO had finally achieved data purity. It just needed more resources, especially human resources.
Adv Skosana joked that if he was in court he would reserve judgement and call for more information on the matter. He thought the Chairperson had asked earlier whether SAPS or DoJ&CD took fingerprints. In the IJS model, ideally the police would not be taking fingerprints. DHA was supposed to be repository of all fingerprints, because it needed to know at all times who and where the citizens were, and who entered and left the country. The fact that the police and other entities were taking fingerprints signaled that the IJS model had not yet come to fruition. The idea behind IJS was that whenever the police processed an arrest, every system would come on the radar and all entities in IJS would get the arrested person’s details. SAPS was advanced because it had had the opportunity to create certain functions and systems. SAPS had managed criminal records over the years, although that was not necessarily a mandate fixed for SAPS in terms of any specific legislation. An argument could be made that SAPS could take on new functions easily because they had, for example, fingerprinting capacity in the provinces, and could take fingerprints quickly. DoJ&CD had not yet established those “footprints.”
However, Adv Skosana said that NRSO had to be located within the Act more broadly and within the government’s broader approach to GBVF. In that global picture, NRSO was not primarily about keeping a register – it was also about doing analysis and research, monitoring trends, and advising policy and legislation. It had broad scope – in fact, it was beyond the scope of any single security department, including the Department of Police. Although SAPS could perfect the administration of NRSO and the issue of “keeping the numbers right,” it could not extend to those other functions. If it was given decision-making functions regarding the NRSO – for example, in decisions about which offenders’ names should be expunged from the Register – it would suffer capacity issues. That would also be beyond its legislative mandate. Only the Minister of Justice, in line with various acts of Parliament, had the requisite command of the entire value chain and judicial structure.
DoJ&CD did not have answers about its failure to create capacity and permanent structures within NRSO. It could not explain why NRSO was still operating on temporary capacity and ad hoc movements of personnel – basically a “panic button.” At the same time, that was not necessarily a good reason to remove NRSO from DoJ&CSD.
Adv Skosana’s view was that, wherever NRSO was located, its functionality and roles should be “revamped.” Its powers and roles should be “sacrosanct” in the Act, not dependent on the National Commissioner or other officials. It was important that the registrar could be accountable to the Minister and more broadly to Parliament. Also, given that both DoJ&CD and SAPS had requested more capacities and budget, the Committee should ensure that any capacity that was designated was channeled to the administration of the Act and NRSO, so that its objectives were being achieved. Although he apologised for complicating the Committee’s decision further, his view was that the Committee should not focus mainly on NRSO’s location. Instead, the Committee should focus on how to make NRSO function best, wherever it was located.
Closing remarks by the Chairperson
The Chairperson said that the Committee should reflect on a story that had been told in the ANC Youth League by an old Umkhonto weSizwe (MK) commander. At some point, MK had planned a large operation to bring an MK soldier into South Africa from Mozambique to do some work in the country. They planned for months, applying their minds thoroughly, and every aspect was in place. The night of the soldier’s departure arrived. But they had forgotten one thing. There was only one route the soldier could take, in order to evade the border police, and it required a bicycle, which had been arranged. But minutes before the operation was supposed to start, they discovered that the soldier could not ride a bicycle, and it was too late to teach him. All the months of planning came to nothing.
The Committee appreciated the entities’ good endeavours and “lofty ideas,” but it must come to one thing: would they be effective? NRSO had been operating since 2008 or 2009, and it had not been “optimal.” Since Parliament was going on recess, the Chairperson suggested that the DoJ&CD and the police, along with DHA and DSD, should sit down together with the DoJ&CD drafters. They should put aside the parochial needs of their departments – as Adv Skosana had correctly observed – and work out what would best serve South Africa. They needed to come up with something much more “tangible,” given the challenges faced.
Part of the problem, which the Committee had forgotten to raise during discussion, was that, as SAPS had said, global comparisons were made. But with which countries? There was a problem with doing global comparisons and simply exporting ideas from developed countries to a developing country – with wanting to have “Rolls Royce solutions to a problem that needs a Toyota Corolla.”
Both registers had strengths and weaknesses, correctly articulated during the meeting. Those notwithstanding, there was currently a pandemic. What would work, work effectively, and work soon? It might be necessary to adopt an immediate medium- to long-term approach. The Committee wanted the suggestions to be properly developed. NRSO was an intervention to save South African women, children, and people with disabilities; it was not a “departmental achievement” but something that was supposed to serve the nation as a whole. All relevant departments should be thoroughly consulted, the DoJ&CD legal drafters should be consulted, and the delegations should bring back to the Committee “something better” that could work immediately. There was no point in being hailed globally for something that was not working at all. It was also important that they found a solution that would work within the current constrained fiscal environment.
At some point, the Committee would invite the DoJ&CD delegates to brief it on the history of NRSO. How was it that the programme had been implemented over a period of 12 years, and after 12 years was still far from optimal, much less perfect? What had been the opportunity cost over that long period of time?
The Chairperson was not convinced that the resources that had been “splashed out” in the presentations were a true reflection of the resources needed to administer NRSO. If someone wanted a Rolls Royce but had a budget of R50, it was unlikely that he would ever get it.
The Chairperson encouraged the delegates to interact with each other and ensure that they brought back something that the Committee could work on. Adv Skosana said he reserved judgement on the Chairperson’s question, but when the delegates returned, they should have a firm position.
The Chairperson was disconnected due to loadshedding.
Ms Mofokeng said that she thought that the Chairperson had been about to adjourn the meeting anyway, which the Committee secretary confirmed. Ms Mofokeng thought that the Chairperson’s request was that the delegates from DoJ&CD and SAPS return to the Committee at a later date, but under certain specifications. The Committee needed to take a decision about how to approach the GBVF strategy.
The meeting was adjourned.
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