Sexual Offences Register: Department of Justice and Constitutional Development & SAPS Input

Meeting report

Opening remarks

The Chairperson welcomed Members and everyone on the platform. Three Departments had been requested to produce a briefing on the National Register for Sex Offenders (NRSO): the Department of Home Affairs (DHA), the South African Police Service (SAPS) and the Department of Justice and Constitutional Development (DoJ&CD). The Committee had requested the three Departments to put together a briefing for the Members on the National Sexual Offences Register (NSOR) so that the Committee would have a good understanding of the NRSO and be in a position to finalise the Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill in the next few days.

The Chairperson stated that by the following week the three Bills currently before the Committee should be concluded so that they could be debated in the National Assembly after the three-day rule had been observed. He thanked the Members and the supporting staff for their hard work on the Bills.

He welcomed the Director-General of DoJ&CD and invited him to introduce his team.

Adv Doctor Mashabane, Director-General, DoJ&CD, stated that he was in the Departmental boardroom and was accompanied by Adv JB Skosana, DDG for Corporate Services under which the NRSO currently lay,  the Registrar of the NRSO, Ntombizodwa Matjila, and the Chief Director responsible for Vulnerable Groups, including Sexual Offences matters, Adv Praise Kambula, who would be making the presentation.

It appeared that the DHA was not on the virtual platform. The Chairperson welcomed SAPS.

Lt-Gen Senthumule, Head of Forensic Services, SAPS, stated that she was leading the SAPS delegation as the Commissioner was at a press briefing with the Minister following the presentation of the SAPS budget that afternoon. Major General Mangale and other colleagues were on the virtual platform with her.

Presentation by the Department of Justice and Constitutional Development (DoJ&CD)

Adv Praise Kambula, Chief Director: Promotion of the Rights of Vulnerable Groups, DoJ&CD, made the presentation. She stated that the presentation was in response to a request by the Committee to provide details on the NRSO and how it operated.

Adv Kambula stated that a meeting had been arranged for 29 April 2021 to prepare for the presentation. SAPS and DoJ&CD had attended but DHA had been unable to attend the meeting.

She began by recapping the background. Parliament was currently considering the Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill, which inter alia sought to:

-Expand NRSO scope to include particulars of all sex offenders beyond offenders against children and persons with mental disabilities;

-Include other vulnerable persons, namely, female persons between the ages of 18 and 25, persons with physical, intellectual or mental disabilities and persons 60 years of age or older who, for example, received community-based care and support services; and

-Increased the periods for which a sex offenders' particulars had to remain on the NRSO before they could be removed from the Register.

Those amendments responded to the #TheTotalShutDown 24 Demands and consequently to Pillar 3 of the National Strategic Plan on Gender-Based Violence and Femicide. The primary stakeholders were DoJ&CD, SAPS, the Judiciary, Department of Social Development, the Department of Correctional Services and DHA.

She presented the purpose of keeping the record and compared the SA situation with practices around the world. The inherent interdependencies between stakeholders was recognised and so it was recommended that the Committee should consider how the stakeholders could jointly share resources for the effective management of the Register although the Register should lie within DoJ&CD

Adv Kambula stated that it was a criminal offence for anyone to intentionally disclose or publish information contained in the Register, except when necessary, in terms of the Act or when ordered to do so by a court. Failure to retain confidentiality would contravene several constitutional rights of the offenders.

The presentation raised the question whether consideration had been given to the possible chilling effect of increasing the regulatory burden on the economy. The IT infrastructure was sound. The NRSO system had SMART functionalities aligned to the most recent technological advancements. The system was linked to courts, which were the major data sources. The NRSO system had been upgraded to detect cases where the court had inadvertently omitted to make an order of entry into the Register. That functionality ensured that convicted sex offenders were registered. The IJS (Integrated Justice System) Transversal Hub was the possible solution to facilitate data sharing between Departments.

The budget showed that R12,348m was required in the 2021/22 financial year and that was in the DoJ&CD budget.

SAPS had no additions to make. Lt-Gen Senthumule and Major-General Mangale were content with the presentation as they had worked with Adv Kambula on the presentation.

(See Presentation)

Discussion

Ms Y Yako (EFF) stated that the presentation did not look good in terms of the work that was being done in respect of combatting gender-based violence and trying to put sexual offenders behind bars and have a public sexual offenders’ register.

Looking at the budget, it seemed to her that it would take years for the Sexual Offenders Register to become operational. It also seemed to defend the rights of the sexual offenders. When did a sexual offender or sexual predator have rights? She believed that someone who had sexually violated someone or had perpetrated gender-based violence lost one’s human rights and one’s right to be treated with dignity, especially once a person had been convicted. How long would it take for the Departments to make sure that the conviction process was quicker?

The Chairperson asked Members to focus on the NRSO as the Committee would be going through the Bill, clause by clause. The intention was to listen to a consideration of whether the Register should lie with DoJ&CD or with SAPS.

Dr W Newhoudt-Druchen (ANC) stated that, after looking at the presentation, it seemed that the Register should stay with the Department but be improved. In one of the presentation slides relating to the background, Adv Kambula had referred to “people with physical, intellectual and mental disabilities”. She would rather the general term “persons with disabilities” be used, otherwise sensory disabled people were excluded. Sensory disabled children were abused but people could get away with it by saying that they were not covered by the specifications. Either the umbrella disability term should be used or all groups of disabled people should be referenced.

Mr W Horn (DA) could not agree with Ms Yako about perpetrators losing rights but there were conflicting rights at play when a perpetrator committed an offence and a victim also had rights. The question was whether there should be a balance that rested more heavily with the victim and society. The presentation strongly suggested that the offenders’ rights weighed more heavily than that those of victims and society, especially in the nature and accessibility of the Register.  He agreed with the sentiment of Ms Yako that the balance of rights seemed to rest with offenders.

Mr Horn also had a sense that the task team was of the view that the purposes of the NRSO would be best achieved with the NRSO resting with DoJ&CD as it currently did, but he was apprehensive about the ability to deliver through the IJS. The Committee had been disappointed by the lack of real progress in the IJS. He appreciated that if ever there was to be a functional system, the NRSO had to merge seamlessly with the IJS but perhaps a lone standing platform would work better in the interim so that it could assist the fight against GBVF while the system was being brought up to standard.

The budget for the NRSO was always going to be a worry, knowing the budget of the Department and the Medium-Term Expenditure Framework. It also meant that there would always be staffing issues in the NRSO although skills and warm bodies would be needed to make it work.  The presentation had stated that a budgetary allocation was to follow but the Committee knew that the Department and National Treasury would struggle to find additional funds over the next three years.

Adv G Breytenbach (DA) appreciated the presentation and was largely covered by her colleagues. She was disappointed as she shared Mr Horn’s scepticism that there would be sufficient budget to pay for the resources. She still held the view that the police had a criminal asset register that was up and running and she did not see why the budget allocated to that register could not be used the NRSO. She requested more information in that regard.

She shared Mr Horn’s concerns about the IJS. It had never been functional and she was beginning to doubt that it would ever be functional. On paper it sounded like a Rolls Royce but, in practice, it would probably turn out to be a bicycle. She was also concerned about the interest of the sex offenders being placed so very far above the rights of the victim and members of society. That would be addressed in the clause-by-clause reading of the Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill.  What international best practice was looked at in designing the system? She had seen some really good systems internationally and they were all housed within the police system.

Ms N Maseko-Jele (ANC) stated that her colleagues had covered her and she would wait for the day when the Committee discussed the Bill clause-by-clause. She was particularly concerned about the discussion regarding making it public versus not making it public and the rights of the victim.

The Chairperson asked the DG where the Department would find the money.

The DG acknowledged that the budget would be a challenge but said that the Department would look at its baseline to see what it could find. He said that some of the budget was allocated for personnel and he was of the opinion that personnel could be shifted inside the organisation and redeployed to NRSO, which meant that the projected amount should be found. He was also considering using CARA (the Criminal Assets Recovery Account) funds if the rules would allow the Department to use those funds for that purpose. Neither National Treasury nor SAPS would have additional funds available for that purpose, so the Department would have to make do with what it had.

The Chairperson asked for responses from the team.

Adv Skosana added two points. (The sound was initially distorted) He said that the Department was working on a number of aspects of the IT systems where DoJ&CD could save a number of hands that could be channelled towards the NRSO. The Department had been working with SAPS and that had started to produce positive results.  The issue of joint resources would allow the DoJ&CD and SAPS to leverage resources. The register was needed more between SAPS and DoJ&CD than between DHA and the Department of Social Development (DSD). DoJ&CD was looking at two areas where SAPS had resources, one being at local level where SAPS was well-resourced and could assist.

In response to the question about persons with disabilities, Adv Skosana stated that the intention was to incorporate all persons with disabilities and there would be a broad category of vulnerableness. The courts were already assisting with data collection and the improvement of systems would enable DoJ&CD to use the courts to leverage the capacity challenges.

Adv Kambula responded to questions of functionality. She stated categorically that the NRSO was fully functional, except for the inclusion of the international sex offenders. That had not yet been addressed. The Department of Home affairs would have to extrapolate the information from its system and include that in the NRSO, but that was the only area where the Register was not operational. The system was being maintained fully and profile analysis of the victims was taking place.

She said that the IJS had moved with speed in response to their request and the IJS had ensured that all departments working on the NRSO, with the exception of the Office Chief Justice (OCJ), were integrated, as she had indicated in the presentation, and that the OCJ would be included by the end of the financial year. The DG had said that R5 million had been set aside to ensure that all information from all departments was entered into the system. It was in the Annual Performance Plan of the IJS. By the end of the financial year, all the data would be available via the IJS.

The Registrar informed the Committee that the UK model had been used as the model. It was similar to the SA model in many respects.

Lt Gen Senthumule said that SAPS was satisfied with the answers of DoJ&CD. She pointed out that all departments were facing financial constraints and had to do more with less. The departments had to ensure that the integrated transversal hub really worked and enabled them to see results to ensure all victims were taken care of and protected and that all offenders were listed in the register. All offenders had to be included in the register.

Ms Maseko-Jele raised an issue about which side (DoJ&CD or SAPS) the Register should go. She agreed with Dr Newhoudt-Druchen that it should remain with DoJ&CD for the moment.

Concluding remarks

The Chairperson requested that the drafters provide an option 1 and option 2 in the Bill in respect of where the NRSO should be housed because there were two views in the Committee – that it stayed with DoJ&CD and Adv Breytenbach’s view that it should be housed in SAPS. The Committee would deliberate on the matter as it went through the Bill clause-by-clause and a decision would have to be made. Most of the other issues were part of the Committee discussions that would happen during the deliberations. Monitoring of implementation of the Bills would be part of the oversight of the Departments and the Committee would determine that as part of its oversight programme.

The only other issue related to people under the age of 25 but there had not been a question in that regard. It would be looked at in the clause-by-clause discussion. The Committee had already dealt with a large chunk of the Bill. Two days remained to deal with the clause-by-clause reading. The Committee had the entire day on the following day.

He adjourned the meeting as the Committee would meet early in the morning and he requested that the Department wrote in the two options.

The Committee agreed.

Dr Newhoudt-Druchen apologised for her interjection but requested that the matter of victim rights be discussed during the clause-by-clause deliberations. Could the Committee add the issue of victim empowerment and equality to the discussion as it seemed that offenders’ rights were more protected than victims’ rights?

An outsider requested a response to a question raised in the chat box on the virtual platform.

The Chairperson explained that the time for public comment was over and that only Members of Parliament could engage in the deliberations on the Bills at that stage.

The meeting was adjourned.