Land Court Bill: briefing; GBV Bills deliberations: with Deputy Minister

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Justice and Correctional Services

26 May 2021
Chairperson: Mr G Magwanishe (ANC)
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Meeting Summary

Video: Portfolio Committee on Justice and Correctional Services, 26 May 2021

The Department of Justice and Constitutional Development (DOJ&CD) gave a briefing on the Land Court Bill and fielded questions about the Court’s jurisdiction relative to the Land Claims Court; the budget needed to implement the Bill, which the Department said had already been costed; the seat of the Court, which has the ability to travel as determined by the Judge President; the ability to deal with both the transfer of functions to the new Court and the ability of the Land Court and Court of Appeals to deal with the current Land Claims backlogs. The Committee agreed to advertise the Bill for public comment for eight weeks since the Executive had not put it out for public comment.

The Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill was finalised for the Committee to vote on 28 May. There were concerns about limiting the category of women under the age of 25 at higher education institutions in the definition of ‘persons who are vulnerable’ as having potential for a constitutional challenge. The Deputy Minister said whilst this may be possible, the limitation seemed justified. He pointed out that 60 years-plus category was also limited. There was no time for an impact assessment to inform such a policy choice but the Committee would recommendation that this be monitored in its Committee Report.

The Domestic Violence Act Amendment Bill was also finalised, with a decision to criminalise the non-reporting of domestic violence as the Committee had similarly upheld in the Sexual Offences Bill. The Committee was grateful to the drafters who had brought the Bills to this point and the Chairperson commended them as true patriots of South Africa.

Meeting report

Mr Dyantyi was elected as Acting Chairperson as the Chairperson was delayed in another Committee meeting.

Land Court Bill: briefing
Ms Theresa Ross, Principal State Law Adviser, DOJ&CD, explained that the current jurisdiction for land related matters is scattered in a number of statutes including: the Restitution of Land Rights Act of 1994, which established the Land Claims Court. In some cases, this court also shares jurisdiction with the Magistrates' Court. This Bill will streamline land related matters to bring them under the Land Court. She introduced her team which included Ms Lisa Naidoo, the State Law adviser who certified the Bill.

Mr Makubela Mokulubete, State Law Adviser from Legislation Development, thanked Ms Ross for the introduction and the Committee for a chance to present. He explained that the aim was to widen the mandate of the Land Claims Court so that it can deal with any land-related matters. The lack of permanency of the judges of the Land Claims Court as well as the lack of permanency of that Court itself have been challenges. This has resulted in the slow finalising of matters and the resultant backlogs.

Purpose and Objective of the Bill: Chapters 1 and 2
Clauses 2-4: To establish a Land Court, Land Court of Appeal and dispute resolution mechanisms dealing with land related matters.

Seal and Jurisdiction: Chapter 2
Clause 7 should read ‘The Court will have exclusive jurisdiction in respect of all matters in terms of this Bill, or in terms of any other law.' The Minister would be given the power, after consultation with the Chief Justice to define a specific area of jurisdiction for each Court.

Clause 9: Appointment of Judges, Officers and Assessors
This clause deals with the tenure, remuneration and conditions of service applicable to a Judge of the High Court who serves concurrently in the Land Court.

Institution of Proceedings: Chapter 4
Clause 10
This aims to align the Bill to the Superior Courts Act. The procedure is outlined on slide 7.

Appointment of Assessors
These may be appointed to assist the courts, however, not more than two assessors can be appointed to assist the Court.

Clause 14: Rules of Court and Legal Representation
The provisions of the Superior Courts Act and the Uniform Rules of Court will apply to the Court unless the regulations make another provision. The Rules Board for Courts of Law is the body that will be making the Rules for the Court since it is the body that developed the Uniform Rules of Court.

Clause 15
Any person may apply to intervene in court proceedings and either self-represent or be legally represented at their own cost. Where this cost is not affordable, the Court must refer the matter to Legal Aid.

Clause 16
The funding related to legal aid will be defrayed from money appropriated by Parliament for this purpose. This money is currently managed by the Land Rights Management Facility.

Clauses 19; 22 and 25: Witnesses, Evidence and Admissibility of Evidence
The rules of securing witness attendance are in clause 19. The rules of evidence will be relaxed in this Court, meaning that hearsay evidence will be allowed, if or not it would be admissible in another court.

Court orders, Variation, Rescission and Costs
The Court may stay proceedings at any stage where it becomes apparent that a dispute should have been referred to mediation or arbitration and refer the dispute for either process.

Clause 31: Mediation
Where it becomes evident that the dispute might be resolved through mediation before judgment, the Court may make an order directing the parties to mediate. The clause also deals with the nomination of a fit and proper mediator.

Clause 32: Arbitration
The Court may make an order directing the parties to undergo arbitration.

Clause 32-33: Settlement
These clauses deal with the arbitration award and the related settlement agreement

Clause 43-46: Land Court of Appeal
The appeal court judges will be appointed by the President on the advice of the JSC and after consultation with the Minister. Officers of the Land Court hold the corresponding office in the Land Court of Appeal. This outlines the procedure for leave of appeal and the binding nature of Land Court of Appeal’s decisions on the Land Court.

Clause 49-52 General provisions: Chapter 6
This chapter deals with the general provisions applicable to the courts established by the Bill. This includes matters of finance and accountability; transitional arrangements; amendment of laws in the Schedule; regulations and the short title. At the end of the Bill, there is a Schedule listing at least nine pieces of legislation. These are intended to be placed within the jurisdiction of the Land Court immediately upon the establishment of the Land Court. The drafters' intention was that since the Land Court is being newly established, it would not place all the legislation dealing with land under its jurisdiction. Through processing the Bill, it realised there are about 33 pieces of legislation dealing with land. It will therefore follow an incremental approach on legislation to be included. To begin, it will include only nine pieces of legislation under the court's jurisdiction.

The Bill has been costed and the main financial implication will be the need for additional human resources for the appointment of judges, officers of the Court, and mediators and arbitrators who are not in the full-time employ of the State.

Mr R Dyantyi (ANC), Acting Chairperson, welcomed the Deputy Minister and asked if he would like to add anything.

Deputy Minister John Jeffery responded he had nothing further to add. He had missed the beginning due to other meetings, but he was here for the Criminal Law and Related Matters Amendment Bill.

Mr W Horn (DA) thanked the Department for the presentation and asked if his understanding was correct that this would ultimately be similar to the Special Tribunal of the Special Investigating Unit (SIU); where judges who are serving in the different divisions of the High Court will be designated to serve at this Court for some fixed periods. If this was the case, he asked if it had already looked into the small challenge creeping into the SIU Special Tribunal, where the feedback is that for part-heard matters; it becomes difficult when a Judge returns to High Court and a further designation must be arranged with the Judge President of that division. This could lead to delaying rather than speeding up matters. On mediation and arbitration, he asked for and suggested that there is a need to further delineate the meaning of ‘fit and proper person.’ He thought it was too vague, especially in the case of arbitration as these people will be making very important decisions. On the clause that arbitration awards will be final and binding, although they will need to be approved by the Court; he asked what the effect of final and binding is on the right of appeal which litigants would ordinarily enjoy. He had the sense that in arbitration, there would not necessarily be a right of appeal. He asked if this would pass constitutional muster if that is indeed the intention behind the status of arbitration appeals which have been approved by a court.

Mr Mokulubete replied that the Department noted the vagueness of the phrase ‘fit and proper person,' and it would deal with this in due course. On arbitration being final and binding, its effect once the award has been handed down or issued, it will be final and binding. In this instance the arbitration award is binding between the parties; however, it may be taken on review if a party is not satisfied. Between the parties, however, the award is otherwise final and binding. On the number of judges, there is a provision that where a judge of the Land Court has to attend to duties in another court, that judge will still be regarded as the judge and would be allowed to come back and conclude that matter. In short, the judge is entitled to come back to finalise the matter. Bearing in mind that the intention of the Bill is to ensure that land matters are dealt with as speedily as possible, this is why it is beefing up the number of judges in the Court. [inaudible due to poor connectivity] The Judge President will indicate how many judges are needed for the purpose of dealing with matters and will appoint enough judges to deal with the current backlog.

Ms Ross added about the designation of judges. The Bill provides that judges will be appointed to the Court because lack of permanency is one of the challenges stifling the operation of the Land Claims Court. The aim is to have some permanency in respect of the judges in the Land Court.

Adv G Breytenbach (DA) said she was largely covered by Mr Horn’s questions on arbitration and was also concerned about the vagueness of the fit and proper requirement. She asked for more detail on the ability of the Court to rescind its own judgments as she finds it strange.

Mr Mokulubete replied that the Court is empowered to rescind its judgments, mero motu—meaning of its own accord; by way of application of a party to the court, to vary or rescind a judgement. The full details of this clause will be strengthened and dealt with in the Rules of Court as these Rules will stipulate how the variation and rescission will be dealt with. Further details on process will also be in the Rules.

Ms Newhoudt-Druchen asked if the Land Court comes into existence, what is to happen to the Land Claims Court. She asked for clarity on clause 10. He had said the costing has been done for the Bill, but he also said that the seat of the court will be in Johannesburg but it can travel. She asked if the cost of travel has been costed. Many people may not be able to travel to Johannesburg. Is there a provision for those who cannot afford to travel to Johannesburg because they may need to fly as the distances are so great?

Seat of the Court
Mr Mokulubete explained that although the seat of the Court is in Johannesburg, there would not be one court as is currently the case as each division of the High Court will have a Land Court, therefore enabling easy access to the court. In addition, the Minister will be able to declare a specific area where the Court can be held. This will enable accessibility for the parties. In short, the parties will not have to go to the seat of the Court because the Minister will have determined a place in the provinces where the Court can be established. There is also a provision in the Bill saying that in the interests of justice and for expediency, the Judge President will be able to determine a place where a sitting of the Court can take place. For instance, a school can, be used as a sitting of the court; subject to the beefing up of equipment and other essentials needed to sit the court. This could also be a town hall or any other appropriate public place.

Clause 10
Section 47 of the Superior Courts Act currently provides that no process of court can be issued against the Judge, including the Judge President. For example, if a judge is subpoenaed to appear in a court, the consent cannot be granted unless the Judge President has given permission before a process can be instituted against the judge. There was a glitch in Kwa-Zulu Natal.

Land Claims Court
This court has faced a number of challenges. This court will be dissolved. A Land Court will be established and will take the place of the Land Claims Court.

Once the Bill is promulgated, it will deal with the nine pieces of legislation that are being dealt with elsewhere. There will be a provision in the Land Court Bill saying that matters dealt with in High Courts and Magistrates' Courts which deal with matters of land will be continued in those courts as if the Land Court Bill had not been promulgated. However, upon promulgation of the Bill, all Land Claims Court matters will be transferred and dealt with in the Land Court so as to permanently get rid of the Land Claims Court.

Ms N Maseko-Jele (ANC) welcomed the Bill saying that the country had long-awaited it in helping to resolve land claims issues. In 2019 the Constitutional Court raised concerns about the Department of Rural Development and Land Reform. She quoted some of the judgement as follows: 'It is not the Constitution, nor the courts, nor the laws of the country that are at fault in this. It is the constitutional incapacity of the Department to do what the statutes and the Constitution require of it.’ This lies at the heart of the crisis. She asked for comment on this. She also asked how the Department will ensure there is sufficient public awareness of this Bill. Lastly, the Committee heard challenges from the Office of the Chief Justice (OCJ) about transferring functions from the Department to the OCJ. Now, the whole process will begin again. She asked how the Department would ensure the smooth transfer of functions from the Department of Agriculture, Land Reform and Rural Development (DALRRD) to Legal Aid South Africa and the DOJ&CD.

Transfer of functions
Mr Mokulubete replied that the Department has been in engagement with a number of stakeholders in this process including Legal Aid and DALRRD in such a way that this would lead to a smooth transition in taking over of function. The costing of the entire process is underway from Legal Aid's side, it is ensuring that it is capacitated to deal with land matters. The Department is not waiting for the publication of the Bill as processes have been kick-started to ensure upon commencement of the Bill, everything is in place. DOJ&CD is targeting to ensure that everything is in place, including the regulations, by commencement of the Bill. It aims to ensure transfers are done so there will be a smooth transition.

Public awareness
The Department has a way of dealing with awareness-raising on any piece of legislation, including amendments. This is done in collaboration with the Department of Communications which has the mandate of communicating to the public on what is being done by government. There will be communication drives to ensure the public is aware of developments in the land space. In addition, officials of the departments involved are frequently called to conduct interviews on legislation. These interviews are often radio interviews done through local radio stations, where officials are invited to brief the nation on new developments; especially those administered by the DOJ&CD. There are communication drives currently in place and that will be taken care of.

Constitutional Court Judgement
He was unfamiliar with the judgement and was not sure if a colleague of his would like to speak to it but from what he gathered from the extract read; when the Land Claims Court was established, it was established on the basis that it would not be a permanent court but would have a short life-span to deal with restitution matters. There was a miscalculation in the sense that it was thought that the restitution would be a shorter process; only to find that it became worse than anticipated. Matters became many that it resulted in backlogs to such an extent that something needed to be done to cure the problem. What is now being done is an attempt to deal with this predicament; particularly, the life span created for the Land Claims Court. The Land Court is going to be administered by the DOJ&CD. The provisions dealing with the Land Claims Court in the Restitution Act will be repealed, so that everything it dealt with would now be dealt with by the Land Court, which will be established as a permanent court with various places the Court may sit, so as to ensure that there are no glitches as were experienced due to the establishment of the Land Claims Court for a specific life-span.

Mr Dyantyi asked for brief follow up questions.

Ms Newhoudt-Druchen was worried about the backlog of the old Land Claims Court being effectively transferred to the Land Court. She was hoping that the Land Court would speed up the processing of claims as in her experience, she has family who were struggling to get movement through the Land Claims Court.

Mr Mokulubete replied that the Land Court is being created to get rid of backlogs created as a result of the lack of permanent judges since some judges were seconded. Not enough judges were available to deal with the backlogs. The lack of permanency of the court was a challenge. The Department now intends for there to be enough judges as would be determined. He did not want to go into detail as to how this number would be determined, but assured the Committee that there would be enough judges to deal with the backlogs as well as other matters being dealt with smoothly. The Court will be capacitated sufficiently to deal with backlogs.

Mr Dyantyi offered the Deputy Minister a chance to speak.

Deputy Minister John Jeffery said that due to the urgency of the matter, the Department did not have a chance to publish the Bill for public comment and to please bear this in mind when Parliament publishes it for public comment.

Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill The Chairperson, Mr G Magwanishe (ANC), asked that Mr Du Preez focus on the outstanding items and not to begin the Bill afresh, as the Committee covered a lot of ground the week before.

Mr Henk Du Preez, State Law Advisor: DOJ&CD, referred to the new Working Document No 5 and said that there were only two outstanding issues. The first issue was on page 4:

'person who is vulnerable'
This definition has been accepted, and the only remaining item was that of 'female under the age of 25 years.'

This definition becomes relevant when it comes to the obligation to report sexual offences currently in respect of children and persons who are mentally disabled. The question was raised if the obligation should be kept as is and why the ambit of the obligation could not be extended to persons who are vulnerable. He referred to section 54 which refers to 'person who is vulnerable as defined in section 40.'

The Chairperson said he thought Members had had time to reflect and digest the implications and necessity of the section dealing with women under the age of 25. .

Ms Maseko-Jele thanked Mr Du Preez for his work. She preferred option 3 on page 4 of the working document as there would be challenges in taking all women under 25 years of age as vulnerable.

Mr Horn said that a specific definition if adopted will limit the impact of designating women under 25 years as being vulnerable. In principle he was in support of this, but he worried about the extent. Has an impact assessment been conducted to inform such a policy choice the Committee is being asked to make here. All higher education institutions are, like the rest of the country, under severe financial pressure. Has this been discussed with the Council for Higher Education, with the forums for the rectors of higher education institutions to hear what the impact on their institutions will be, if not their buy-in? Having said this, he was not against this. There are lots of horror stories about female students, in particular. However, it must weigh up the impact on institutions and if they will be able to implement this.

The Chairperson asked if Mr Horn would be averse for this matter to be one of ongoing monitoring by government as a recommendation in its Committee Report, as he did not think that they would be able to get a satisfactory answer. He asked if he would be averse to this, in the event a satisfactory answer was not available.

Mr Horn said that this could be looked into whilst this Bill goes to the National Council of Provinces (NCOP). He thought it should look at ways and means to make this work as soon as possible, but he appreciated the recommendation.

Ms Newhoudt-Druchen said she was still considering this but she agreed with her colleague who has just spoken. She asked the Department if it was an option that, if left as is, the regulations could effect this. She recalled that last week, there was a comment on it being an onerous task for institutions to have to vet everybody from the highest to the lowest office. She hypothesised that when the Bill is passed, then all staff members in institutions have to come with police clearance. She asked if it would be an option to add something to that effect to the regulations.

The Chairperson invited the Deputy Minister to respond.

Deputy Minister’s comments
The Deputy Minister saw there was not as much raised on this issue as he had thought. Currently under the Act, people working with children or with mentally disabled people need to be vetted. The definition has the first category of persons who are vulnerable under (a) and then other sectors to which it has effectively been extended. The limitation would comprise of three issues. The higher education institutions, the vocational training centres and the residences. The idea was to target places where women are vulnerable. A woman would be vulnerable at a higher education college from anyone, even a teacher, who might want someone to come in for extra lessons after hours and use that as an opportunity to sexually abuse her. It is a similar issue with persons 60 years of age or older. It is not all persons 60 years of age or older, but people who are receiving support services or community-based care other than a family member, who lives in a building which is used primarily as a residence for them or cared for under 24-hour protection. For example, Adv Breytenbach is not a vulnerable person assuming she was over 60 as she did not fit into any of the categories. This was the intention and it would basically mean vetting. This would mean some kind of transitional provision to enable it to be done over a period of time. It was specifically to look at places where young women are vulnerable. To some extent it was after reflection on the Uyinene Mrwetyana murder and rape and the outcry as to why Luyanda Botha was not vetted. In terms of the previous Act, it would not have been necessary to vet him. In terms of the current Act, it would not be necessary to vet him, but arguable vulnerability is less at a public place like a Post Office.

The Deputy Minister said, in summary, the issue is one of extending the protection where it is possible. Given the vulnerability of young women who are no longer children, the question is how it can be extended. This is essentially a proposal for vetting required for people working with young women in tertiary institutions, vocational training institutions or in residences. The issue is what about young men and if male students are not also vulnerable from their lecturers. He agreed that this could happen but the numbers are much, much, much less. The issue is trying to make it more manageable, the effect of which would be similar to people over 60. He noted a message he had received saying that the inclusion of young women under 25 made no sense at all and asked if it could not just be all institutions having to vet their staff. His response to this was that there might be institutions that do not have young women. If one asks why young women in particular, they are protected until they turn 18 as children and he thought that sociologically, they are more vulnerable as young adults than as older people. The age 25 is probably a bit arbitrary, but there has to be a cut-off somewhere.

The Chairperson thanked the Deputy Minister and said that the Committee may have to move on, he did not think that there was a counter view.

Mr S Swart (ACDP) said that he needed to catch-up as he thought that subparagraph (b) was being deleted and asked if it was now being re-inserted.

The Chairperson said the Committee's view was to support the provision as it now appears in Working Document 5.

Mr Swart said that he still had his reservations but the meeting needed to continue.

The Chairperson said the Committee did not want to suppress anything and asked him to raise his reservations.

Mr Swart said that besides students there are many other females under the age of 25 who are working such as those working in shops. Identifying only students could face a constitutional challenge of discrimination. He asked why only those under the age of 25 at higher education institutions when there are so many other environments such as employment environments. He agreed that these particular females are vulnerable, but so are females who are working and have to travel home on public transport. This is his concern and why he wanted to broaden the definition to include workers. He did, however, understand that the Committee was under massive time constraints and said it might be an issue that needs to be re-visited at the NCOP level to allow progress. He just wanted to raise this concern again.

The Chairperson asked if the Deputy Minister could briefly explain the rationale for Mr Swart.

The Deputy Minister replied that this was obviously a limitation so anything can be subject can be challenged constitutionally; however, it was the reasons that it was being done that matter. It is only particular categories of women under 25 and not all women under 25. This is the same as people over 60 as it is not all people over 60 that are vulnerable. It is not the women being screened, but the employees at institutions where young women are vulnerable. For example, a member of the public is going through a cash point and the cashier is a sex offender; but it is in a public place. It is unlikely that anything is going to happen. Whereas, in schools, there are levels of trust between the student and the lecturer. The students may be on their own, studying late at night and one would not want a caretaker or maintenance person who would have the opportunity to abuse them, to do so. These are the kind of people to be vetted. It is a question of the category of people who are vulnerable, if young women should be included in that category.

The Chairperson said there were no other hands and asked the presenter to continue.

Mr Du Preez said that if Part B was now accepted, the long title needed to be changed and the last thing that needed to be considered was on page 16:

Substitution of section 54 of Act 32 of 2007
This is the clause on the obligation to report commission of sexual offences against children or persons who are mentally disabled.

The Chairperson asked if there were any comments on the obligation to report.

Ms Newhoudt-Druchen said that she thought that Mr Du Preez would explain more the obligation to report because last week the Committee was a bit concerned. The Bill stated family members needing to inform 'professionals' such as a social worker, police officer, counsellor or nurse that there is abuse. However, if these professionals keep quiet, she suggested that include something about that instead of family members being criminalised.

Mr Horn asked if failure to report would still be considered a criminal offence as his understanding was to include an obligation to report without making a failure to report a criminal offence.

Mr Du Preez replied that if the Committee prefers not to criminalise failure to report, then 54(2)(a) can be removed, and keep 54(2)(b) which would become section 54(2). The Department was ready to receive the Committee's instruction on this.

The Chairperson asked about having the obligation without a punishment for failure.

Mr Du Preez replied this was the other side of the coin. If there is an obligation without a consequence associated with failure to comply, the question is what the use is of creating an obligation at all.

Adv Breytenbach said that she could not understand why the Committee would go to the lengths that it has gone only to remove sanction. There are many reasons why people in the family context are not being reported, and none of them are good.

The Deputy Minister said that there is already a criminal offence in the Sexual Offences Act on not reporting the knowledge, reasonable belief or suspicion that a sexual offence has been committed against a child or a person with a mental disability. This is already the law. What is happening here is that it is being expanded to include knowledge of a sexual offence against a person who is vulnerable. That was all that was happening. If the criminalisation is removed, this made the law more lenient and he did not understand the point of saying something must be done with no consequences for not doing it. He agreed with Adv Breytenbach. He asked to be excused.

The Chairperson thanked the Deputy Minister for joining the Committee and excused him.

Ms Newhoudt-Druchen said that knowing the severity of sexual offences, such as the rape of children makes her want the possibility for a person who refuses to report to remain being criminalised. She thought it should stay as the crisis is increasing. It is problematic that SAPS says it is a family matter and that there is no need to report. It is concerning when police officers themselves do not write down the statements.

Ms Maseko-Jele said if she understood the Deputy Minister the reason for criminalisation is that it is already there. If one does not report, there must be a consequence.

The Chairperson explained that the Deputy Minister said that there is already legislation which criminalises non-reporting. He supported Adv Breytenbach in saying there was no point of having an obligation without consequences for non-reporting. It seemed to him that the Committee was now on the same wave length. The aim of the three gender-based violence (GBV) Bills is to re-engineer society to think differently on domestic violence and sexual offences. Police officials who do not do their work will be guilty of serious misconduct. The main reason for the Bills is to point to the severity and seriousness of domestic violence and sexual offences against vulnerable people. This is something which the Committee would continue to advocate to ensure that those who do not do their work, police officers or prosecutors, will face the consequences. It had really tried to tighten the law to ensure that such incidents are not tolerated.

Mr Du Preez said that the Bill was finalised.

Adv Breytenbach thanked Mr Du Preez for his hard work on the Bill.

The Chairperson thanked Mr Du Preez and his team for their dedication, hard work and professionalism. He had been a real soldier in the fight against GBV and had really carried the Committee through a difficult phase. The nation was indebted to them.

The Committee Secretary clarified that voting on the Bill was Friday 28 May as the Committee needs the A-List to vote on the Bill.

Domestic Violence Amendment Bill
The Chairperson asked Mr Robbertse to take the Committee through only the items that were not resolved.

Mr Sarel Robbertse, Senior State Law Advisor, DoJ&CD, said that there may be some consequential amendments on the definition of co-respondents if accepted by the Committee. He also needed guidance on how to further deal with the Bill. The Committee could deal with it on the basis that it is a Committee Bill due to the magnitude of amendments made to the Bill; in which case he would not have to draft an A-List.

The Chairperson asked for clarity on what he was saying about a Committee Bill.

Mr Robbertse explained usually when there are amendments to a Bill, one drafts an A-List indicating all the amendments. However, the magnitude of amendments effected to this Bill, are of such a nature that the Bill can probably be promoted as a Committee Bill. This means there is no need to draft an A List and the Bill itself will become the B version of the Bill. He proposed that the Bill be made a Committee Bill and that it proceeds on this basis.

The Chairperson asked for the implications of proceeding with the Bill as a Committee Bill.

Mr Robbertse replied that he did not think there were any real implications. Various other Bills were promoted as Committee Bills in the past where there were substantial amendments to the intended legislation. It was merely that one did not need to draft an A-List and the Bill itself becomes the B version of the Bill.

The Chairperson asked Members if they were fine with this.

Adv Breytenbach supported this.

Ms Maskeo-Jele said this was fine; however she asked if it was not initially a Committee Bill.

Ms Newhoudt-Druchen supported this if there are no implications.

The Chairperson asked Parliamentary Legal Services for guidance on this point.

The Committee Secretary, Mr Vhonani Ramaano, replied that the Bill would not be presented as a Committee Bill, but as a Re-Draft.

The Chairperson explained that for a Committee Bill, a different procedure was needed. For a Committee Bill, a different procedure is needed; it might need permission from the House.

Mr Swart said that the process with the National Assembly needs to be clarified and it might need to be clarified by Parliamentary Legal Advisor. The Committee did not want the process challenged by any person who was charged under the amendments. He wanted the Committee to be 100% sure that the process was correct as it was not introduced as a Committee Bill into Parliament. He supported Mr Robbertse and it could be done; but he did not want challenges about the change of an Executive Bill to a Committee Bill.

Mr Ramaano said that in terms of Rule 288 the Committee is welcome to present a Re-Draft, but not as a Committee Bill as this has another process and it might need to start from scratch. He confirmed that this was a Re-Draft in terms of Rule 288.

The Chairperson asked how a Re-Draft is different from how the other Bill has been processed.

Mr Ramaano explained that under normal circumstances, after deliberations, an A-List is developed which specifies all the amendments the Committee has agreed to; followed by a B-list; which would be the original Bill incorporating the A-List amendments. In this case, if the Committee goes for the Re-Draft, it would simply present the Bill as amended.

The Chairperson asked if there were any unintended consequences if this process is taken.

Mr Ramaano replied that there were none that he was aware of.

The Chairperson noted that Mr Swart sat on the Programme Committee and on the Chief Whips' Forum and asked if he had any preliminary views on the Re-Draft process.

Mt Swart said that he was busy reading the Rules. He tended to agree with Mr Ramaano and suggested that the Committee look at the re-drafting procedure in terms of the Rules. It was very important that the legal advisors give it advice to assist both Parliament and Mr Robbertse.

The Chairperson agreed and said the Committee should abandon the Committee Bill idea so as not to create too many challenges and to focus on the Re-Draft.

The Committee agreed.

Clause 2
Mr Robbertse said that this definition speaks to how documents should be stored in the integrated repository as per section 6A.

'coercive behaviour'
This definition still has options on what is regarded as domestic violence. His problem with Option 1 was that it speaks to conduct and then pressure. Whilst obviously conduct must create pressure, this is the shortcoming in the option. The second option has the problematic aspect of 'abusive behaviour towards the complainant.' He suggested Option 3 probably catered to each and every scenario intended by the definition.

The Chairperson asked for views on the options.

Mr Swart said that he supported option 3, but asked if there was advice from legal advisers.

Ms Newhoudt-Druchen said that option 2 seemed better to her, but perhaps the Committee could receive legal advice. She prefers option 2 as option 3 puts the onus on the complainant whilst option 2 indicates that the behaviour is towards the complainant. She felt that option 2 is clearer about the complainant being the victim. She would like parliamentary legal advice on this.

The Chairperson said that parliamentary legal advisers were not present and asked if the Department wanted to respond.

Mr Robbertse replied that option 2 does say that the behaviour is towards the complainant and it is covered by option 3 so it is neither here nor there.

Ms Newhoudt-Druchen agreed to option 3.

‘controlling behaviour.’
Mr Robbertse said there are two options. His problem is with the use of the term ‘subordinate’ in option 1. In option 2, the term ‘subservient’ is used. This is the main difference between the two definitions. Option 2 also includes an open list because of the use of the word ‘includes’ as not all conduct in (a)-(d) of option 1 may be covered. He proposed option 2.

The Chairperson asked Members what they preferred.

Ms Newhoudt-Druchen supported Mr Robbertse’s explanation of option 2.

Adv Breytenbach also supported it.

Co-respondent liability
Mr Robbertse noted that he had previously suggested that the Bill may need to provide for third party harassment and he had proposed a definition for 'co-respondent'. However, various clauses in the Bill would need to be amended; to include co-respondent and to make provision for a complainant to apply for a protection order against a co-respondent. He could have the amendments ready for 28 May. It was in the hands of the Committee if he should deal with this or if it could be dealt with at a later stage. He had pointed out the problematic aspect that there is a greater tendency that third parties are used to commit acts of domestic violence as well as to harass people. He asked for guidance on this.

The Chairperson said the Committee understood that Mr Robbertse was dealing with the biggest of the three GBV Bills. The Committee intended to approve the Bill on Friday 28 May and not to do a lot of deliberations on drafting on 28 May, therefore the more work that could be done today the better. If the Committee kept postponing, it would not be able to finish on 28 May and it would have to contend with the three-day rule in the next week. He pleaded that the Committee conclude as much as it could today.

Mr Robbertse asked if this meant that the Domestic Violence Act (DVA) amendment should not deal with co-respondent liability but leave it to a later stage to deal with this. It could be dealt with at the NCOP stage, but it could also be provided for, amongst other things, through the Judicial Matters Amendment Bill. Co-respondent liability is quite complex and it may take some time to finalise. He asked if he should take it out for now and only deal with respondent liability.

The Chairperson asked Members what they thought.

Ms Newhoudt-Druchen said that co-respondent liability should stay.

Adv Breytenbach said that she thought that it needed to stay in. However, Mr Robbertse was right in saying it was very complex. She suggested they see how far the Committee could get with it by 28 May but if the Committee finds that it is going to delay it and pull its programme out of sync completely, then it can consider other options; but it should try and keep it in.

The Chairperson thanked Members and asked Mr Robbertse to do as much as he could; making the necessary corrections and the Committee would look at it again on 28 May. They would continue and come back to it at the end of this meeting to give him specific guidelines.

'Criminal Procedure Act, 1997'
Mr Robbertse explained that this Act was inserted as a definition and he thought that it could be taken out. There was previously only a reference to a few Acts and he had intended to define all of the Acts in the definitions. However as definitions were being inserted for 'caretaker' and 'medical practitioner', amongst others, defining all the legislation in section 1 is probably not necessary. On interpretation, the first reference to an Act if made in full will be interpreted later on as a reference to the Act in the previous clause, so he was going to remove this.

‘damage to property'
The first option was currently in the Bill, but there were three other proposed options. Option 2 is problematic as it deals mainly with conduct that amounts to mental, psychological or emotional harm that is dealt with in terms of other conduct constituting domestic violence. Further, ‘related person’ as well as ‘harm’ are dealt with separately in new category of conduct amounting to domestic violence. Therefore the option is probably not appropriate. Option 3 deals with ‘related person’ once more, which is dealt with as a separate category of domestic violence. He proposed option 4 as the most appropriate definition.

Ms Newhoudt-Druchen supported option 4 as proposed by Mr Robbertse.

Ms Maseko-Jele supported option 4.

Ms Dellene Clark, South African Law Reform Commission researcher, continued as Mr Robbertse lost network connectivity. She said that Mr Robbertse had substituted the definition of 'disability' in response to the concerns raised in the previous meeting. She read the new definition out loud.

Ms Newhoudt-Druchen accepted the new definition.

Mr Swart accepted the new definition.

'domestic relationship'
Mr Robbertse said that the Committee had indicated that the last option was preferred for this definition. It had amongst other things defined persons in a domestic relationship as persons in a close relationship that shared or share the same residence. He asked if he could delete the other option.

Members agreed.

'domestic violence'
Mr Robbertse explained he prepared a footnoted option for domestic violence in respect of a child on page 9 of the document. The option in the footnote is in line with domestic violence legislation in other countries.

Mr Swart said that one would like to consider the implications of the option, but he thought that it did seem to limit, which was the idea. The example which the Committee was concerned about was whether where a parent said 'if you don't do this, I am going to do that' also fell within this scope. It did seem to be a bit more preferable. He did prefer the footnoted hD, but it needed to be looked at because of its implications. However, he was cognisant of the massive time constraint. He appreciated the redraft and thanked Mr Robbertse.

The Chairperson confirmed that Mr Swart preferred option hD.

Adv Breytenbach said it needed to be looked at but she supported it.

'elder abuse'
This had a preferred option 2, so he did not deal further with it

'emergency monitoring relief'
He would regard this as the preferred option.

'emotional, verbal and psychological abuse'
Mr Robbertse noted that Mr Swart had raised this in response to 'religious abuse'. The Committee had previously raised the unintended consequences of option 2 which was again raised by Mr Swart.

Mr Swart said that he could not remember any major objections, but he thought that this buttressed the argument that one did not need the definition of spiritual abuse because it is basically contained in this definition. He thought that the Committee had already arrived at a version but he the appreciated the additions in green.

There was a suggestion to remove the definition of 'harm' and this was preferred by the majority.

The new open-ended definition using the word ‘includes’ as opposed to ‘means,’ but Mr Robbertse thought that this was only raised by one person.

Mr Swart said he was happy to keep as ‘means’ for the sake of progress. He thought that 'any part of any structure' is very broad and so was prepared to withdraw this.

'spiritual abuse'
There are three options. Option 2 suggested by Mr Swart and option 3 was to delete it.

The Chairperson said that that as per the discussion, Mr Swart would prefer to delete 'spiritual abuse'. However he did a lot of work on option 2 so if deletion was not accepted, the preferred option was option 2.

Mr Swart thanked the Chairperson for the summary, saying that it was correct.

The Chairperson asked if this should not be aligned with an earlier decision taken on sexual offences [inaudible 2:59:00].

Clause 2B: Obligation to report of domestic violence and to provide information
Mr Robbertse said that this proposed clause 2B criminalises non-reporting of domestic violence against a child or a person with a disability. This needed to be considered and discussed by the Committee as he needed guidance. Either the Committee criminalises non-reporting of domestic violence in respect of children, disabled people or older people, or it does not criminalise the failure to report.

The Chairperson asked the Committee if this should not be in line with its decision on the Sexual Offences Bill.

Adv Breytenbach said she agreed.

The Chairperson said in the Sexual Offences Bill it chose to criminalise it and it created a penalty of about five years for failing to report. He suggested that it needed something in this case.

Mr Robbertse said that he would keep the criminalisation in this Bill.

Clause 3: Arrest by a peace officer without a warrant
This aspect had not been completely resolved. This deals with a person committing domestic violence, which amounts to an offence referred to in section 17(1)(a) in contravention of a protection order. The provisions in both the Bill and the DVA require the complainant to make an affidavit and give the warrant of arrest issued by the court to a police official. In terms of 17(1)(b), it allowed a police official the powers to arrest a person for an offence without a warrant – which was contravention with other provisions in the Bill. It may be problematic to retain the clause, but this was up to the Committee to decide.

The Chairperson asked Members what their view was.

Adv Breytenbach agreed, saying Mr Robbertse was correct in saying that it flies in the face of other provisions in the Bill. Police officers and peace officers, which are different, already have the ability to arrest without a warrant. She suggested that Mr Robbertse summarise what the issues are with the other provisions with the Bill so they could all apply their minds to it.

Ms Newhoudt-Druchen agreed and asked how it conflicts with other parts of the Bill.

Mr Robbertse explained that clause 12 amending section 8(4) provides that a warrant of arrest and affidavit in addition to the court order must be handed over to a South African Police Service (SAPS) member who may then either arrest a respondent or give him a written notice to appear in court, where the affidavit sets out factual allegations that the respondent contravened a protection order. In clause 3(1)(b) this whole procedure could be side-stepped. A peace officer may without warrant or affidavit, arrest a person who they reasonably suspect of contravening a protection order. This is the conflict between the specific requirements that need to be adhered in section 8(4) and clause 3(1)(b).

Adv Breytenbach said that the provisions are mutually destructive and this was a problem as the Committee would have to pick one. She did not see how it could have both, although Mr Robbertse was free to correct her. She supported that a police officer may arrest without a warrant under strict circumstances where he reasonably suspects someone of having committed an element of violence. Given the current position on domestic violence and the very weak position that victims of domestic violence find themselves in, she did not know how it would resolve the conflict.

Ms Clark said that in terms of clause 3 there is no warrant. In terms of section 8, once there is a protection order, then one does have a warrant. It is therefore not necessary to have the contravention of section 17(1)(a) in this clause at all because you have a warrant. Once the protection order has been breached, the suspended warrant of arrest is activated and the police officer will have the discretion to arrest or not based on the circumstances. This is why she did not suggest it be included in clause 3.

Adv Breytenbach said this explanation made sense and she was happy with it.

The Chairperson asked if Members were happy for clause 3(b) amending section 17(1)(a) to be deleted.

The Committee agreed.

Section 4(5)
Mr Robbertse said that the Committee preferred the first option but he was asked to propose further amendments to narrow it down. He submitted that it was fine as is and there was no need for to narrow it down because if harm is suffered by a complainant, this is adequate for an after-hours interdict.

Amendment of section 7(11)
This clause deals with the powers of a court to prohibit certain conduct. He did not think that there was a problem with the current insertion. It was merely a re-statement of the current position which differentiates between electronic communications providers and any other order the court can give.

Subsection (b) on page 56 on relief granted by the court was previously considered by the Committee. He submitted that the court had a broad discretion. Ms Newhoudt-Druchen had said that the discretion needed to be limited to 'must'. He suggested that the current subsection (b) does not contain any such provision. It is therefore a broad discretion to grant and restrict under certain conditions.

The Chairperson asked if Ms Newhoudt-Druchen still had the same view on 'may' or 'must'.

Ms Newhoudt-Druchen replied that as it was explained that the courts powers cannot be interfered with, she would accept ‘may.’

Amendment of section 8
Mr Robbertse said that these circumstances must be considered by a SAPS member before deciding to arrest a respondent of a protection order. There were suggestions that it must consider paragraph (c) and (d) on pages 56 and 57 and decide if they should be deleted or retained.

Adv Breytenbach said if there was not a counter-view, it should be retained.

Mr Robbertse said this brought the deliberations to the end. The redrafts should be ready by 28 May.

The Chairperson asked what guidance he needed on 'co-respondent'.

Mr Robbertse said that he needed guidance on how to deal with it in the Bill. It could be included, amongst other things, to provide that the respondent includes a co-respondent and the remainder of the Act would then be applicable to be a co-respondent. He needed to check if it is in conflict with other definitions in section 1, especially 'complainant,’ but this could be resolved. There need to be circumstances specified in the Bill where the complainant may utilise the DVA for the purpose of a protection order against a third party. Criteria need to be specified whether it will only be applicable to the Protection from Harassment Act. Proposed section 4A that deals with safety notices that may be issued was one that needed amendment to deal with the availability of police officials. This Bill has already been re-drafted to give effect to this. He can give first draft on this by tomorrow afternoon.

The Chairperson asked Members if it can conclude 'co-respondents' on Friday 28 May before it votes on the Bill.

Adv Breytenbach agreed.

The Chairperson said the Committee would meet on 28 May to conclude the outstanding matters, failing which it would meet on Saturday. He asked if Mr Robbertse was able to be done by 28 May.

Mr Robbertse said that he was able to conclude amendments by the afternoon of 27 May, or if need be, he would conclude them by 28 May.

The Chairperson said the Committee should work to conclude the Bill by 28 May or Saturday at the latest. He thanked Mr Robbertse for his hard work, considering this was the biggest of the Bills. He thanked Members for their hard work, deep patriotism to the country irrespective of their different party ideologies. They had proved that they were committed South Africans who loved their country dearly.

The Chairperson asked for permission to sign off on the Land Court Bill so that it could go for public comment as soon as possible. He proposed eight weeks for public comment for the Bill given the Deputy Minister’s comment that the executive did not invite public comment.

The Committee needed to seriously think of a programme for conducting oversight because if it did not, it would finish its five years without conducting oversight. He thought that in the first two weeks of the third term, it should conduct oversight. He knew Members had been complaining about the Master's Office. If Members were in agreement, a programme could be circulated for oversight visits before it adjourned next week. It is important that it do this in the third term as it is one of the Committee's core functions to have oversight over the legislation it makes and over the executive.

Mr Swart supported the eight weeks recommendation. The Committee also needed to consider other pressing legislation as well and if there are any Constitutional Court deadlines for Amendment Bills. He looked forward to receiving the programme.

The Chairperson said he thought this was very fair and that it would be taken into account, including pending Constitutional Court deadlines.

Adv Breytenbach and Ms Maseko-Jele agreed.

The Chairperson thanked everyone for their work. Everyone had been a shining star during the difficult term and he particularly thanked Mr Robbertse and his team.

The Committee would now go to the National Assembly and pay tribute to Ms Jacqui Mofokeng, their Committee Member who had passed away.

The meeting was adjourned.

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