Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill: Department briefing on public submissions; with Deputy Minister

NCOP Security and Justice

23 July 2021
Chairperson: Ms S Shaikh (ANC, North-West)
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Meeting Summary

Video: Select Committee on Security and Justice, 23 July 2021

Tracking GBV Bills in Parliament

The Committee was briefed by the Department of Justice and Constitutional Development in a virtual meeting on the written submissions received on the Criminal (Sexual Offences and Related Matters) Amendment Bill [B16B-2020]. Several organisations had submitted comments pertaining to the Bill’s proposed amendments to extend the ambit of the offence of incest, to introduce a new offence of sexual intimidation, to regulate the inclusion of the particulars of persons on the National Register for Sex Offenders, and to regulate the reporting duty of persons who were aware that sexual offences had been committed against children.

It was reported that the majority of submissions supported the Sexual Offences Amendment Bill. The written submissions were presented to the Committee, along with the responses from the Department.

The Deputy Minister referred to the publication of the National Register for Sex Offenders, and said it should be kept in mind that South Africa had a history of vigilantism, which was one of the main concerns about making it public. Members of the public were free to make an application to check whether someone was listed on the Register, but such an application came with conditions that the application must not be frivolous or vexatious, and that the person who submitted the application must have an interest in the disclosure of such information. A further requirement was that the disclosure of such information must be in the interests of an identifiable vulnerable person.

The concerns regarding making the Register public involved its restrictions on employment. The Bill ensured that everyone who had committed a sexual offence would have their names added to the Register. The issue of the decriminalisation of sex work became applicable to the questions raised in the National Assembly as to whether people who had been convicted of buying or selling sex would be included on the Register. This would need engagements with stakeholders and activist organisations, as sex workers were not predators and should subsequently not be included on the Register. However, people who rape or sexually assault sex workers would have their names included on it.

The Committee welcomed the briefing, expressing the view that expanding the scope of the National Register of Sex Offenders for all sex offenders should be welcomed as an effort to prohibit them from working with, or having access, to children or persons who were mentally disabled, and said that this would go a long way towards protecting vulnerable people.

The Chairperson said that the issue of sex work fell beyond the scope and ambit of the Sexual Offences Amendment Bill, but that it should be a matter for the Committee to discuss when engaging with the decriminalisation of sex work in the future.

Meeting report

The Chairperson convened the virtual meeting, and welcomed Members and the delegation from the Department of Justice and Constitutional Development (DOJCD). Mr John Jeffery, Deputy Minister, DOJCD, was also in attendance.

The purpose of the meeting was for the Committee to be briefed by the Department on the written submissions received on the Criminal Law (Sexual Offences and Related Matters) Amendment Bill [B16B-2020] as it pertains to the Amendment Bill’s proposed amendments to extend the ambit of the offence of incest, to introduce a new offence of sexual intimidation, to regulate the inclusion of the particulars of persons on the National Register for Sex Offenders, and to regulate the reporting duty of persons who were aware that sexual offences had been committed against children.

The Chairperson said that the Committee had previously received a briefing from the Department on 23 June 2021 relating to three amendment Bills on the issue of gender-based and domestic violence. These included the Criminal Law (Sexual Offences and Related Matters) Amendment Bill [B16B-2020], the Criminal and Related Matters Amendment Bill [B17B-2020], and the Domestic Violence Amendment Bill [B20B-2020]. Public comments were received between 11 June and 16 July 2021, to ensure sufficient time for the public and stakeholders to make submissions on the proposed legislative changes. A total of 87 submissions had been received on the three Amendment Bills, and the majority of these submissions expressed support for the proposed legislative changes. This meeting was to engage with the submission received on the Sexual Offences Amendment Bill.

Sexual Offences Amendment Bill: Briefing on written submissions

The main item on the agenda was for the Committee to be briefed by the Department on the written submissions received on the Sexual Offences Amendment Bill. Ms Kalyvani Pillay, Deputy Director-General (DDG): Legislative Development, presented the briefing, which focused on Departmental responses to the written submissions.

Opening remarks by Deputy Minister

Deputy Minister Jeffery said that the task of the National Council of Provinces (NCOP) was to consider the submissions received, although the Sexual Offences Amendment Bill had been proposed in terms of section 75 of the Constitution. The NCOP was limited to proposing amendments rather than being able to amend them, as was the case with any proposed Amendment Bills in terms of section 76 of the Constitution. The provisions of the Sexual Offences Amendment Bill were those that had remained after extensive engagements in Parliament. The Sexual Offences Amendment Bill focused predominantly on the proposed amendments to extend the ambit of the offence of incest, to introduce a new offence of sexual intimidation, to regulate the inclusion of the particulars of persons on the National Register for Sex Offenders and its publication, and to regulate the reporting duty of persons who were aware that sexual offences had been committed against children.

Regarding the publication of the National Register for Sex Offenders, he said that South Africa’s history of vigilantism was one of the main concerns about making it public. Members of the public were free to make an application to check whether someone was listed on the National Register for Sex Offenders, but such an application came with conditions that the application must not be frivolous or vexatious, and that the person who submitted the application must have an interest in the disclosure of such information. In addition, one of the requirements was that the disclosure of such information must be in the interests of an identifiable vulnerable person. The concerns with making the National Register for Sex Offenders public involved its restrictions on employment. The Sexual Offences Amendment Bill ensured that everyone who had committed a sexual offence would have their names added to the National Register for Sex Offenders.

He added that the Bill further expands the definition of a ‘person who is vulnerable’ and enjoys protection to include women under the age of 25 years who receives tuition at a higher education college, higher education institution or university college, as defined in section 1 of the Higher Education Act 101 of 1997; or who receives vocational training at any training institute; or women who live in a building, structure or facility used primarily as a residence. It also includes any person who was being cared for or sheltered in a facility that provides services to victims of crime, elderly persons, and people with physical, intellectual, or sensory disabilities, to expand the scope of vulnerable people to be protected. The purpose of the expansion of the definition of a ‘person who is vulnerable’ was not to include all vulnerable people, but that it was rather focused on limiting situations where people were employed to work with vulnerable groups.

As a last comment, he said that the issue of the decriminalisation of sex work became applicable to the questions raised in the National Assembly as to whether people who had been convicted of buying or selling sex would be included on the National Register for Sex Offenders. He noted the need to engage with stakeholders and activist organisations in this regard, but said that sex workers were not predators and should subsequently not be included in the Register. However, people who rape or sexually assault sex workers would have their names included in the register.

Summary of submissions received

The first table of the document outlining the submissions received (see attached) gave an indication to the Committee of those individuals who were opposed to the Sexual Offences Amendment Bill. The Department could not respond to submissions that opposed the Bill if no reasons were given for the commentators’ lack of support. However, the majority of submissions supported the Bill.

One submission noted that the South African Police Services’ (SAPS) Criminal Record Centre was a much more reliable system, and did not support the National Register for Sex Offenders. The response had been that the Committee had received extensive reports and decided to retain the register. It was also noted that only an accurate and up to date register of sexual offenders of children would be helpful. One submission supported the proposed expansion to include all vulnerable groups. Another submission noted that there needed to be a deliberate and clear intention to exclude people convicted under the sex work provisions of the Bill, and the Department had responded that the issue of sex work would receive the necessary attention.

Regarding Clause 1 of the Bill, the following submissions were received:

  • The Law Trust Chair in Social Justice commented that the ambit of the phrase “persons who are vulnerable” should be revised, because all women were vulnerable to sexual violence. It was responded that extending the definition of “persons who are vulnerable” would throw the net too wide, and would give rise to difficulties in the implementation of the provisions of Chapter 6. In addition, extending the definition to include all women may give rise to unintended consequences, such as potential employers becoming reluctant to employ females. The categories of persons who had been identified for inclusion in the definition were regarded as those persons who were more vulnerable than others. The DOJCD noted the comment by the Legal Resources Centre that supported the proposed inclusion of persons who were vulnerable, and not restricting the protection afforded to children and persons who were mentally disabled.
  • In addition, the comments from the Active Citizens Movement Youth Sub-Committee were also noted by the Department, in that the proposed amendment would prevent violators of persons who were vulnerable and whose particulars were to be included in the National Register of Sex Offenders from having any authority over persons who were vulnerable.

Regarding Clause 3, the following submissions were received:

  • The Legal Resources Centre expressed concern that children did not receive immunity from prosecution where a child may have been groomed over a long time and then consents to a sexual act, and it was recommended that an exception should be created for children. The Department of had responded that the proposed amendment should be read with the proposed amendment of section 56, which aims to ensure that children or persons who were children when the sexual act was first committed were not prosecuted for contravening section 12.
  • The Active Citizens Movement Youth Sub-Committee recommended that the adult should be found guilty of the second sexual offence. In this regard, it was responded that it would not introduce the provisions as proposed, because the adult person could always be convicted of the more serious offence.  It should be kept in mind that a child under the age of 12 years could not consent to sexual acts, and acts of this nature would automatically constitute rape or sexual assault. In the case of 12- to 16-year-olds, the charge brought against the adult person could be that of rape or sexual assault.

Regarding Clause 4, the following submissions were received:

  • The Law Trust Chair in Social Justice supported the proposed new section, but objected to the inclusion of the phrase “imminent,” which raises the question as to how a victim should determine whether harm was imminent or not. The commentator argued that the threat to sexual violence, whether imminent or not, should be taken seriously, and recommended that the word “imminent” should be removed from the provision. The “imminent” requirement was a requirement of the common law offence of assault, and the proposed new offence of “sexual intimidation” was based on the common law offence. To remove the “imminent” requirement would result in a provision that was vague.  It was expected that offences were in clear and precise language to ensure that citizens knew precisely what type of conduct was criminalised.
  • The Legal Resources Centre supported the proposed new provision and expressed the view that the provision would go a long way towards protecting persons who were vulnerable. In addition, the Sisonke National Sex Worker Movement regarded the provision to be of benefit to sex workers who had been victims of acts of intimidation. The feasibility of the provision was questioned in view of the criminalisation of sex work as a sex offence. The proposed new offence would apply equally in respect of any person, irrespective of their background, who fell victim to the defined actions.

Regarding Clause 5, the following submissions were received:

  • The Centre for Child Law argued for an extension of the definition of “person who is vulnerable,” and recommended that the SAPS’ Criminal Record Centre be used in place of the National Register of Sex Offenders. It was also argued that the definition of “sexual offence” opened the door to increase the amount of historical data to be included in the National Register of Sex Offenders. It was responded that extending the definition of “persons who are vulnerable” would throw the net (ambit of Chapter 6) too wide, and would give rise to difficulties in the implementation of the provisions of Chapter 6.In addition, extending the definition may give rise to unintended consequences whereby potential employers may become reluctant to employ certain categories of persons. The categories of persons who have been identified for inclusion in the definition were regarded as those persons who were more vulnerable than others. The Committee had received extensive reports from the DOJCD and the SAPS on the National Register of Sex Offenders system and the SAPS Criminal Record system, and in the end had decided to retain the National Register of Sex Offenders where it was currently housed. Paragraph (b) of the definition of “sexual offence” intends that the additional particulars to be included should apply prospectively.
  • The Law Trust Chair in Social Justice supported the proposed amendments to section 40, but finds the phrase “person who is vulnerable” problematic.  The category of persons who are vulnerable was much larger than defined in the proposed definition. It was recommended that it should clarify who in institutions of higher learning should have the responsibility to report sexual offences. The Law Trust Chair in Social Justice expressed the view that all females were vulnerable, and not only the category referred to in the proposed definition.  Males, particularly males who were members of the lesbian, gay, bisexual, transgender, queer, intersex and more (LGBTQI+) community, were vulnerable and should be included in the definition. This was so that the category of vulnerable persons was wider than the proposed definition, but it should be kept in mind that Chapter 6 regulates the employer and employee relationship, and by expanding the ambit of the definition, it would have a major impact on the South African workforce. The obligation to report sexual offences, was contained in section 54 of the principal legislation. It remained the prerogative of any employer to implement systems and procedures in order to ensure that section 54 was complied with. Extending the definition of “persons who are vulnerable” would throw the ambit of Chapter 6 too wide, and would give rise to difficulties in the implementation of its provisions.
  • The Sex Workers’ Education and Advocacy Taskforce (SWEAT) expressed concern that the National Register of Sex Offenders applied retrospectively and prospectively. Sex workers who had been found guilty of any sex work related offence in the past -- including, but not limited to, solicitation, living in a brothel, working in a brothel -- could find themselves on the register regardless of whether they still worked in the sex industry or not. The definition of “sexual offence” aimed to accommodate the proposed extension of the ambit of Chapter 6. Currently Chapter 6 applied only in respect of persons who had been convicted of sexual offences against children and persons who were mentally disabled.  Since the ambit of Chapter 6 was to be extended to include the particulars of persons who had been convicted of any sexual offence, care was taken to ensure that the proposed paragraph (b) of the definition of “sexual offence” was applied only prospectively. The inclusion of sex workers as persons who were vulnerable would extend the ambit of Chapter 6 so wide that it might become impossible to implement. The proposal was not supported.
  • The Legal Resources Centre expressed concern that the inclusion of females under the age of 25 in the definition of “persons who are vulnerable” would not pass constitutional muster, because it differentiated between women who were in higher education institutes and those who were not; it differentiated between women who were under 25 and those who were not; and it may be interpreted as doing harm to the movement for equal rights for women. Females who were under the age of 25 years and who found themselves in educational institutions were identified as particularly vulnerable to becoming victims of sexual offences, especially in view of past incidents at educational institutions.
  • The Sisonke National Sex Worker Movement was concerned about the definition of “sexual offence,” that sex workers who had been convicted under the Sexual Offences Act of 1957 would be included in the list of those who would be added to the National Sex Offenders Register, and would be unable to work with children, adopt or foster, or work with any “vulnerable person,” which includes any women under the age of 25. It was submitted that the provisions should apply equally to all persons who had been convicted of sexual offences that had been committed against children and persons who were mentally disabled.  Any distinction to be introduced would be difficult to justify, among others, on the grounds of equality and the equal protection of the law.
  • The Asijiki Coalition for the Decriminalisation for Sex Work submitted that sex work should be decriminalised.  The continued criminalisation of sex work, according to them, perpetuates continued violence against persons, in particular women who conduct sex work. The proposed decriminalisation of sex work fell beyond the ambit of the Sexual Offences Amendment Bill, and was a matter that would require separate consideration.
  • The Post Office to Parliament task team submitted that the definition of “persons who are vulnerable” needed to consider that there were also numerous groups of people who could be considered equally, or even more, vulnerable than the selected demographics. On what basis were female students deemed more vulnerable than other women? Why were they considered more vulnerable than women who live in rural areas or informal settlements, experiencing high levels of violence? These arbitrary distinctions between which persons were and were not considered vulnerable were problematic. Moreover, females were not the only people who experience sexual violence in tertiary education institutions. The formulation unnecessarily excluded males and members of the LGBTIAQ+ community who were also at risk of experiencing sexual abuse in tertiary education institutions. It was accepted that the category of vulnerable persons was wider than the proposed definition, but it should be kept in mind that Chapter 6 regulates, to a large extent, the employer and employee relationship and by expanding the ambit of the definition would have a major impact on the South African workforce. The inclusion of members of the LGBTQI+ community may give rise to a number of unintended consequences including, for example, that potential employers would be required to enquire whether a potential employee identified with the LGBTQI+ community, which would give rise to privacy concerns.
  • Sonke Gender Justice recommended that the age restriction of 25 years for females should be removed, and that all women should be regarded as persons who were vulnerable. In addition, it was recommended, with regard to the definition of “sexual offence,” read with section 50 of the principal legislation, that it should be clarified that sex workers were not included within the ambit of the definition. Extending the ambit of Chapter 6 too wide would give rise to concerns regarding the implementation of the provisions of the Chapter, which would have a negative impact on the efficacy of the National Sex Offenders Register system. It was conceded that the definition might be confusing. An amendment to the definition and section 50 of the principal legislation would clarify the position.  It should be kept in mind that paragraph (a) of the definition applied to sexual offences that had been committed against children and persons who were mentally disabled, and not to all sexual offences. The Department would submit a proposed amendment to the Select Committee on Security and Justice for consideration.
  • Just Detention International recommended that persons in detention in correctional and other facilities should be included in the definition of “persons who are vulnerable”. The extension of the definition of “persons who are vulnerable” would have a detrimental impact on the efficacy of the National Sex Offenders Register, and may lead to an unmanageable increase in applications being submitted to the Register for certificates to be issued. There was also a submission that women who were older than 25 should also be included in the definition of “persons who are vulnerable”. Extending the ambit of Chapter 6 too wide would give rise to difficulties in the overall implementation of the provisions, which would have a negative impact on the efficacy of the system.
  • Regarding the submissions made by the Active Citizens Movement Youth Sub-Committee (see attached), it was noted that its statement was not correct to the extent that paragraph (d) of the definition refers to persons with physical, intellectual, or sensory disabilities who receive care in care facilities. Extending the ambit of Chapter 6 too wide would give rise to difficulties in the implementation of the provisions of the Chapter, which would have a negative impact on the efficacy of the National Sex Offenders Register system. Chapter 6 regulates, to a large extent, the employer and employee relationship, and expanding the ambit of the definition would have a major impact on the South African workforce. The inclusion of members of the LGBTIAQ+ community may give rise to a number of unintended consequences including, for example, that potential employers would be required to enquire whether a potential employee identified with the LGBTIAQ+ community or not, which in turn would give rise to privacy concerns. Extending the ambit of the definition to include all elderly persons would throw the net too wide. It was decided to focus only on elderly persons who were cared for in certain facilities, because they were considered to be particularly vulnerable compared to their self-reliant counterparts.

Regarding Clause 6, the following submissions were received:

  • The Member of the Executive Council (MEC) for Social Development of the Western Cape commented that the ambit of the proposed amended section 41 was too wide, and would include scenarios where, for example, persons who worked in shopping malls where young persons “congregate or are present” would have to be vetted against the National Sex Offenders Register. It was proposed that the provision should be redrafted in order to avoid the very wide ambit of the provision and the unintended consequences associated therewith. It was proposed that the words “where children are present or congregate” should be omitted from the provision, which would address the concern that had been expressed.
  • Sonke Gender Justice expressed concern that section 41 did not include volunteers or members of the clergy, and recommended that the clergy should expressly be provided for. It was submitted that paragraph (b), by the use of the words “in any other manner, places him or her in a position of authority, supervision or care of a person who is vulnerable,” was wide enough to include the clergy.
  • The South African Human Rights Commission (SAHRC) recommended that the phrase “persons with mental disabilities” should rather be used, and not “persons who are mentally disabled.” The Department does not oppose the proposal, but it should be kept in mind that the term “person who is mentally disabled” is defined in section 1 of the principal legislation, which provision does not form part of the ambit of the Sexual Offences Amendment Bill.

Regarding Clause 10, the following submissions were received:

  • The Centre for Child Law was concerned about the resources allocated to the administration of the National Sex Offenders Register, and the impact thereof on its effectiveness. It expressed the view that the Register did not protect vulnerable persons, and was of the view that the SAPS Criminal Record Centre was a much more effective system.  The SAPS system provides a full picture of a person’s criminal history. In addition, the Centre for Child Law complained that it had been unable for a period of five years to obtain accurate information on child offenders whose particulars had been included in the National Sex Offenders Register. The Registrar had indicated that the Register was fully functional and that additional personnel would be allocated to the Office of Registrar. The Department had identified some positions which would be filled on a permanent basis, and others on a temporary basis. The National Sex Offenders Register had been introduced in the country mainly as a prevention tool against the exponential growth of sex crimes. It was a national repository intended to guide research initiatives necessary to assist South Africa in finding the much needed antidote to the rising figures of sex crimes; determining sex offending trends and the profiles of sex offenders and victims; assisting the country in appropriating prevention, response and care programming towards establishing a society free from sexual violence; assisting the government in channelling resources where they were most needed; protecting children from national and international paedophilia; and preventing new and repeat sex offending, etc. The reason why the SAPS’ Criminal Record Centre was not an option was deliberated at length until a conclusion had been reached to retain it.
  • The MEC for Social Development of the Western Cape stated that section 15A had not yet commenced. It was not necessary to introduce a special provision in this regard, because the proposed new section 44B power would become enforceable only once section 6 had commenced.

The submissions regarding clauses 7(b), 8, 9, 11, 12, 13, 17, 19, and 23 were also briefly outlined to the Committee, but these submissions were less extensive (see the attached summary).

Discussion

The Chairperson thanked the Deputy Minister and the delegation for the briefing made on the submissions for the Sexual Offences Amendment Bill. She said that the issues emanating from the briefing were similar to those that had been raised in previous deliberations with stakeholders and the Department.

Mr T Dodovu (ANC, North-West) welcomed the briefing, and said that the Sexual Offences Amendment Bill would go a long way in helping society to transform to what was envisaged in the Constitution. He referred to the fact that victims suffered from trauma alongside prejudicial treatment from other people, and said it was tragic that there were still people who discouraged victims from reporting sexual offences. He referred to the sexual offence of grooming, and said this was understood as being when a person educates or trains the victim or child for abuse at a later stage. He asked for clarity on the timeframes in this regard. Regarding the National Register of Sex Offenders, he asked for information on how it would be kept secure, accurate and up to date.

The Chairperson said that expanding the scope of the National Register of Sex Offenders for all sex offenders was welcomed in efforts to prohibit them from working with, or having access to, children or persons who were mentally disabled, and that this would go a long way towards protecting vulnerable people. She appreciated the responses from the Department with regard to the capacitation of the National Register of Sex Offenders' system, to ensure it was adequately staffed. She said that the issue of sex work fell beyond the scope and ambit of the Sexual Offences Amendment Bill, but that it should be a matter that the Committee should discuss when engaging with the decriminalisation of sex work.

Deputy Minister Jeffrey added that people who discouraged victims from reporting sexual offences could be found guilty of an offence relating to the obstruction of justice, especially when bribes were involved. Regarding sexual grooming, he said that a person may be convicted in terms of section 12 if one person was under the age of 18 years old, and the other person exercised power or authority over that person, or that a relationship of trust existed. The whole issue of children being manipulated and groomed to eventually consent to certain sexual acts was a concern that had played heavily on the legislative mind from the beginning, when the current legislation was enacted.

The Chairperson thanked the delegation for the briefing, and thanked Members in attendance for their inputs. The Committee would deliberate further on the Sexual Offences Amendment Bill in the future.

The meeting was adjourned.

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