GBV Bills: Department on proposed amendments

Meeting report

The Chairperson convened the virtual meeting, welcomed Members and the delegation from the Department of Justice and Constitutional Development (DoJ&CD) to the meeting. The agenda was for the Committee to be briefed by the Department on the proposed amendments to 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], as agreed upon after consideration of the written submissions.

The delegation from the Department of Justice and Constitutional Development consisted of Ms Kalay Pillay (Deputy Director-General: Legislative Development), Mr Makubela Mokulubete (State Law Advisor), Ms Ntombi Mnyikiso (State Law Advisor), Mr Henk du Preez (Senior State Law Advisor), Ms Patricia Whittle (Parliamentary Researcher), and Mr Phomolo Sekgobela (Parliamentary Liaison Officer).

The Chairperson reminded Members that the Committee received a briefing from the Department of Justice and Constitutional Development on 23 July 2021, which outlined the written submissions received on the Sexual Offences Amendment Bill, along with the departmental responses to the comments received. On 28 July 2021, the Committee also received a briefing about the written submissions and departmental responses on the Criminal and Related Matters Amendment Bill as well as the Domestic Violence Amendment Bill. It was agreed that the Department and the Parliamentary Legal Advisors would look into the submissions and deal with the drafting of the proposed amendments. There were no proposed amendments to the Criminal and Related Matters Amendment Bill. The goal of the meeting was for the Department to guide Members through the proposed amendments for the Sexual Offences Amendment Bill and the Domestic Violence Amendment Bill.

Briefing by the DoJ&CD on the proposed amendments

The only item on the agenda was for the Committee to be briefed by the Department of Justice and Constitutional Development on the proposed amendments to 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] as agreed upon after consideration of the written submissions. Mr Henk du Preez, State Law Advisor, briefed the Committee.

Criminal and Related Matters Amendment Bill [B17B-2020]

It was reported that there were no amendments made to the working draft for the Criminal and Related Matters Amendment Bill. The previous draft of this Amendment Bill remains as was previously reported to the Committee by the Department.

Criminal Law (Sexual Offences and Related Matters) Amendment Bill [B16B-2020]

For the Sexual Offences Amendment Bill, an amendment was made to insert a new clause that amends section one of the Criminal Law (Sexual Offences and Related Matters) Amendment Act (Act 31 of 2007). The South African Human Rights Commission (the SAHRC) recommended that the phrase “persons with mental disabilities” should rather be used and not “persons who are mentally disabled”. The Department previously indicated that it did not oppose the proposal, but it should be kept in mind that the term “person who is mentally disabled” is defined in section one of the principal legislation, which is not within the ambit of the Sexual Offences Amendment Bill. It was then proposed that such a commitment be included in the definition of a ‘vulnerable person’ in the Sexual Offences Amendment Bill. This has necessitated other consequential amendments. The insertion of a new clause entails that the wording, as recommended by the SAHRC, should be adopted and used throughout the Sexual Offences Amendment Bill to refer to persons with mental disabilities. These amendments are technical in nature and were enacted throughout the Sexual Offences Amendment Bill. This necessitated a renumbering of the clauses in the Sexual Offences Amendment Bill, which is a technical amendment. In addition, references to “persons who are mentally disabled” were replaced with the appropriate phrase throughout the document.

Regarding the issue of sex workers running the risk of having their names added to the National Registry of Sex Offenders, it was reported that people who sell sex cannot be considered as sexual predators for the purposes of the National Registry of Sex Offenders. Clause no. five of the Sexual Offences Amendment Bill was amended to exclude the reference to section 11 of the principal legislation. In addition, technical amendments were made to Clause no. six to ensure the correction of terminology used as ‘a person who is vulnerable’.

A new clause (for insertion after the renumbered Clause no. 26) was inserted regarding the amendment of section 57 of the principal legislation, to substitute the heading for “Inability of children under 12 years and persons with mental disabilities to consent to sexual acts”. The terminology of referring to persons with mental disabilities was also corrected in the proposed amendments to section 57 of the principal legislation.

The Chairperson thanked the delegation from the Department of Justice and Constitutional Development for the briefing on the proposed amendments to the Sexual Offences Amendment Bill. She said that the proposed amendments are in line with the Committee’s deliberations and that a lot of the amendments are technical in nature resulting from amending the reference to persons with mental disabilities.

Domestic Violence Amendment Bill [B20B-2020]

It was reported that the amendments to the Domestic Violence Amendment Bill are in line with the written submissions and comments received and the commitment to using gender-neutral language. The amendments were technical in nature and included the insertion of indexes in Clause no. one. In Clause no. two, the definition of ‘close relationship’ was inserted with the meaning assigned to it being a relationship between the complainant and another person, whom the court, with regard to certain criteria, may consider as a close relationship of a person and the complainant. The criteria include the degree of trust between the persons, the level of each person’s dependence on the other, the length of time that the relationship has been in existence, the frequency of contact between the persons, and the degree of intimacy between the persons.

This definition has been amended in response to many submissions on the Domestic Violence Amendment Bill, to be more gender-neutral and to provide more clarity. In addition, many of the clauses were amended to replace gender binary references such as ‘he’ and ‘she’’ with the more gender-neutral term’ they’ or ‘their’. In addition, various changes were made for the renumbering of the clauses and subsections to be logically structured. Grammar and spelling corrections were also made in the Domestic Violence Amendment Bill. Amendments were also made where the submissions indicated a lack of clarity in the provisions.

The definition of ‘functionary’ was replaced with the meaning of a medical practitioner, healthcare personnel, a social worker, an official in the employ of a public health establishment, an educator, or a caregiver, or any other person designated in terms of section 2A(3). This definition was cleaned up to provide more clarity. A clause was also inserted, empowering the designated Minister to deem certain categories of persons as functionary for the purposes of the Domestic Violence Amendment Bill and its principal legislation. The majority of amendments to the Domestic Violence Amendment Bill were to improve the readability of the provisions to ensure that gender-neutral terms are used and to ensure correct spelling and grammar.

The Chairperson thanked the delegation from the Department of Justice and Constitutional Development for the briefing on the proposed amendments to the Amendment Bills under discussion. There are still some areas needing further consultation with the Parliamentary Legal Advisors.

The meeting was adjourned.