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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
29 January 2004
CRIMINAL LAW (SEXUAL OFFENCES) AMENDMENT BILL: DELIBERATIONS
Documents handed out:
Summary of Comments on Criminal Law (Sexual Offences) Amendment Bill
Criminal Law (Sexual Offences) Amendment Bill [B50-2003]
Extract from Clauses 115-128 of the Children's Bill
Selective Overview: Offenders Registration
Sex Offenders Act 1997 (Chapter 51) of the United Kingdom
Sexual Offences Bill of the United Kingdom: Explanatory Notes
Child Protection (Offenders Registration) Act 2000 of the New South Wales
The Committee considered Clauses 21, 23, 24, 25, 26 and Schedule 2 of the Bill in the light of the public submissions made to the Committee.
Discussion focused on who has the power to discontinue police investigation of sexual offence cases, the introduction of a clearance certificate for people applying for jobs in work areas involving children, the national policy framework, regulations and the re-introduction of a treatment clause ensuring post-exposure HIV/AIDS prophylactic treatment for rape victims.
The Committee decided that an intermediary called to assist persons declared to be vulnerable witnesses should be equated to a witness. This is to ensure that if an intermediary fails to appear in court they can be held in contempt of court. It was also decided that the common law offence of incest should be extended to cover foster parents and fostered children. The Committee also questioned if it is desirable to raise the period of correctional supervision from three years to five years.
The Chair was of the view that the word "indecent act" defining the second offence created by this Bill is inappropriate since part of this offence also includes the words 'with consent'. He suggested that a better wording defining this offence should be formulated.
Ms D Clark (South African Law Reform Commission) proposed that the word "sexual violation" should be used instead of "indecent assault".
Clause 21: National Directorâ€¦ whether police investigation should be discontinued
The Chair asked the Department to explain what has transpired in the discussions with the South African Police Service (SAPS) on decisions to continue or discontinue investigation of sexual offences complaints.
Mr L Basset (Department of Justice: Legal Drafter) said that both the SAPS and the National Prosecuting Authority (NPA) had expressed dissatisfaction with the provision as it is and had proposed directives as a possibility.
The Chair agreed that in principle the Committee accepts the argument for directives and asked that a clause to this effect be created for the Committee to consider. He noted that in a previous meeting the Committee had agreed that directives should be created so as to guide the prosecutors in their dealings with sexual offences in Courts, especially where there are vulnerable witnesses involved. These directives would have to be tabled in Parliament for approval within three months of this Bill coming into operation. Although he was not quite sure how the monitoring process should unfold, the Justice Portfolio Committee would have the responsibility to oversee the implementation of these directives.
Adv M Masutha (ANC) said that although he welcomed the proposal, he cautioned against the notion of elevating the directives to the level of the law. Directives by their very nature are only administrative instruments used as a guideline on how the law should be implemented and do not have any overarching influence on any policies.
The Chair noted the concern but felt that directives as an instrument used by administrators to implement legal processes do have some legal effect in certain circumstances especially since all administrative decisions are up for legal scrutiny.
Clause 23: Non-disclosure of conviction of sexual offence
The Chair noted that the Children's Bill haD been introduced into Parliament last year but this Bill had been later split up into a Section 75 and Section 76 Bill. The S75 Bill had already been reintroduced to Parliament. However the S76 Bill, which contains the National Child Protection Register, had not yet been reintroduced. As it could take some time before this Bill is reintroduced, he felt that the Committee should continue with its discussions but keep open sts line of communication with the Social Development Portfolio Committee on this issue. He noted that the register being proposed in the Children' Bill seemed to be administrative in nature and he asked the Department to comment on how this Bill differs with the discussion on Clause 23.
Mr Basset replied that as a way of assisting the Committee, he had prepared a document titled "Selective Overview: Offender Register" which summarises the main features of these registers in other jurisdictions.
Mr S Swart (ACDP) supported the view that the Committee should continue with its process and not wait for the S76 Children's Bill to be reintroduced since it might take some time. It was important for the Committee to find a way to have people previously convicted of sexual offences prior (to the introduction of this Act) to have their names included in the Register.
The Chair noted that while he initially had supported this view, however based on administrative reasons, he is of the opinion that one cannot pass a law that punishes people retrospectively. However he called on the Committee to provide convincing arguments on why this rule should be disregarded, based on the best interest of children, and thus allow this law to have a retrospective effect.
Ms F Chohan-Khota (ANC) said that although it is always important to balance conflicting rights, the inclusion of these names in the Register should not be viewed as retrospectivity in a classical sense but one intended to protect the rights of children. She drew the Committee's attention to the legislation of New Jersey and Michigan and noted that the legislature in those US States had creatively ensured the inclusion of the names of sex offenders who were found guilty before the relevant legislation was passed.
The Chair noted the argument for the retrospective inclusion of the offenders' name in the proposed "paedophile register". He requested the Department to draft something on this and to ensure that the provisions of Clause 123 of the Children's Bill and Clause 23 of Criminal Law (Sexual Offences) Amendment Bill are taken into consideration.
Mr Swart wanted to know how the duty would be imposed on the employers.
The Chair noted that the Committee would firstly have to identify those areas of work in which sexual offenders should not be integrated into. It would be required of such persons to produce a certificate of clearance before being allowed to be employed in such areas. In that way a duty would be created for the prospective employers since they would not be allowed to employ a person without such a clearance certificate.
Ms S Camerer (DA) supported the notion of the certificate of clearance and said that this certificate would contribute tremendously towards promoting access to information while at the same time avoiding the constitutional pitfalls of invasion of privacy.
The Chair pointed out that what they are creating in this Bill is a prohibition and the sanction and one can only be exempted from this provision by means of a clearance certificate.
Clause 24: National policy framework
The Chair noted that all the departments which the Minister would be required to consult before preparing, reviewing or amending the policy framework should be clearly stated in the Bill. He proposed that the words "after consultation" be inserted while the provisions of Clause 24 should be rewritten. This national policy framework should be tabled to Parliament within six months and thereafter be published in the Government Gazette.
Ms Chohan-Khota proposed the insertion of a clause requiring a standardised report on the treatment of sexual offence matters to be submitted to Parliament on a regular basis.
The Chair agreed and said that all the departments responsible for the preparation of the policy framework should also be required to submit an annual report detailing the implementation of the Act. He further proposed that these Departments should create an intersectoral committee consisting of the Directors-General and senior officials and this committee should be chaired by the Justice Department's Director-General.
Clause 25: Regulations
The Chair said that "in consultation" should be substituted by "after consultation" since no department should have a veto power above any other. He reminded the Department to fit in the issue directives in this clause and also bear in mind that there is a difference between policies, regulations and directives.
Clause 26: Amendment and repeal of laws
The Chair noted that in dealing with the laws that are amended or repealed, it would be advisable to have a look at the recently passed Anti-Terrorism Bill and Anti-Corruption Bill. He proposed that a "saving" clause be inserted.
Clause 27 Application of Act in relation to Sexual Offences Act, 1957
This clause provides that in the event of any inconsistency between the provisions of sections 3, 10, 12, 12A, 20 and 21 of the Sexual Offences Act, 1957, insofar as those provisions relate to children, and any of the provisions of this Act, this Act takes precedence.
The Chair asked why these sections are being preserved.
Ms Clark indicated that the sections apply to everyone including children. She said that the intention is to make them applicable to adults only.
Clause on post-exposure prophylactic treatment
The Chair explained that discussions had taken place between the Department of Health and Justice regarding the absence of a 'treatment' clause in this Bill. He noted that the two Departments agreed that the Department of Health should tentatively draft a clause on this noting that the treatment provision falls under its jurisdiction. In terms of this clause it should be made clear that people would be entitled to post-exposure prophylactic treatment within 72 hours at a designated clinic and all the designated clinics would be listed in the Bill while the Schedule to this effect would be updated every six months.
Ms Camerer noted that the DA welcomes this initiative as it is a move in the right direction. There were some costing issues involved here and the Committee should also consider them.
The Chair said that the government has already provided money and therefore money would not be a problem. However since the Justice Committee has an oversight function then it would be its duty to see to it that proper structures are put in place in all the designated clinics throughout the country and require some explanation where such are not in place.
Mr J Durand (NNP) also welcomed the initiative by the two Departments in coming up with the treatment clause and further raised concern about the condition the young offenders find themselves facing under the brutality of elder offenders. He thus proposed that the Justice and Correctional Services Committees should co-operate especially as far as oversights in children custody is concerned.
The Chair acknowledged the concerned and further noted that while the two Departments and committees co-operate as far as possible in so far as the oversight visits are concerned. However he warned that people should be realistically and accept the fact that the issue of jail overcrowding cannot be solved overnight as it is a process and hence the Child Justice Bill has proposed diversion as an option in dealing with young offenders.
Schedule 2: Laws amended or repealed by Section 26
Criminal Procedure Act No. 51 of 1977: Section 18
The Chair noted that the offences mentioned in Section 18 of the Criminal Procedure Act (CPA) substituting the present section would have to be amended again so that it would be in line with the amendment effected by the Committee to the Bill
Criminal Procedure Act: Section 145
He rejected the proposed amendment to Section 145 of the CPA as he viewed it as setting a high standard for one to qualify to be an assessor in a sexual offence case.
Criminal Procedure Act: Section 154
He proposed that the two and three year period proposed in Section 154(a) of the CPA be changed to three and five years respectively.
Adv Masutha was of the view that monetary punishment would be more effective than imprisoning a journalist for contravening this provision.
The Chair said that a discussion on this issue should be flagged while the Department find out what is the position in other jurisdictions, especially in Sweden, Canada and USA.
Criminal Procedure Act: Section 164 and 192A
The Chair commented that a law is introduced to counter an existing law and one cannot simply pass a law for the sake passing it just because the existing one is wrongly being applied. As he was not convinced on the necessity of the proposed amendments to Sections 164 and 192A, he suggested that these amendments be rejected until the Department convince the Committee otherwise.
Criminal Procedure Act: Section 170A
The proposed addition, subsection (7), deals with things that an intermediary of a person who has been declared a vulnerable witness in terms of Clause 15 of the Bill may do.
The Chair expressed concern over the new roles given to intermediaries in terms of subsection (7)(b) and (c). He felt that should such a intermediary fail to appear in court as directed, he or she should be found guilty of being in contempt of court.
Ms D Clark (SALRC) said that intermediaries are not classified as witnesses and consequently it is difficult to say that they are in contempt of the court.
Ms F Chohan-Kota added that the difficulty perhaps stems from the fact that in its order the court does not specify the name of the person who has to act as an intermediary.
The Chair said that that it should be made clear in the Bill that once a person has been appointed as an intermediary such a person would be equated to a witness.
Criminal Procedure Act: Section 192
The Chair said that this item should be redrafted in another form.
Criminal Procedure Act: Section 195
Ms Clark (SALRC) said that section 195 of the Act would be amended by the substitution in subsection (1) for paragraph (a) by a paragraph indicating that a husband or wife would be a competent and compellable witness against his or her spouse in any offence committed against the person of a child that is in the care of either of them. She indicated that the law as it stands says that husbands and wives are competent but not compellable to give evidence against each other.
The Chair asked if there is any rule of law or judgement that excludes husbands and wives from being compellable to testify against each other in cases involving a child who is in their care. He asked what it is that makes one not to be compellable if the cases does not involve one's child. He added that if the drafters are unable to show as to which prohibition the Department wants to change, then this amendment would be deleted.
Criminal Procedure Act: Section 227
Ms Clark proposed the amendment of section 227 of the CPA by the substitution of subsection (1) up to and inclusive of subsection (4). A new subsection (5) would also be added. The heading of the section would change to "Evidence of character and previous sexual history".
The Chair said that the Canadians have a precise and concise section on this issue and advised the drafters to borrow from Canadian law should they like the way that section is drafted.
Criminal Procedure Act: Section 238
The Chair indicated that this subsection would expand the definition of the common law definition of incest so as to cover relationships between foster parents and their fostered children.
Criminal Procedure Act: Section 276A
Ms B Pithey (Public Prosecutions - Western Cape) said that Section 276A would also be amended by the substitution in subsection (1) for paragraph (b). The new paragraph (b) seeks to increase the period for correctional supervision from three to five years.
The Chair asked if the period of five years would apply to everyone irrespective of the kind of crime committed. He also asked if the Department of Correctional Services had been asked their view on the matter. He suggested that the period should apply to sexual offenders only. He also asked if society would benefit from such an amendment.
Ms Pithey felt that the period of three years is too short for the rehabilitation and reintroduction to the society of an offender. Hence they proposed that the period should be increased to five years.
In response to Ms Chohan-Kota asking if correctional supervision is of a rehabilitative nature, Ms Pithey indicated that correctional supervision is supposed to have a component of the rehabilitation of the offender.
Ms Chohan-Kota said that if one is concerned with only a component then there is no need to raise the period. She was worried that a tendency might develop whereby the courts easily sentence people to correctional supervision.
Adv Masutha (ANC) asked if, besides the Minimum Sentences Act, there is any other legislation that guides judicial officers on the type of sentences they might impose.
The Chair said that generally judicial officers are guided by precedents and that a lot also depends on their discretion.
Ms Pithey also noted the insertion of a new subsection (2A) after section 276A(2). The proposed subsection provides that punishment imposed under paragraph (h) or (I) of subsection 276(1) on a convicted sexual offender shall, if practicable and if the person shows that he/she can benefit from treatment, include attendance of and participation in a sex offence specific accredited treatment programme. The section goes on to say that the cost of the programme would be borne by the accused or the state if the court is satisfied that the person has no adequate means to bear such cost.
The Chair said he was opposed to having the state bearing such costs.
Ms S Camerer (DA) added that she did not like singling out sexual offenders for the treatment programmes.
Ms Chohan-Kota was concerned that some people who are able to pay for such treatment might bargain with the prosecutors with the result that they are sentenced to correctional supervision only. She opined that the duty placed on the state to pay for such programmes should be deleted. The Chair said that he was not happy to allow the amendment if it would create a possibility of offenders bargaining with prosecutors.
Magistrates' Court Act 32 of 1944: Section 93ter
The Chair said that this amendment would change.
Prescription Act No 68 of 1969
This item seeks to amend Section 12 of the Prescription Act. The Chair observed that the proposed subsection (4) does not indicate the time from which prescription would run. He wondered if this means that there would be no prescription for sexual offences. He also noted that subsection (5) does not provide the criteria for presuming that, unless the contrary is proved, a creditor to whom a debt based on sexual abuse is due was unable to institute proceedings earlier than they were actually instituted
Ms Pithey indicated that in most cases one is concerned with psychological damage and that such damage are mostly realised at a later stage.
The Chair advised the drafters to have a look at the Prescription Act for guidance. He also asked them to check if there is any jurisdiction in which prescription does not run against a debt based on sexual abuse.
Adv Masutha said that with regard to MVA claims prescription does not run against a minor until such a minor has reached the age of 21. He asked the drafters to check if there is any age at which one could say that a person is mature enough to realise the nature and extent of damage he or she has suffered as a result of sexual abuse.
Businesses Act No. 71 of 1991
Ms. Clark said that attention has been drawn to the fact that there are businesses wherein people engage in sexual intercourse without money changing hands. Some interest group had advised that such places need to be regulated especially given the fact that children under the age of 18 might also gain entry into such businesses and engage in sex. Consequently, she proposed that Item 2 of Schedule 1 of the Act be amended by the addition after paragraph (h) of the following paragraph: "(I) providing facilities for persons to have sexual intercourse".
Members felt that such businesses are illegal and therefore there is no need for the proposed section.
Criminal Law Amendment Act No 105 of 1997
Schedule 1 Guiding principles to be considered in the application of this Act and the adjudication of sexual offences generally
The Chair asked as what the effect of the Schedule would be. He suggested that the drafters should delete this Schedule and draft an Objectives clause that captures what this Schedule seeks to achieve.
Mr H du Preez (Department drafter) said that the aim of the Schedule is to set the scene for the manner in which a complainant should be treated.
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