Implementation of Criminal Law (Sexual Offences and Related Matters) Amendment Act

Meeting report

Election of Acting Chairperson

The Committee Secretary noted the apology from the Chairperson who was attending a meeting of the Joint Standing Committee on Intelligence and asked Members to nominate and elect an acting chairperson. Mr R Dyantyi (ANC) was elected as the Acting Chairperson.

Presentation: Interdepartmental Implementation of the Criminal Law (Sexual Offenses and Related Matters) Amendment Act, 2007

Adv Praise Kambula, Chief Director: Promotion of the Rights of Vulnerable Groups, Department of Justice and Constitutional Development (DoJ&CD), said that the presentation was based on the reports of a wide range of government departments and other stakeholders. She observed that there had been an unprecedented 78% increase in the number of registered sex crimes in 2020/21 over the previous financial year. This included a 76.3% increase in rape cases and a 2.75% increase in statutory rape cases, which was a serious concern because there had been many movement restrictions in place in that year due to COVID-19. It could be deduced from this that sexual offences in South Africa were rife in domestic relations. The poison was in the family, and this is where the focus needed to be to put an end to GBVF. On the other hand, the number of cases finalised by the National Prosecution Authority (NPA) was down to 3349 (from 5451), probably due to courts being closed during lockdown. She looked at sentencing patterns for sexual offences, measures put in place to reduce the lockdown-induced backlog of GBVF cases, victim support services, progress on the designation of sexual offences courts, progress toward gender parity in the appointment of magistrates and judges, training interventions, preventative measures including the economic empowerment of women, and progress in legislative and policy development.

(see document for further detail)

Discussion

Mr X Nqola (ANC) observed that according to the presentation GBVF cases must not be in the court roll for more than nine months, but at the beginning of this year, while conducting oversight, the Committee had found that there are sexual offences courts where recording machines were not working, resulting in postponements and actually defeating the end of having matters complete within the space of nine months. What then became of the turnaround time, so that justice was not delayed? He recalled that the reason given for the non-operational recording machines was that a contract had expired, and questioned why the Department allowed the contract to expire before arranging a new contract. This had a very negative effect on the dispensation of justice.

Ms W Newhoudt-Druchen (ANC) asked why the Directors-General Intersectoral Committee on the Management of Sexual Offences Matters, chaired by the Director-General (DG) of DoJ&CD, had not met. This was a very critical matter and it was very concerning that the people in charge had not bothered to meet. She also asked for a report of the meeting of the nine provincial technical committees, with particular focus on the challenges faced by each province. She asked why the Thuthuzela Care Centre (TCC) conviction rate for 2020/21 was reported as a negative number (-73.9%). She asked if departmental webinars for prevention interventions were accessible to people with disabilities. She was concerned about the Department's claim that it required legislative amendments to fast-track the designation of sexual offences courts. The Committee has just worked on the three GBV Amendment Acts and the Department had made no mention of these requirements then. She also thought that the Department should demand reports from other agencies, including from the Department of Basic Education (DBE), especially in terms of rape of children. These should not be optional. There has been a notable decrease in intermediary services for different reasons and asked what was being done about this. She pleaded that the Department continue working to ensure that there were interpreters at courts and that they were the right fit for the victim and the job at hand, especially for sign language as it was not always easy to communicate and to bring forth matters related to sexual offences. The interpreter must be at such a competent level that the victims are able to express themselves comfortably. There were social workers that were available, who had been trained to assist in interpreting and had years of experience and could especially assist deaf people who had not gone to school or who had been isolated from the community.

(Ms Newhoudt-Druchen's submissions were delivered in South African Sign Language and interpreted by Ms Delphin Hlungwane, South African Sign Language Interpreter, and by Ms Trudie Theunissen, Sign Language Interpreter)

Ms Y Yako (EFF) said that if one listened to the presentation of the report, one would think that it was all sunshine and roses, and everything in the Department was working according to plan. If the Committee had not gone on oversight and seen the situation for themselves, then it would have believed that what got passed as laws translated to reality. For example, it was said that there are high numbers of sexual crimes perpetrated in the Western Cape, but when the Committee had gone to the Western Cape and saw how the court systems work it had seen that it was not practical for either the magistrates, judges or prosecutors to do anything. Nothing could be done. She questioned whether the Department could honestly say that it was giving capacity to the courts to do the work that they were supposed to do. While acknowledging that DNA reports had been successful, she questioned whether every rape case went through a proper rape kit and whether the reports did not disappear in the system before prosecution. What she had seen during oversight was not consistent with the presentation. She was not implying that the presentation was false—however, there was a need to depict the reality of the situation, because victims of sexual crime needed to know that they were safe and that they were heard and that their case would be expedited. It did not seem that the courts had the capacity or the infrastructure to do the work that they were supposed to do.

Mr S Swart (ACDP) appreciated the report but he also did not believe that it was the full picture of the devastating impact of sexual offences. While the Department and other entities were doing their best, there were still massive issues. Firstly, research estimated that only one-third of sexual offences were reported. The reasons included lack of confidence in the police and the courts, fear of intimidation by the perpetrator, fear of not being believed, fear of stigmatisation, and fear of secondary victimisation. The Department had done good work in this regard, but he was concerned that the figures for court intermediaries were down. Another challenge was access to police stations, particularly in rural areas, and the treatment by policemen there. In the urban areas, the police stations had victim support rooms, which was commendable, but the very high level of under-reporting remained a problem. The fact that a lot of sexual offences took place in the family environment might also add to the issue of under-reporting. He commended the Department for reducing the backlog of outstanding DNA reports,  in particular the identification of 314 potential serial rapists, but stressed that if the DNA reports had not been delayed these people might have been prevented from becoming serial rapists in the first place. He asked when the remaining backlog of 31 377 DNA reports would be cleared. He drew attention to the 85 Sexual Offences Systems which had become non-operational due to an expired maintenance and support contract. This had been seen on the ground when Members did the oversight visit. How it could be possible that the Department had allowed this to happen? The Committee needed to monitor this. There were ongoing challenges related to the South African Police Service (SAPS) and its capacity-building sessions during the Covid-19 pandemic, the need for more forensic science labs to address the backlog in DNA reports, and the backlog of prosecutions due to repeated court closures. He hoped that lessons had been learnt about the hard lockdown and the impact that it had had on the criminal justice system and the incidence of sexual crime.

Mr W Horn (DA) agreed that the presentation did not portray the full picture. He asked for clarity about the difference in the figures for newly registered sexual offences between slides 10 and slide 12. On slide 10 it stated that the newly registered sex crimes in courts were 13 588, but on slide 12 it stated that Legal Aid South Africa had registered more than 20 000 cases. He appreciated the work done to clear the backlog of DNA reports but added that it was unacceptable that the situation had arisen in the first place. He asked what the timeframe was for all outstanding DNA reports to be finalised. Based on the previous day's National Assembly debate, it seemed that the problem was nowhere near being solved as vast numbers of new DNA report requests continued to be submitted. What was the plan of action to solve the problem permanently? He was disappointed about the absence in the presentation of figures on the backlog of sexual offences cases.

Ms N Maseko-Jele (ANC) agreed that the presentation was incomplete, particularly concerning plans, timeframes and commitments for the processing of backlogs. The Committee had observed during oversight visits that some officials were not committed to attending important meetings where implementation plans were tabled and commitments were made. She asked whether there was consequence management for officials that are part of the National Technical Intersectoral Committee but who hampered the progress of implementation. So many committees were established, but they could sometimes become a hindrance. There needed to be willingness and commitment from all the officials involved. Women were running out of patience. Were there plans to make sure that progress was monitored? She reported that at some of the Sexual Offences Courts that the Committee had visited, particularly in Mpumalanga, there had been faulty machines; this issue needed very serious attention. Some of the victim-friendly rooms that they had seen were not friendly. The ones in Mpumalanga, for instance, were very small. The infrastructure of Sexual Offences Courts should show decency and show that the Department took these matters seriously. Victim-friendly rooms should be bigger and furnished according to a standard; one area should not be less satisfactory than another. She noted that Adv Kambula had mentioned that most rapes happened in families or by people known to the victims, and asked what the Department intended to do to educate families for the sake of prevention. Adv Kambula had also mentioned the resuscitation of family and community values. She had expected a presentation that focused on the plans for implementation that would have been more relevant to ordinary women. She added that the empowerment of women could not be left to the Department of Women, Youth and Persons with Disabilities (DWYPD) alone. Even female lawyers experienced problems, and as the President of Supreme Court of Appeal Mandisa Maya had said, the judiciary has no sexual harassment policy. There needed to be programmes that empowered women within the DoJ&CD, linked to the work of DWYPD.

Responses

Adv Kambula noted that the presentation covered the performance of a number of departments, not just the DoJ&CD. The presentation had been made by the DoJ&CD per the Act. Representatives of various stakeholders would answer questions. She emphasised that the presentation was not about the three GBV Amendment Acts that had recently been promulgated.

Adv Pierre Smith, Deputy Director: Public Prosecutions, Sexual Offences and Community Affairs Unit (SOCA), NPA, said that the negative number for 2020/21 TCC conviction rate was a typographical error. The correct figure was 70.9%. He said that DNA reports were a joint initiative between the NPA and SAPS Forensic Services Laboratories (FSL) and that the FSL would be in the best position to respond to questions on this topic. The 314 potential serial rapists had been identified based on DNA reports received from the FSL. This information was then channelled to the different Directors of Public Prosecutions (DPPs) for those cases to be pulled together. More so, if the case was cross-divisional then the process of centralisation in line with the Criminal Procedure Act needed to kick in and be implemented. The NPA would inform their colleagues that those cases would need to be prioritised accordingly. The NPA has commenced with this exercise from October 2021 until 28 January 2022, which was strictly speaking outside of the reporting period in question. The initiative had been implemented starting from October 2020 and by the end of 2020/21, the NPA had finalised 444 reports it had received from FSL. It was an ongoing process to make sure that these cases receive top priority.  

Ms Siza Magangoe, Chief Director: Families, Department of Social Development (DSD), said that the DSD did contribute to a number of prevention programmes and initiatives that work with families and communities at large, including education and awareness campaigns using radio platforms to reach out to families and communities, the training and deployment of volunteers to hot spot areas to organise community dialogues and refer the community to services, and parenting programmes in collaboration with civil society that focus on issues of GBVF.

Mr Tsietsi Malema, acting Deputy Director-General (DDG): Court Services, DoJ&CD, said that the Department has started the process to ensure that it appointed new service providers on time. There was a need to restart the whole supply chain process as it had been discovered that the bidders did not qualify. The Department had managed to get an exemption from National Treasury to extend the contract for twelve months and as soon as the Department issued a circular to this effect, which would happen during the week, the courts would have access to maintenance of both the court recording technology (CRT) machines, as well as the faulty Sexual Offences Systems. The Department would continue to work with accredited service providers and ensure that it employed competent people. Databases were kept per province and sometimes per court but they were typically shared across the courts and provinces so that where and when people with disabilities require services, the courts would be able to assist them. The Department accepted that some of the facilities in the courts were in a poor state and not up to scratch, especially for victims of sexual offences. This problem was that the Department had had to adapt existing court buildings to be modified to suit the new legislation. Many of the courts had not been designed to provide for sexual offence cases.

(Some of Mr Malema’s responses were inaudible due to a bad connection)

Brigadier JM Mncwabe, acting Component Head: Family Violence, Child Protection and Sexual Offences (FCS) Units, SAPS, said that there was no problem with the availability of rape kits. There was a system that SAPS had put in place to monitor the availability in each and every province. There was no problem with lost documents because everything was digitised—from the time that the rape kit was used until it got to the FSL it would be on the system. The FSLs had been able to deal with the backlog because the shortage of personnel, especially analysts, had been addressed at the beginning of the 2020/21 financial year. He clarified that the clearing of the backlog of DNA reports had not stopped new cases from being attended to. The current personnel and analysts at FSLs would be sufficient to push and finalise the remaining backlog by May 2022. In terms of prevention of GBVF and sexual offences, SAPS was part of the same committees as the DWYPD and there had been several engagements with the DWYPD.

Adv Wilna Lambley, Gauteng Provincial Executive, Legal Aid SA, explained that the different figures on slides 10 and 12 might be due to the fact that the presentation had been put together from reports from different departments and entities which had different measurement methods. The figures on slide 10 were from SAPS and they referred to crimes registered at courts. The figures on slide 12 were from Legal Aid SA. In cases where there were multiple accused, Legal Aid SA counted these separately, and its figures also included every person who approached it for assistance in the year in question, which might be someone who had previously been represented privately or who was now lodging an appeal. This might explain the difference in the figures.

Follow-up discussion

Mr Swart repeated his question about the under-reporting of sexual offences.

Ms Newhoudt-Druchen observed that there was a high number of family care centres, which was good, but a low number of forensic social workers. For example, in the Western Cape, there were 257 family care centres but only 20 forensic social workers. How did the low number of forensic social workers impact the burden of work that they had to do? Was it possible to have more forensic social workers so that there was a balance with the centres?

Ms Maseko-Jele said that her questions on the draft framework for the management of backlogs and on the plans for consequence management for lack of progress had not been answered. How were the different departments going to monitor progress?

Adv Kambula replied that under-reporting of sexual offences was a global problem. The reasons were widely known and had been considered when the regulations related to sexual offences courts had been developed. They had been considered when building the catalogue for support services that need to be provided to ensure that victims experienced care and privacy. For example, the victims should not testify in the direct presence of the perpetrator, and children were offered intermediary services. She emphasised that the concept of the sexual offences courts was home-grown and that other countries were now learning from it. The different departments involved needed to ensure that victims obtained support services from the moment they arrived at a police station until they went to court. The Department intended to ensure that the support services were offered at every service point. During the first Covid-19 financial year, there had been an increase of 78% in cases registered in court, which implied that a lot of sex offenders had been apprehended during this time, because when there was an apprehension of a sex offender it meant that a report had been made by the victim. The Department was not yet there, but it was making efforts to ensure that every case of a sexual offence was reported. Because many of the sexual offences in South Africa occurred in domestic relationships, there were issues of loyalty to the perpetrator or the fear of being excluded from financial benefits. Some victims did not report because they were scared of going out.

Adv Smith said that the under-reporting of gender-based violence was a massive concern that had also been picked up at the TCCs. The Department undertook targeted public awareness campaigns throughout the year, specifically focused on the issues and challenges in relation to under-reporting, to try and convince people to come forward and report. During the 16 Days of Activism for No Violence Against Women and Children public awareness campaign there was an increase of 20-25% in reporting.

Ms Newhoudt-Druchen stressed that GBVF was a very serious crime that had been increasing over the last two years. She requested that the Minister and Deputy Minister be present when the Committee was briefed on the implementation of this Act. Some of the questions had not been answered.

The Acting Chairperson observed that many of the issues raised by the Committee would need a follow-up, especially as members were of the view that the report did not reflect the reality of the issues.

Adv Doc Mashabane, DG, DoJ&CD, assured the Committee that the backlog was being attended to and given priority and that the next time that the Deputy Minister or Minister was available the Committee would be given an update. The faulty CRT machines had had a major impact and affected many courts and led to the backlog of cases. This was related to the problems associated with the State Information Technology Agency (SITA), which had created many problems within the Department. In this instance, National Treasury has assisted the Department with a one-year deviation for purposes of the CRT machines. The Department hoped that within three to six months it could address at least get 50% of the backlog.

The Acting Chairperson said that the Committee would ensure that it got answers to all the outstanding questions and more concrete information on implementation.

The meeting was adjourned.