Criminal Law (Sexual Offences) Amendment Bill: Informal briefing; Magistrates Salaries Committee Report: adoption

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Justice and Correctional Services

18 June 2006
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Meeting report

JUSTICE PORTFOLIO COMMITTEE, JOINT MONITORING COMMITTEE ON IMPROVEMENT OF LIFE, STATUS AND QUALITY OF LIFE OF WOMEN & SELECT COMMITTEE ON SECURITY AND CONSTITUTIONAL AFFAIRS: JOINT MEETING
19 June 2006
SEXUAL OFFENCES (REDRAFTED) BILL: INFORMAL BRIEFING; MAGISTRATES SALARIES COMMITTEE REPORT: ADOPTION

Chairpersons: Ms F Chohan-Kota (ANC)
Mr A Moseki (ANC) [North West]

Relevant documents
Criminal Law (Sexual Offences) Amendment Bill [B50-2003] – as of 19 June 2006
Briefing by Department on Sexual Offences Bill
Parliamentary Report on Magistrates Salaries
Human Life International submission
SWEAT submission

SUMMARY
The Committee received a preliminary briefing from the Department of Justice on the Sexual Offences Bill. The legislation addresses all sexual offences, including rape, sexual assault, exposure of genital organs, display of sexual acts, pornography and offences involving children and disabled persons. It outlined the services to be provided for victims of sexual offences, which included compulsory HIV testing of sexual offenders, and required the establishment of a National Register for sex offenders. The Bill granted the Minister of Justice the power to establish a national policy framework on sexual offences.

The briefing document outlined the background and passage of the draft Bill proposed by the South African Law Reform Commission in 2002, the Bill tabled in Parliament by the Department in 2003 and the latest redrafted Bill, which was a result of the Committee’s deliberations on the 2003 Bill. It was explained that there were essentially four differences between the 2002 Bill and the 2003 Bill: the objects clause in the 2002 Bill was moved to the schedule of the 2003 Bill; the support persons for sexual offence victims proposed by the 2002 was not included in the 2003 Bill; the 2002 Bill required the State to finance the treatment of complainants, which was omitted from the 2003 Bill for cost reasons; the 2002 Bill required a national policy framework to be established, whereas the 2003 Bill merely granted the Minister of Justice the power to devise such a framework.

The Department had not included the entire Compulsory HIV Testing Bill in Chapter 5 of the redrafted Bill, as requested by the Committee. This was because Cabinet had instructed it to first conduct further research on the matter. Cabinet had removed criminalisation of non-disclosure of HIV/AIDS and sexually transmitted infections (STIs) as the deliberate transmission of HIV was currently covered by common law crimes such as murder, attempted murder and culpable homicide, and did therefore not have to be specifically included in the redrafted Bill at this time. An application for the compulsory testing for HIV of an offender could be made by both the victim, interested parties and the police. The Bill did not repeal the Sexual Offences Act of 1957 in its entirety, as some provisions were still being investigated by the Law Reform Commission, but there were no overlaps between the Bill and that Act.

The Portfolio and Select Committees considered the Report on Magistrates salaries, and effected certain amendments before adopting it. The recommendations in the Report required the Magistrates Commission to compile a thorough report on those magistrates who had engaged in thinly-veiled industrial action during the months of September to November 2005, as well as the disciplinary measures to be taken. It also instructed the Department, National Treasury and the Department of Public Service and Administration to formulate a matrix so as to eradicate salary disparities among similarly qualified legal personnel in the public service.

MINUTES
The Chair noted that as the Committee received new submissions on this Bill, they would be considered to identify whether they raised new issues. The Committee would only consider submissions that pertained to the latest draft of the Sexual Offences Bill. She drew the Committee's attention to the submissions received from the Sex Worker Education and Advocacy Taskforce (SWEAT) and Human Life International.

Briefing by Department on Sexual Offences Bill
Mr L Bassett, Department Chief Director of Legislation, introduced Mr H Potgieter and Ms D Clarke of the South African Law Reform Commission (SALRC), who had drafted the original draft Bill proposed by the SALRC. The briefing document was comprehensive and made a comparison between the SALRC draft Bill, the Bill that the Department had introduced to Parliament in 2003 (the introduced Bill) and the latest redrafted Bill. The redrafted Bill was the outcome of the deliberations of this Committee prior to the 2004 elections. He stated that Mr H Du Preez, Department legal drafter, would conduct the briefing.

Mr Du Preez stated that, by way of background information, the SALRC was requested in 1996 to investigate the reform of the criminal justice system in terms of sexual offences by and against children. The SALRC initial mandate was expanded at the request of the then Deputy Minister to include sexual offences against adults. The SALRC submitted its report to the Minister in December 2002, accompanied by a draft Bill.

Differences between 2002 SALRC Draft Bill and 2003 Introduced Bill
It was important to note that the introduced Bill differed only in a few respects from the SALRC recommended draft Bill, which would now be briefly summarised.

(a) Objectives clause moved to Schedule
Firstly, the 2002 SALRC Draft Bill contained an objectives clause which aimed to reflect the normative values that underpinned the draft Bill and served as indicators of how and in which context the Bill should be interpreted and applied. The clause highlighted the rights of the victims of sexual offences, the vulnerability of children and the consequences thereof in terms of the prosecution of sexual offences, the appropriate sanctions for the commission of sexual offences and the need for training of all professionals who were involved in sexual offences cases.

On the other hand, prior to the introduction of that Bill, the Department was of the view that the objectives in the 2002 SALRC Draft Bill were more in the nature of guiding principles that related to the adjudication of sexual offences. The Department thus recommended that the objectives clause be included in a Schedule to the introduced Bill under the heading “Guiding principles to be considered in the application of the Act and in the adjudication of sexual offences generally”. The recommendation was subsequently approved and the Schedule was included.

(b) Cost of support persons
Secondly, the 2002 SALRC Draft Bill dealt with children and victims of sexual offences who were potentially more vulnerable than other witnesses, due to the nature of the offence. The SALRC recommended the inclusion of a provision whereby any complainant or child witness would automatically be declared vulnerable, and other witnesses may be declared vulnerable by a court on account of their age, intellectual impairment, trauma, cultural differences or the possibility of intimidation. The result was that it placed the court in a position to order that certain protective measures be applied to vulnerable witnesses, including the appointment of support persons to accompany the witness and strengthen and encourage the witness emotionally.

The introduced Bill did not entirely omit the clause in the 2002 SALRC Draft Bill that dealt with vulnerable witnesses. The Department was however concerned that it would not be able to secure the support services, and that portion of the clause was removed and not included in the introduced Bill.

(c) State to finance treatment of complainants
Thirdly, the 2002 SALRC Draft Bill contained a provision known as the ‘treatment clause’, which stipulated that the State must, in respect of all complainants who sustained physical, psychological or other injuries in sexual offence cases, provide appropriate medical care, treatment and counselling.

However in the introduced Bill the Department noted, prior to approaching Cabinet, that the ‘treatment clause’ was not limited to victims of sexual offences only. It contained a reference to ‘person’, which included a family member. Furthermore ‘injuries’ were broadly defined to include physical, psychological and other injuries. It required appropriate medical care, treatment and counselling to be provided, and ‘treatment’ here was not limited to medical treatment. It was clear that the ‘treatment clause’ in the 2002 SALRC Draft Bill would lead to substantial financial expenditure for the State, especially the provision of medical care and counselling for the complainant. The matter thus required further consultation with the government departments concerned, and Cabinet was accordingly informed of the proposal that the ‘treatment clause’ be removed. Approval was granted, and was subsequently removed from the introduced Bill.

It must however be noted that the redrafted Bill contained a clause that flowed directly from the ‘treatment clause’ in the 2002 SALRC Draft Bill.

(d) National policy framework
The last distinction related to four clauses that dealt with the implementation of the proposed legislation. The relevant provisions in the 2002 SALRC Draft Bill envisaged the implementation of the proposed legislation by organs of state in the national, provincial and local spheres of government, and placed an obligation on the Minister of Justice and Constitutional Development to create a national policy framework to guide the implementation, enforcement and administration of the Act to ensure acceptable and uniform treatment of sexual offence matters. The 2002 SALRC Draft Bill also contained a clause which prescribed the content of the national policy framework, and required the Minister to consult with all organs of state, the public and NGOs in formulating the policy framework.

However in the introduced Bill t Department was concerned that the provisions in the 2002 SALRC Draft Bill on the national policy framework would give rise to delays and difficulties in the implementation of the legislation. The Department proposed instead that the introduced Bill include a simple provision that gave the Minister of Justice the responsibility to implement the legislation. The proposal was approved by Cabinet, and included in the introduced Bill.

Mr Du Preez concluded this portion of the briefing by emphasising that those were the only areas in which the introduced Bill differed from the SALRC Draft Bill. It was thus the case that the introduced Bill “substantively corresponded with the Bill proposed by the SALRC”.

He began explaining the passage of the introduced Bill, and its contents.

The Chair requested Mr Du Preez to focus on the redrafted Bill instead.

Chapter 1: Definitions and Objects
Mr Du Preez indicated that the chapter outlined the objectives of the legislation.

Chapter 2: Sexual Offences
He stated that the Chapter dealt with sexual offences generally. Part 1 dealt with rape, Part 2 dealt with sexual assault and Part 3 dealt with the exposure or display of sexual acts of genital organs, ie. flashing, as well as with pornography. Part 4 consisted of three clauses on incest, bestiality and necrophilia respectively. He explained that Part 4 was, to an extent, merely a redraft of the common law definitions. The Department would however point out certain aspects which deviated slightly from the common law position.

Chapter 3: Sexual Offences Against Children
Mr Du Preez explained that the Chapter dealt with sexual offences committed against children. Part 1 dealt with consensual rape and consensual sexual assault against a child, and its provisions were aimed at replacing the current Section 14 of the Sexual Offences Act of 1957 (the Act) which dealt with statutory rape. Part 2 dealt with a more general nature of sexual offences against children, and was aimed more at exploitative and harmful actions against children. He explained that the definition of ‘pornography’ in Clause 22 was borrowed from the Films and Publications Act, which was amended a few years ago, and that latest definition was now included in the Bill’s definitions clause.

Chapter 4: Sexual Offences Against Mentally Disabled Persons
He explained that this Chapter was a mirror image of Chapter 3, except for Clauses 14 and 15 which dealt with the offence of statutory rape, as that offence was not applicable to mentally disabled persons. The Chapter dealt with offences against mentally disabled persons.

Chapter 5: Services for Victims of Sexual Offences and Compulsory HIV Testing of Sexual Offenders
The Chapter dealt with the treatment and services for victims of sexual offences and compulsory HIV testing. Part 1 included a definitions cause because it contained definitions that were used in this Chapter alone. Part 2 dealt with the application for compulsory HIV testing of the alleged sexual offender by the victim and Part 3 dealt with the application by a police official for the HIV testing of the alleged sexual offender. Part 4 dealt with the execution of court orders for compulsory HIV testing and the handling of the results of the HIV tests.

He explained that Part 5 was an important portion. It dealt with miscellaneous provisions, including the establishment of a register of applications and court orders and issues relating to the confidentiality of the outcome of the application and the HIV test results. The latter was introduced at the request of this Committee because it was concerned about the confidentiality of the outcome of the results. Clause 39 of the Bill ensured the confidentiality of the application for HIV test, whereas Clause 40 ensured the confidentiality of the outcome of the test. Clause 41 listed the offences and penalties for failure to comply, and also expressed the need for regulations on the matter.

Mr Du Preez indicated that the Compulsory HIV Testing Bill was introduced in Parliament in 2003. At that point the Committee had instructed the Department to effect certain changes to that legislation and to conduct more research, with a view to including that Bill into this Sexual Offences Bill. However at that stage the Sexual Offences Bill had not yet been introduced, but its introduction was imminent. It was for that reason that the Committee was confident of its instruction to the Department. Chapter 5 was thus the direct result of the Committee's proposal to include the Compulsory HIV Testing Bill into this Sexual Offences Bill. He stated that when the Department briefed the Committee fully on the Bill, it would compare the provisions of that Bill with this redrafted Bill, which were largely similar.

Chapter 6: National Register For Sex Offenders
By way of background Mr Du Preez stated that the introduced Bill stipulated that any sex offender who applied for employment that entailed being in a position of authority over children must declare his conviction to the prospective employer. During its deliberations the Committee instructed the Department to consider a separate provision, and to take it further and draft a stand alone chapter on a national register for sex offenders. The press has referred to it as a paedophile register, but the redrafted Bill referred to the sex offenders national register.

Chapter 7: General Provisions
Mr Du Preez explained that Part 1 dealt with defences, evidentiary matters and the issue of extra-territorial jurisdiction. Part 2 referred to the establishment of a national policy framework, which the SALRC recommended in a few clauses in the 2002 SALRC Draft Bill. The department believed that first establishing the national policy framework would delay the implementation of the legislation, and for that reason it opted for this enabling provision. During its deliberations with this Committee, the Department was instructed to expand that framework and to provide a framework for an inter-sectoral Committee. That Committee would consist of high-ranking officials as well as bodies that had a direct interest in the Bill, and their primary focus would be assisting the Minister in establishing the national framework. That Committee
would also be involved in monitoring the practical implementation of the national framework.

Part 3 regulated the national instructions and directives, and the repeal and amendment of laws relating to sexual offences. Part 4 outlined the transitional provisions while Part 5 dealt with the provisional transitions on trafficking of persons for sexual purposes. He explained that the introduced Bill did contain a clause on child trafficking, and had a sub clause on child prostitution. The Department however thought it prudent to elevate that provision to a substantive clause, which was the current Clause 65 in the redrafted Bill, as it would give effect to the United Nations protocol. It was thus included as a substantive provision because the SALRC was currently conducting an investigation into the wider issue of trafficking in persons generally, which went beyond trafficking for sexual purposes. Moreover, the Childrens Bill also contained a provision on trafficking and, although its ambit was wider than Part 5, that provision was however limited to children alone.

Schedule
He explained that the Schedule to the redrafted Bill included provisions aimed at amending certain provisions in the principal Act.

Discussion
The Chair thanked Mr Du Preez for the informative preliminary briefing. The briefing indicated that the Committee instructed the previous Chairperson to redraft the Bill in accordance with its deliberations, and having considered the public submissions. It did not however reflect that two issues had arisen since the time the introduced Bill was tabled in Parliament, to the time at which the Committee requested a redraft. The first was that the redrafted Bill was far more comprehensive in the sense that it was almost a codification of all sexual offences.

The second was that there was a definite change to the procedure in which Parliament normally drafted Bills, as the legislation had been presented to Cabinet a second time. The only difference between the redrafted Bill and the introduced Bill was that the Committee had proposed the inclusion in the Bill of a crime for any person who had HIV and had deliberately infected others. That issue was excluded from the briefing and she requested that Mr Du Preez comment on how Cabinet had pronounced itself on this issue.

Mr Du Preez explained one of the sub-provisions in the clauses in the introduced Bill that dealt with ‘coercive circumstances’ and rape made specific reference to the deliberate transmission of HIV or sexually transmitted infections (STIs). The Committee had instructed the Department to specifically include that offence in the Bill. The Department had brought back a fairly substantial provision in that regard to the Committee, which was contained in the document it submitted to the Committee just before the April 2004 elections. The Department was then instructed to refine those provisions further, which it did, and included the revised provisions in the redrafted Bill that was then submitted to Cabinet. Cabinet in turn had instructed the Department to omit those two clauses at that stage, pending further research. He stated that it was for that reason that the redrafted Bill made no reference to the offence proposed by the Committee.

The Chair added that one of the reasons put forward by Cabinet for its decision not to include it in the redrafted Bill was that such offences were currently covered by common law crimes as murder, attempted murder and culpable homicide. The Department thus decided to retain the investigative mechanisms instead, such as the provision on the request for HIV testing by police officers. That allowed persons who intentionally infected others with HIV or STIs to be prosecuted under the existing common law crimes.

Mr Du Preez agreed.

The Chair thanked Mr Du Preez for all the hard work he had done on the Bill. She informed the Members who had just arrived that she would not be entertaining questions on the substantive provisions because the Committee membership was depleted, especially its opposition Members.

Mr J Jeffery (ANC) stated that his questions were procedural in nature. He noted that the title of the redrafted Bill stipulated “Criminal Laws (Sexual Offences) Amendment Bill”, whereas the Bill was in fact a brand new Bill. He questioned whether the terminology used was in fact correct.

Secondly Mr Jeffery stated that it appeared that the Bill repealed large sections of the Sexual Offences Act 27 of 1957, but did not repeal that Act in its entirety. The result was that portions of the Act was and would still be in operation. He questioned whether it was a wise route to follow, and whether it would not have been more prudent to have a single piece of legislation that dealt exhaustively with sexual offences.

Mr Du Preez replied to the two questions by agreeing that the existing 1957 Act was still in operation. It was for that reason that the Bill was officially titled the sexual offences amendment Bill. It was however not an amendment Bill in the strict sense that it aimed to amend a principal piece of legislation, but was really legislation that amended the common law. A stage would probably be reached some time in the future when Parliament would repeal the 1957 Act in its entirety, and it would be appropriate at that point to consider amending the short title of the relevant piece of legislation.

Mr Bassett explained that, while the Bill was repealing some of the provisions of the principal Act, there were still some provisions in that Act that needed to stay in place because the SALRC was still dealing with its provisions on adult prostitution.

The Chair made it clear that the sections in the principal Act that dealt with the same issues as those covered by provisions in the Bill were repealed in their entirety. She assured Mr Jeffery that there was thus no straddling between the two pieces of legislation on the same issue.

Mr Jeffery noted that the Compulsory HIV Testing Bill was still before the Committee, which meant that there would now be two Bills that dealt with the same issue. He asked whether the Compulsory HIV Testing Bill should be withdrawn.

Mr Bassett explained that its possible withdrawal must be considered as Parliament progressed with this Bill because, depending on what was finally included in this Bill, the Compulsory HIV Testing Bill might have to lapse or be withdrawn.

The Chair must approach cautiously rather than expeditiously.

Mr Jeffery asked whether the Childrens Act also referred to a register of sex offenders. Consistency between pieced of legislation must be ensured.

The Chair replied that she had informed the Department that that issue still required certain decisions to be made. It must be borne in mind that the Bill was approved by Cabinet in the format ie. that the register would be regulated by the Department of Justice. She stated that the question of overlaps does however arise. It was thus a matter that was still outstanding.

She informed the Committee that it would receive a more substantive briefing on the Bill on the following day.

Report on Magistrates Salaries
The Chair welcomed Mr A Moseki (ANC) [North West], the Acting Co-Chair from the NCOP Select Committee on Security and Constitutional Affairs.

Mr Moseki tendered the formal apologies of the Chairperson of the NCOP Committee, who was held up in a provincial matter.

The Chair asked whether the NCOP had deliberated on the Report.

Mr Moseki answered in the negative.

The Chair stated that the Joint Committee would then briefly go through the Report. She proceeded to read through it for the benefit of the NCOP Members, as the National Assembly Committee Members had already deliberated on the Report.

The Joint Committee effected certain technical amendments to the report, as well as the following two amendments to dates for implementation in the report: firstly, the Committee proposed that the date of 1 August 2006 for the implementation of the Department’s plan for a salary structure should be altered to 1 September 2006, because Parliament would only resume again on 1 August 2006. Secondly, the date of 1 December 2006 for the submission of the report on disciplinary measures taken must also be changed.

Discussion
Mr Mzizi asked who would be paying for the implementation of the proposals in the report.

The Chair responded that the second page of the report indicated that National Treasury would avail the funds for the provision of motor vehicle allowances, and approval for portion of the approval was granted by both Houses on 16 November 2005. But the effects of the recommendations on other similarly qualified persons in the public sector was also dealt with in this report, Thus the document currently being considered was the further report on outstanding issues.

Mr Mzizi asked how exactly the report affected those legal professionals working for state institutions, such as the Chapter 9 bodies, as well as those working in government departments.

The Chair replied that the problem was not only that there were no funds available, but also that if the salaries of prosecutors and other similarly qualified persons were not increases when Parliament just recently approved the increase of magistrates salaries, there would be major problems. The current practice in which prosecutors were lost to the magistracy, simply because of the “huge salary disparity” between the two, was unacceptable and unsustainable. She explained that the second paragraph made it clear that government must investigate the impact on the rest of the legal persons in public sector. The recommendations required the Department, National Treasury and the Department of Public Service and Administration to formulate matrix within which to objectively understand the salaries of all legal professionals within the public service.

She proposed that the Joint Committees go through each paragraph of Report. She indicated the primarily technical and grammatical issues with the report raised by opposition Members during meeting held in the previous week, which the Committee considered.

Mr Mzizi was concerned that the recommendation in 6.1 of the report might in fact be prescribing the functions of the Magistrates Commission.

The Chair informed the Committee that she was not aware of any such action taken to date by the Magistrates Commission, and 6.1 merely ensured that it did take the necessary action.

The Committee was dissatisfied with the awkward wording of 6.1 of the report, but agreed with the overall principles expressed in it. Members agreed that the two co-Chairs devise actual wording.

The Chair agreed

Adoption of Report
The Acting NCOP Chairperson noted that the NCOP adopted the Report, as amended, He noted that
Dr F Van Heerden (FFP) [Free State] abstained because he had only had first sight of the report during the meeting, and had not had the opportunity to take it back to his party caucus.

The Chair noted that the National Assembly unanimously adopted the Report, as amended.

The Report was adopted by the Joint Committee, as amended.

The meeting was adjourned.

 

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