Criminal Law (Sexual Offences) Amendment Bill: briefing by Department

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Justice and Correctional Services

20 June 2006
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Meeting Summary

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Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
21 June 2006
CRIMINAL LAW (SEXUAL OFFENCES) AMENDMENT BILL: BRIEFING BY DEPARTMENT OF JUSTICE

Chairperson:
Ms F Chohan-Kota (ANC)

Relevant documents
Criminal Law (Sexual Offences) Amendment Bill [B50-2003] – as of 19 June 2006
Criminal Law (Sexual Offences) Amendment Bill – 2003 version
Compulsory HIV Testing of Alleged Sexual Offenders Bill [B10-2003]
Briefing by Department on Sexual Offences Bill – presented on 19 June 2006
Centre for Applied Legal Studies submission
Childline South Africa submission
AIDS Legal Network submission
Centre for the Study of Violence and Reconciliation submission
RAPCAN submission

SUMMARY
The Department of Justice completed its briefing to the Committee on the Bill, which outlined Clauses 14 to 67 and the Schedule to the Bill. It would only engage in substantive discussions on provisions during the deliberations phase in the new term of Parliament. Chapter 3 codified sexual offences committed against children, including statutory rape. Chapter 4 dealt with sexual offences committed against mentally disabled persons, and essentially mirrored Chapter 3. The Bill was careful to distinguish between mentally disabled persons who were able to appreciate the nature and consequences of the sexual act from those who did not.

Chapter 5 outlined the services to be provided by the State for victims of sexual offences, as well as compulsory HIV testing of sexual offenders. It required government to provided Post Exposure Prophylaxis (PEP), within 72 hours of the commission of the sexual offence. An application for the compulsory testing for HIV of an offender could now be made by the victim, interested parties and the police. The Democratic Alliance was concerned that the Bill prevented victims from immediately receiving Anti-retroviral (ARV) treatment. Chapter 6 required the establishment of a national register for sex offenders and prescribed its functions, responsibilities, contents and control, and privacy standards. The Committee emphasised that It was not a ‘name and shame’ register, but was instead focused on protecting children from people who were employed in a position of authority over them. It obligated employers to seek clearance from the Registrar and imposed a serious penalty if they did not do so.

Chapter 7 contained general provisions such as the defences to the offences in Clauses 3 to 7. The Department was asked to check whether the test of ‘deception’ in Clause 53(2) broadened the defence unnecessarily, and whether the defence in Clause 53(4) was too broad. Clause 54 prohibited a court from drawing a negative inference on account of the absence of previous consistent statements involving the alleged commission of a sexual offence. The chapter contained a transitional provision on the trafficking in persons for sexual purposes as an interim measure pending the finalisation of the comprehensive legislation on trafficking generally.

The Schedule to the Bill listed all the consequential amendments that needed to be effected to other pieces of legislation, such as the Sexual Offences Act, the Criminal Procedure Act, the Prescription Act, the Criminal Law Amendment Act and the Prevention of Organised Crime Act. The Committee raised a few issues of concern that the Department was requested to research before its next meeting on the Bill.

The Committee would be receiving a briefing in August from the Deputy Minister of Justice on the pertinent issues in the Bill which were raised while he was still the Chairperson of this Committee.

MINUTES
Introduction by Chairperson

The Chair wished to make it clear that it was definitely not the case that NGOs and civil society had been marginalized during the processing of the redrafted Criminal Law (Sexual Offences) Amendment Bill of 2006 (the Bill). All submissions received by the Committee were considered. She emphasised that the Committee would continue to receive and consider submissions on the Bill as it deliberated on it. The Committee would however not be re-considering issues that had already been laid to rest, and will instead consider new issues raised in the submissions received. It was thus definitely not the case, as alleged in the media, that the Committee was rushing the Bill through Parliament before the end of session this Friday.

The Committee would continue its deliberations on the Regulation of Interception of Communications and Provision of Communications-related Information Amendment Bill on Friday 23 June. The Committee would continue to process both Bills during the next sessions of Parliament.

She stated that Ms S Camerer (DA) and Mr S Swart (ACDP) proposed during the meeting on the previous day that the Committee receive a briefing from the Deputy Minister of Justice on the pertinent issues in the Bill, which were raised while he was still the Chairperson of this Committee. That briefing would take place in August, when Parliament reconvened. Following that briefing the Committee would ten consider the new submissions it received and continue to deliberate on the Bill, redraft clauses where necessary and thereafter the Committee will vote on the Bill. The process was thus far from over. She appealed to those who had not yet made submissions on the Bill but who wanted to, to do so before Parliament reconvened in August.

The Committee would now continue its briefing on the Bill, which would be conducted by Mr H Du Preez, Drafter from the Department of Justice.

Briefing by Department of Justice on Sexual Offences Amendment Bill
Chapter 3: Sexual Offences Against Children
Part 1: Consensual sexual against with certain children
Mr Du Preez continued with his input on the Bill, based on the document entitled Briefing by Department on Sexual Offences Bill presented to the Committee on 19 June 2006. The clause replaced Section 14 of the Sexual Offences Act (the Act). Clause 14 now codified the offence of sexual penetration with children older than 12 but younger than 16 years, and Clause 15 criminalised acts of sexual violation against children in that age group The structure of provisions in this part now also gave effect to the Committee request that a distinction be drawn between acts of sexual penetration and acts of sexual violation.


The term ‘child’ in the definitions clause reflected the fact that that term had a specific meaning in Part 1, namely a person older than 12 but younger than 16, as Part 1 codified the offence of statutory rape currently reflected in Section 14 of the Act.

Part 2: Sexual exploitation and sexual grooming of children, engaging in sexual acts in presence of children and exposure or display of or causing exposure or display of genital organs, anus or female breasts (“flashing”) or pornography or sexual acts to children

He explained that this part dealt with the sexual exploitation and grooming of children, as well as with the offence of flashing or pornography relating to children.

Clause 16: Sexual exploitation of child
Mr Du Preez stated that Clause 11 in the Criminal Law (Sexual Offences) Amendment Bill of 2003 (the 2003 Bill) prohibited child prostitution, child sex tourism and benefiting financially from the sexual exploitation of a child. That was now reflected in this clause.

Clause 17: Sexual grooming of child
The clause dealt with sexual grooming of a child and prohibited the manufacturing or distribution or promoting the use of such articles in the sexual act with a child. Clause 17(c) dealt with the so-called ‘Internet prowler’, and 17(d) criminalized the facilitator of that meeting.

Clauses 18-22
He explained that these clauses aimed to protect children from the more subtle, but equally harmful, forms of sexual exploitation. These clauses mirrored Clause 8 in the 2003 Bill, which dealt with these forms of sexual exploitation

Clauses 19 and 20 in the Bill employed similar wording, and criminalised any act of sexual violation or sexual penetration in the presence of a child. Clause 21 criminalised the act of flashing a child, and Clause 22 criminalised the exposure of a child to pornographic material. It was important to note that, in clauses 18, 21 and 22, the consent of the child to the commission of the acts was irrelevant.

Discussion
Ms Camerer noted that there was nothing in the Bill that dealt with the protection of vulnerable groups, as far as the manner in which they were required to adduce evidence was concerned.

The Chair informed Ms Camerer that the Bill did in fact contain such a provision, and the Committee would deal with it when it got to that clause. She requested Ms Camerer to hold off on her question until then.

Mr Du Preez replied that most of those provisions were now included in the Schedule to the Bill, but specifically in Clauses 54 and 55 of the Bill.

Ms Camerer asked whether it was thus the case that the entire section in the 2003 Bill on vulnerable witnesses and their treatment had now been removed from the Bill.

Mr Du Preez answered in the negative.

The Chair requested Mr Swart to air his views on the provisions.

Mr Swart stated that the view of the ACDP on the age of consent was very clear: it should 18 years of age, across the board. He would however be proposing amendments at the appropriate stage when the Committee began its formal deliberations on the Bill.

Ms Camerer stated that the approach adopted by the 2003 Bill to the age of consent created “a huge fuss”, and a special session was even held with Parliament’s Joint Monitoring Committee on the Rights, Status and Quality of life of Women and the NCOP. She asked whether there was any record of the outcomes of that session, as it would reflect Parliament’s approach to the matter at the time.

The Chair cautioned against the conflation of the two issues by Ms Camerer: firstly, the Bill was a direct result of the deliberations of this Committee on the 2003 Bill, whereas that special session was a matter best referred to Parliament itself.

Ms Camerer stated that the Committee must get input from the Joint Monitoring Committee on the Rights, Status and Quality of life of Women.

The Chair replied that she had invited them and they were present at the meeting held on Monday 19 June. She would liaise with the Chairperson of that Committee.

Ms Camerer stated that the DA would be concerned with lowering the age to 12. However, she did not yet have a formal position from her political party as she had not yet canvassed the matter at the DA party caucus.

The Chair sternly informed Ms Camerer that she would only be allowed to take the matter further once she had received a formal position from her party.

Imam G Solomon (ANC) noted that it was only in Clauses 14 and 15 that the phrase ‘certain children’ was used. That term was thus different from the definition of ‘child’ in all other provisions, and proposed that it be given a specific meaning for this chapter.

Mr Du Preez replied that he would consider it, as a matter of clarity.

The Chair agreed.

Chapter 4: Sexual Offences Against Mentally Disabled Persons
Mr Du Preez continued with the briefing and explained that the chapter was divided into two parts. The term ‘mentally disabled person’ was currently defined in the Bill’s definitions clause. He stated that Clauses 23 to 29 of the Bill were by and large a mirror image of Chapter 3 of the Bill, which dealt with sexual offences against children.

The Chair noted that the formulation in the Bill differed from the approach in the 2003 Bill, as the offence of rape now applied to all persons, including the mentally disabled.

Mr Du Preez agreed.

Ms D Clarke, from the South African Law Reform Commission (SALRC), informed the Committee that the formulation of the definition of ‘mentally disabled person’ in the Bill completely negated consent. The reason was that the SALRC wanted to emphasise that there was a certain category of mentally disabled persons who were in fact able to consent to sexual acts.

The Chair stated that that formulation acknowledged the there were different degrees of mental illness and mental disability, and the provision thus referred to a narrow category of mentally disabled persons. It was precisely because they were not able to appreciate the nature and consequences of the sexual act that they were thus not able to give proper consent to the sexual act.

The problem however was that the provision must not go beyond the protective group, so that the general provision applied. If the provision did not clearly define the category of mentally disabled persons referred to, then the courts would interpret the provision broadly to include people suffering from depression, for example. The provision must thus make it clear that it referred to a specific group of very vulnerable mentally disabled persons. The Bill would however not specify each and every degree of mental disability, but instead granted the courts the discretion to assess each and every case to identify the category of mental illness it fell under. She believed that that was the correct approach. She requested the Department to consider such a formulation.

Ms Clarke stated that (c) and (d) of the definition of ‘mentally disabled person’ referred to a person who was not mentally disabled but who, because of their physical disability, was unable resist or unable to communicate their unwillingness, even though they clearly appreciated the nature and consequences of the sexual act. The definition thus sought to cater for different kinds of disabilities, not only those who were mentally disabled.

The Chair stated that the minimum sentencing legislation stipulated ‘including people who are old and disabled’, and requested the Department to consider the inclusion of something similar. The provision must be drafted narrowly and must perhaps refer to a separate category of vulnerable mentally disabled persons. The Department must also consider the introduction of a test for vulnerable persons that could be applied across the board, which would then include the aged and physical disability etc.

Chapter 5: Services for Victims of Sexual Offences and Compulsory HIV Testing of Sexual Offenders
Part 1: Definitions and services for victims of sexual offences
Mr Du Preez stated that the so called ‘treatment clause’ in the SALRC Bill produced in 2002 (the recommended Bill) was discussed at a high level. Government decided that it would only provided Post Exposure Prophylaxis (PEP), within 72 hours of the commission of the sexual offence. The 72 hour deadline was in line with the established medical fact that PEP was only effective when administered within 72 hours of being exposed to HIV.

Clause 30: Definitions
This provision contained definitions that applied to this chapter alone.

Clause 31: Services for victims relating to Post Exposure Prophylaxis and compulsory HIV testing of sexual offenders
He stated that 31(2) limited the PEP treatment to a person who had reported the sexual offence within 72 hours of commission. Clause 31(3) required the police official to inform a complainant of his entitlement to receive the PEP treatment, at the point when the complainant made the report.

Clause 32: Designation pf public health establishments for purpose of providing Post Exposure Prophylaxis and carrying out compulsory HIV testing
Mr Du Preez explained that the clause required the Minister of Health to designate public health establishments for the provision of the PEP. It also granted that Minister the power to withdraw such authorisation.

Part 2: Application for compulsory HIV testing of alleged sexual offender by victim
This section dealt with the application for compulsory HIV testing of sexual offenders and flowed directly from Compulsory HIV Testing of Alleged Sexual Offenders Bill. The Department was instructed to conduct more research on the topic with a view to possibly including it in the Bill. The Department had since conducted the research, and the principle in the Compulsory HIV Testing of Alleged Sexual Offenders Bill was thus now included in the Bill, in this section.

He stated that Clauses 33 and 34 these clauses were taken largely from Clause 3 of the Compulsory HIV Testing of Alleged Sexual Offenders Bill.

Clause 33: Application by victim or interested person for HIV testing of alleged sexual offender
Clause 33(2) outlined the form taken by the application, which included the requirement that the victim list the grounds on which the alleged sexual offence was committed, and stipulated that the application must be made within 60 days of the commission of the sexual offence. This was due to the fact that medical evidence indicated that HIV took that period of time to manifest.

Clause 34: Consideration of application by magistrate and issuing of order
He stated that the Compulsory HIV Testing of Alleged Sexual Offenders Bill prohibited the presence of offender at the proceedings at which the application was considered by the magistrate. However 34(2) now allowed the alleged sexual offender to be present, if doing so would not give rise to any substantial delay. The application could also be considered in the absence of the victim, if it was in their best interests, as was proposed during the public hearings.

Part 3: Application for compulsory HIV testing of alleged sexual offender by police official
Clause 35: Application by police official for HIV testing of alleged sexual offender
Mr Du Preez explained that the Compulsory HIV Testing of Alleged Sexual Offenders Bill did not provide for an application by a police official. The reason for its inclusion in the Bill was that it served as an investigative tool for the police when dealing with a case in which a person, who knew that they were HIV positive, wilfully and intentionally raped another person. This was explained in the definition of ‘offence’ contained in Clause 30, which applied to this chapter alone. An example of an offence contemplated in this chapter would be attacking someone with a syringe containing HIV positive blood.

Part 4: Execution of orders for compulsory HIV testing and results of HIV tests
Clause 36: Execution of order and issuing of warrant of arrest
This provision required the order to be executed within 60 days from the date on which the alleged sexual offence took place. Clause 36(3) empowered the magistrate to issue a warrant for the arrest of the offender if they refused to comply with the order.

Clause 37: Use of results of HIV tests
Clause 7 of the Compulsory HIV Testing Bill provided that the results of the test were not admissible in criminal or civil proceedings. In Clause 37 the Bill however set out certain circumstances in which the results could in fact be used.

Discussion
Ms Camerer stated that before the April 2004 elections the Deputy Minister, when he was still Chairperson of this Committee, proposed a clause for inclusion in the Bill. It spoke to Clause 31 of the Bill and provided that a rape survivor would not be allowed to receive Anti Retrovirals (ARV) unless they had laid a charge with the South African Police Service (SAPS). However many commentators believed that that requirement could be detrimental to the health of the rape survivor, and were of the view that access to the ARVs should be granted as soon as possible. She noted that that qualifier was not included in the 2003 Bill, but had been proposed by civil society organisations.

The Chair responded that the problem that the Committee raised in 2003 was that if the legislation did not contain a qualifier, then every person living wit HIV would apply for the treatment and would qualify for it. She explained that the aim of the provision was to prioritise the provision of treatment for rape victims In order to do that the designated health establishments must provide PEP within 72 hours after the alleged sexual offence took place. A specialised category of protocols was needed for that.

She stated that the other issue raised by Ms Camerer was whether rape victims would have ready access to police stations, where they were required to report the sexual offence. Perhaps a provision could be inserted in 31(2)(b) which allowed the complainant to report the sexual offence at the designated health establishment or at a police station. The proposals of civil society organisations and other interested parties must be reduced to writing and addressed to the Committee and they will be considered, as was the usual practice by the Committee.

Furthermore, the Chair stated that PEP was currently the normative treatment for possible HIV infection. Her concern was that if PEP specifically were inserted in the legislation, it could possibly exclude other future treatments that could be discovered. She found it odd that a Constitutional Court judgment called for the provision of PEP specifically, as it too ignored other medical advances. The matter needed further thought.

Part 5: Miscellaneous
Mr Du Preez continued with the briefing by informing the Committee that this portion dealt with matters such as the establishment of a register of applications for HIV testing and subsequent court orders, ensuring the confidentiality of the outcome both of the application and the test results. The provisions dated back to clauses in the Compulsory HIV Testing of Alleged Sexual Offenders Bill.

Clause 41: Offences and penalties
He explained that the provision contained offences and penalties for laying a false sexual offence charge or a false application to ascertain the HIV status of an alleged sexual offender.

Clause 42: Regulations
The Chair asked Mr Du Preez to explain what precisely was envisaged in this provision. She asked whether the application would take the form of affidavits.

Mr Du Preez replied that he was not sure.

The Chair stated that the provision must specify the form the application would have to take, otherwise courts would being rejecting applications on the grounds that they were not in the proper form. The Rules Board might have something to say about it. She stated that Ms I Botha, State Law Advisor, must be canvassed on the matter.

Mr Du Preez agreed. The forms required would probably include the test results.

Chapter 6: National Register for Sex Offenders
Mr Du Preez explained that this chapter originated from Clause 23 of the 2003 Bill. The chapter was a result of the Committee’s request that the Department draft a dedicated provision on the national register.

Clause 43: Prohibition of certain types of employment relating to a child or children, or access to a child or children, of or by certain persons who have been convicted of a sexual offence against a child
He stated that 43(2) prohibited an employer from employing a convicted sexual offender in a position of authority, supervision or care of a child, and 43(5) allowed the employer to terminate that contract of employment when he found out about the conviction.

Clause 44: Establishment of National Register for Sex Offenders and designation of Registrar of Register
This provision required the Minister of Justice to establish the register and appoint an official to maintain the register.

Clause 46: Contents of Register
The clause outlined the contents of register, which related to the detail of the information captured on the person’s identity.

Clause 47: Persons whose names must be included in Register and related matters
Clauses 47(4), (5) and (6) set out exactly how the Commissioner of Correctional Services, the National Commissioner of the South African Police Service (SAPS) and the Director-General of the Department of Health must each provide the Registrar with information on the person.

Clause 48: Removal of particulars from Register
Mr Du Preez explained that it was important to note that the clause stipulated that the person himself must apply to have his name removed from the register after the time periods specified, and it was thus not automatically removed. This was reflected in 48(3)(a).

Clause 50: Confidentiality and disclosure of information
The clause ensured the confidentiality of the information referred to in the chapter.

Clause 51: Regulations pertaining to Register
The clause dealt with the regulations that needed to be devised for the national register and

Clause 52: Definitions and interpretation
He stated that it contained definitions that were required for purposes of the chapter alone.

Mr Du Preez explained that the briefing document drew a short comparison between this register and the Childrens Register, contained in the Childrens Act, which Members could peruse at their convenience.

Discussion
The Chair stated that the objective of the national register was important, and must be clarified. It was not a ‘name and shame’ register, but was instead a mechanism focused on protecting children from people who were employed in a position of authority over them. The national register obligated employers to seek clearance from the Registrar, and imposed a serious penalty if they did not do so.

The outstanding issue was where register to be placed. Her concern was with the linkages between the different government departments needed to be in place for the proper functioning of the Register, such as the Department of Correctional Services and the Department of Home Affairs. The information provided by the courts would probably be tenuous because they had no practical experience in providing that kind of information, and it would probably be a learning curve for them. She stated that her understanding was that the matter was being discussed, and Mr Du Preez will keep the Committee informed. The Committee might even need a briefing on the matter at some stage. She was however confident that the matter was not insurmountable.

Imam Solomon had a serious concern that there was the possibility of someone’s name being entered onto the Register erroneously, when they were in fact innocent. The allegation that someone was a sexual offender tarnished their reputation irreparably, and if they were accused erroneously, the situation was untenable. On the other hand, there were actual sexual offenders were “got off on technicalities” in the courts and violated others, especially children, with impunity. He asked how the Register, and the legislation generally, would balance those two competing interests.

The Chair replied that the Committee faced the problem when it dealt with the 2003 Bill, and the two different positions were mooted. The only way to broaden the ambit was for the Bill to stipulate that people currently and previously convicted of sexual offences must be included in the Register, including the names of those charged with the offence but that posed a Constitutional challenge. The Committee however held firm that the Register was not aimed as a punitive record of all paedophiles, but was instead aimed at protecting children from those in a position of authority over them.

Chapter 7: General Provisions
Part 1: Defences, evidentiary matters and extra-territorial jurisdiction
Clause 53: Defences
Mr Du Preez informed Members that the clause outlined defences to the offences listed in the Bill, and explained that 53(1) dealt with the defences to offences contained in Clauses 3 to 7.

The Chair noted that Clause 53(2)(a) employed various factors and not necessarily deception per se, whereas the 2003 Bill employed the test of ‘reasonably believed’. Clause 53(2)(b) did however refer to ‘deceived’. She asked Ms Clarke to check whether the specific reference to deception narrowed the defence or broadened it. She stated that she preferred a narrow defence.

Mr Du Preez explained that 53(2)(a) dealt with mentally disabled persons. It tied into the thinking elucidated earlier by the SALRC that there was a category of mentally disabled persons that were able to consent to engaging in sexual acts.

The Chair asked whether 53(2)(b) should reflect ‘the alleged commission of the offence and the accused person reasonably believed‘ or whether it should stipulate ‘or the accused person reasonably believed’. She sought clarity on the situation in which the person was under the impression that the person was not mentally disabled, but was unable to prove he was deceived into believing the person older than 18. She proposed that the provision either reflect ‘or’, or the current provision must be split into two separate provisions. The clause will be considered later in greater detail.

Mr Du Preez clarified that 53(2)(b) now entrenched the offence of statutory rape. Clause 53(3) stipulated that the 53(2)(c) and (d) defences did not apply if the accused was related to the child.

The Chair requested that 53(3) be drafted to include the option relating to the ability to consent, because 53(3)(b) must go a step further and clearly stipulate that the child cannot give consent because of their intellectual impairment.

Mr Du Preez agreed. He continued with the briefing and stated that Clause 53(4) stipulated that the child could not be prosecuted for benefiting from the offence contained in Clause 16(3) to (5) and Clause 23(3) to (5) if they were the victim of the crime.

The Chair stated that 53(4)(a) must contextualise the reference to the specific kind of ‘child’, because the current context was far too general.

Ms Clarke disagreed. She stated that if any child in a child-headed household was prostituting themselves to support the household, for example, then that child cannot be prosecuted.

The Chair stated that 16(3) however referred to a person who had knowledge of the offence, like a teacher.

Mr Du Preez contended that 16(3) could also be interpreted to mean a sibling.

The Chair stated that the 53(4) defence must be considered further. The current formulation ran the risk of creating unintended consequences, such as allowing 17 year olds to successfully rely on the defence.

Ms Clarke disagreed because 53(4)(b) expressly stipulated that a person contemplated in 16(1) could not rely on the defence, and thus excluded a 17 year old from successfully employing the defence.

The Chair stated that 16(4) and (5) were awkwardly drafted, and the formulation must be reworked. She was not opposed to the creation of the 53(4) defence for siblings but was concerned that it would have unintended consequences, such as allowing a 17 year old pimp to rely successfully on the defence. If such unintended consequences were created then the courts would have no discretion in the matter and would have to grant the defence to that person, even if legislation did not intend it. She requested the Department to consider it further. Furthermore, she stated that the common law never prosecuted siblings, only adults who had knowledge of the commission of the offence against the child.

Mr Du Preez agreed.

Clause 54: Evidence of previous consistent statements
He continued with the briefing and informed the Committee that the provision was taken from Clause 16 of the 2003 Bill. Clause 54 clearly stipulated that a negative inference cannot be drawn on account of the absence of previous consistent statements involving the alleged commission of a sexual offence

Clause 55: Evidence of delay in reporting
The provision prohibited the court from drawing a negative inference from any or delay in reporting the alleged offence.

Clause 56: Extra-territorial jurisdiction
Mr Du Preez explained that provision reflected the thinking in the recommended Bill that the legislation extend beyond the national borders, as that was not the case at the time that that Bill was considered. The provision was similar to the Rome Statute and the Prevention of Organised Crime Act.

Part 2: National Policy Framework
This portion of the Bill dealt with the national policy framework to be established by the Minister of Justice, in consultation with the Departments of Correctional Services, Social Development, Health as well as the Director of the National Prosecuting Authority (NPA) and SAPS. Clause 60 outlined the responsibilities, functions and duties of the inter-sectoral committee responsible for the adopt a national policy framework on sexual offences and its implementation.

Part 3: National instructions and directives, regulations and repeal and amendment of laws
Mr Du Preez explained that Clause 63 repealed all the common law sexual offences, as they were now contained in this legislation.

Part 4: Transitional provisions
He stated that this was an important portion of the legislation. In essence it indicated that where investigations into sexual offences were currently instituted or where a court case was pending at the time when the Act came into operation, those matters would be concluded in terms of common law and not in terms of this Act.

Part 5: Transitional provisions relating to trafficking in persons for sexual purposes
When the Committee considered the 2003 Bill it was of the view that this should be elevated to separate and substantive offence, which was now effected by Clauses 65 and 66 of the Bill. It gave effect to the relevant government protocol in order to prevent the suppression of vulnerable persons like children and women. The SALRC was currently investigating the trafficking of persons for sexual purposes and they have published a discussion paper.

The Chair stated that the outcomes of that paper would then be included in the legislation that dealt solely with trafficking, whereas the Bill dealt only with trafficking for sexual purposes.

Mr Du Preez informed the Committee that the Childrens Bill also deals with trafficking, but only in so far as it applied to the trafficking in children.

The Chair stated that the issue was whether the Bill should include an offence relating to trafficking at all, in view of the fact that the Department was drafting comprehensive legislation on trafficking in all its forms. The Committee was however recognised that that legislation could take some time to finalise, and was therefore of the view that the offence of trafficking in persons for sexual persons be included in the Bill as a transitional provision at least.

Ms L Bassett, Chief Director: Legislation in the Department, explained that Clause 65 stipulated specifically that the provisions were in place pending the adoption of the comprehensive legislation, to emphasis that the provision in the Bill was both transitional and that it applied only to trafficking for sexual purposes.

Ms Camerer stated that the Committee must look at the similar provisions in the Childrens Act to ensure consistency. SAPS had expressed a concern on this overlap when they briefed the Parliamentary Committee, and stated that the Department must find out whether SAPS was happy with the transitional measure.

The Chair asked Mr Bassett to check for possible overlaps and to consult SAPS on the matter.

Ms Bassett replied that SAPS had received the Bill before it went to Cabinet. They only commented on a few aspects, but did not indicate that they were unhappy with the Bill. He stated that he would nevertheless consult SAPS.

The Chair requested the Department to consult the Department of Correctional Services as well, as the implementation aspects of the register for sex offenders would require significant involvement of that Department. She requested Ms Clarke to provide the Committee with copies of the SALRC discussion document on trafficking, so that Members had a sense of the progress made to date.

Ms Clarke explained that the intention of that paper was ultimately to repeal the provisions in this Bill and the Childrens Act that dealt with trafficking.

Clause 67: Short title and commencement
Mr Du Preez stated that the Department proposed the renaming of the Bill the ‘Criminal Law (Sexual Offences and Related Matters) Amendment Act’, as Chapter 5 now included the Compulsory HIV Testing of Sexual Offenders draft legislation.

Mr Bassett added that this amendment accommodated the concern raised by Mr Jeffery on the previous day.

Schedule
Mr Bassett indicated that this was a technical portion of the Bill because it listed all the consequential amendments that needed to be effected to other pieces of legislation.

Ms Clarke took the Committee through the laws amended by the Bill, which included the Sexual Offences Act, the Criminal Procedure Act, the Prescription Act, the Criminal Law Amendment Act and the Prevention of Organised Crime Act. She indicated that the Briefing by the Department on Sexual Offences Bill, as presented to the Committee on 19 June 2006, explained in great detail the reason for each amendment.

Item 1: Sexual Offences Act of 1957
Section 1
The Chair expressed her concern that the amended definition of ‘person’ could now result in a child being used for the commission of the offence, because the Bill now stipulated that a child could not be found guilty. This matter must be passed by the Deputy Minister during the Committee’s meeting with him next session.

Item 2: Criminal Procedure Act of 1977
Section 154
The Chair agreed with replacement of Section 154 of the Criminal Procedure Act (CPA) because that particular provision had been very badly abused.

Section 158
She stated that although the Bill omitted the amendment to Section 158 of the CPA contained in the introduced Bill, its insertion in the Bill must be reconsidered. The Bill must also include the explanation provided in the briefing document, as well as a reference to the case of S v F 1999 (1) SACR 571 contained in the document.

She requested the Department to draft a separate briefing document that contained all the amendments proposed in the Schedule alone, as that would make it easier for Members to go through.

Section 195
The Chair expressed her uncertainty as to whether the amendment to Section 195 could be interpreted to include a crèche scenario, as the amendment appeared to have a narrow parental in interpretation. She proposed that the amendment include a reference to ‘supervision’, to then include a crèche scenario.

Ms Clarke agreed.

Section 227
The Chair noted that the amendments proposed in terms of this provision were merely aimed at giving effect to Clause 54 of the Bill. She expressed concern that the inclusion of the phrase ‘of any person against or in connection with whom’ at the beginning of the proposed Section 227(2) was not specific to the person charged, and thus ran the risk of being broader than the drafters intended. She requested the Department to reconsider the provision and to align its formulation with the actual intention of the Department.

She also requested the Department to expressly state that where an application was made requesting the admission of evidence on the complainant’s previous sexual history, in the form of an interlocutory order, that reasons must also be provided by the court as to why the application was granted. The reasons given could then provide the basis for an appeal. A similar principle was contained in the minimum sentencing legislation, and directed the Department to that document for guidance when drafting the provision.

Furthermore, she requested the Department to check whether the proposed amendment to Section 227(3) must refer to ‘shall direct’ or ‘may direct’.

Mr Bassett explained that the proposed amendments to Section 227(4) and (5) contained the test used by the Canadian legislation.

The Chair stated that it appeared to be a comprehensive test, and would be considered further by the Committee at a later stage.

Section 238
The Chair proposed that ‘incest’ be retained in Section 238(1). The common law crime of incest would in any event be repealed when this legislation took effect, and then the only crime of ‘incest’ would be the offence in the Bill.

Mr Du Preez disagreed and explained that the provision must refer to the specific offence in the relevant piece of legislation.

The Chair stated that the matter would be considered further.

Items 4 and 5: Criminal Law Amendment Act and Prevention of Organised Crime Act
Mr Bassett stated that the amendments to these laws were merely the replacement of the references in those Acts to the common law offences, such as rape, with the specific statutory reference in the Bill.

The Chair agreed. She noted that the document referred to the Bill as being a 2006 document, when in fact it was tabled in 2003. She requested the documentation to be amended to reflect 2003.

Concluding remarks
The Chair thanked the Department for the briefing. The Committee would continue its processing of the Bill after the July recess.

The meeting was adjourned.

 

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