Criminal Law (Sexual Offences) Amendment Bill: Deputy Minister briefing on 2003/04 deliberations

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Justice and Correctional Services

06 August 2006
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Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
7 August 2006
SEXUAL OFFENCES BILL: DEPUTY MINISTER BRIEFING ON 2003/04 DELIBERATIONS

Chairperson:
Ms F Chohan-Kota (ANC)

Relevant documents
Criminal Law (Sexual Offences) Amendment Bill [B50-2003] – as of 19 June 2006

SUMMARY
The Deputy Minister of Justice briefed the Committee on the deliberations that took place on the Sexual Offences legislation when he was still Chairperson of the Committee in 2003 and 2004. He explained the history to the approach followed in the Bill with regard to offences listed in Chapter 2 such as rape and sexual assault, as well as the issue of consent. The sexual offences committed against children in Chapter 3 were clarified, especially the position adopted with regard to statutory rape. The aim of Chapter 5 was to lessen the secondary trauma on the victim by allowing her to apply for the compulsory HIV testing of her attacker, so that she could take the necessary prophylactic treatment. He emphasised that the national register of sex offenders established in Chapter 6 was not a “name and shame register”, but instead aimed at preventing certain persons from working with or gaining access to children. Chapter 7 dealt with evidence to be adduced during a sexual offence case, and he called for the Bill to expressly repeal the cautionary rule. The purpose of the national policy framework and nature and purpose of the national instructions and directives were explained. In 2004 the Committee decided to include a provision on the trafficking in persons for sexual purposes while the larger and more comprehensive legislation on trafficking generally was awaited. The Schedule to the Bill amended, amongst others, the Prescription Act of 1969 and now proposed that prescription would only run from the time the person realised that she had been sexually abused, and not necessarily from the time the offence was committed.

During the discussion the Members sought clarity as to whether it was wise that the repeal of the common law would also repeal the irrebutable presumption that a child under the age of 12 could never consent to sex. The ACDP was of the view that the upper age for consent to sex should be increased from 16 to 18 years, to offer children greater protection. The DA was concerned that Chapter 5 was not clear enough, as the victim of a sexual offence should be allowed to report the offence at the medical facility where treatment would be given, in order to avoid any unnecessary delays in first having to report to the police station and then having to approach the medical facility for treatment. The removal of the old Chapter 7 that dealt comprehensively with the protection afforded to vulnerable witnesses was lamented. It was contended that the State was not doing enough to curb the secondary victimisation suffered in courts by female complainants of sexual offence cases, and it was proposed that the introduction of an inquisitorial judicial system would cure the problem.

MINUTES
Introduction by Chairperson
The Chair welcomed Adv Johan De Lange, Deputy Minister of Justice and Constitutional Development, to the meeting. She explained that the Committee had requested the Deputy Minister to address it in order for him to complete the mandate he was given by the Committee a long time ago. The Committee was of the view, quite unanimously, that the Deputy Minister must present the briefing on the draft legislation. She informed the Deputy Minister that the Committee had received briefings from Mr L Bassett, Chief Director: Legislation in the Department, and Mr H Du Preez, Drafter from the Department of Justice, on the technical aspects to the Bill.

Briefing by Deputy Minister on Sexual Offences Legislation
The Deputy Minister stated that the aim of his briefing was to account for the discussions and deliberations that took place on the Sexual Offences legislation when he was still Chairperson of the Committee. The Committee had extensive public hearings on the legislation towards the end of 2003 and at the beginning of 2004, and it was during the Committee’s deliberations after those public hearings that it decided on which amendments to accept. Many of the amendments to the legislation were proposed either during the public hearings or by Members of the Committee themselves. The Bill was then drafted based on those discussions, which included all aspects except one: Cabinet was of the view that sufficient research had not yet been conducted on the issue of criminalising the act by which a person who knows that he has HIV/AIDS nevertheless has unlawful sexual contact with another person. The Committee agreed that further research needed to be conducted. The research was conducted and highlighted that it was a relevant issue in many countries, with approximately 30 countries having reported convictions for that offence. He stated that the remainder of the provisions in the Bill were then deliberated on by the Committee, and two issues were dealt with via resolution.

He indicated that at that time the Committee felt it was Important to create specific offences for sexual offences committed against children and mentally disabled persons, over and above the offences in the Bill such as rape and the different forms of sexual violation and sexual assault. The provisions on sexual offences committed against children and mentally disabled persons in the initial version of the Bill were not well organised, and it was felt that the haphazard structure of the provisions would result in the courts imposing inconsistent sentences depending on the category of vulnerability. The Committee at the time considered it a more prudent option to house all the provisions on sexual offences against children in a single section, and the same approach was adopted with regard to sexual offences against mentally disabled persons.

Chapter 1: Definitions and objects
Rape
The Deputy Minister explained that the Committee effected a few changes to the definition of rape. He emphasised that a proper understanding of the basis of all the sexual offences contained in the Bill turned on the definitions of the concepts of ‘penetration’ and ‘violation’. The current provision stipulated that the crime of rape was an unlawful act of penetration without the person’s consent, and all the other acts of indecent assault were now called ‘sexual assault’. The Committee was of the view that distinctions should not be made between the different crimes for unlawful oral and anal sex and the rest, because all those acts should properly fall under the crime of rape. It was for that reason that the current version of the Bill dealt with all those offences under the definition of sexual penetration. .Furthermore, the previous distinction between boys and girls and men and women had now been taken away, and the offence of rape was now non-gendered.

The definition of rape was thus the first important definition, and the basis of all sexual offences in the Bill turned on the definition of penetration and violation. The other sexual offences contained in the Bill were very specific and each had its own specific elements.

Sexual violation
The Deputy Minister indicated that that was the following most important definition. It essentially criminalised every other sexual or lewd act that one person could do to another, but which did not involve penetration. The various offences were listed in the legislation. The provisions currently in the Bill were thus broader than in the previous version of the Bill, in order to cover all possibilities.

Consent
There was much debate as to whether the offence should turn specifically on consent or not. The reason offered for the removal of consent was that the New Zealand legislation plus the jurisprudence of the State of Michigan (United States) had done away with the idea of consent. Very soon those courts had to interpret the new offence of rape without the element of consent, and handed down judgements in that fashion. However, those courts soon returned to the common law approach which included the idea of consent, and it was thus reinstated.

The problem was that if the idea of consent was removed it would create an entirely new offence for South Africa, and it would take many years for the courts to interpret the new offence of rape and to build up jurisprudence. The South African courts could of course follow the example of jurisdictions such as Michigan and New Zealand and revert back to the idea of consent.

At the time of the debate, the Committee was very opposed to creating such uncertainty, and well as with leaving it ultimately to the courts to decide the matter. The Committee thus decided to retain the idea of consent but also introduced a new element, which other countries were also introducing: it pulled all the different circumstances which would not amount to consent into one single provision. Those four grounds were listed in Clause 1(3)(a) to (d). That formulation thus clearly instructed courts to use the usual principles that applied in the common law, but also listed those four grounds which, if proven, would always amount to rape, and the courts would have no option but to find the defendant guilty.

The Committee also decided to follow the approach in other jurisdictions and refer to persons involved in the sexual crimes in alphabetical order. Thus the accused would be ‘A’, the complainant would be ‘B’, the third person would be ‘C’ and others were referred to as ‘D’. ‘E’ etc. This ensured clarity.

Clause 1(2) and (3) clearly defined consent up front as meaning voluntary and non-coerced agreement. Clause 1(3)(a) to (d) then defined the circumstances in which consent could never have been given.

Chapter 2: Sexual offences
The Deputy Minister indicated that the Committee decided to introduce new offences for the first time in South African law. It included the criminalisation of unlawful sexual acts with a young boy as rape, whereas before it merely amounted to the lesser charge of sodomy. Unlawful anal and oral sexual acts etc/ were now also categorised as rape. That was introduced for the first time. As explained earlier, the issue of criminalising the act by which a person who knows that he has HIV/AIDS nevertheless has unlawful sexual contact with another person has been removed from the latest version of the Bill, because Cabinet instructed more research to be conducted on the matter. That aspect was thus removed from the original definition of rape included in the earlier version of the Bill.

Compelled rape
The Committee created another new kind of sexual offence, which probably fell under accessory liability. At the time that the Committee was discussing the Bill in 2003 and 2004 the Staggie case was being decided. In that case Staggie, as gang leader, allegedly forced a member of his gang to have sex with another person, in front of the entire gang. It was probably aimed at asserting his authority as gang leader, or could also have been a form of initiation for that gang member. In response to that case the Committee then created the offence of compelled rape which was not previously a crime, and was aimed particularly at such gang activities.

Sexual assault
The provisions on sexual assault were really the old indecent assault offences. The offence of compelled self-sexual assault was introduced. It dealt with the situation in which someone like Mr X does not rape you himself or compel someone else to commit the rape, but instead compelled the victim herself to inflict the unlawful sexual act on their own person. Some courts have however struggled with the idea of convicting a person for the offence of compelled sexual assault.

The Committee thus attempted to confine all the offences that related to sexual penetration and violation into a single part of the Bill. He reiterated that all the offences listed in this part of course turned on the question of consent.

Exposure or display of or causing exposure or display of sexual acts or genital organs, anus or female breasts (“flashing”) or pornography to person 18 years or older
Those offences were dealt with in Part 3 of Chapter 2, and listed various generic crimes that could be committed to persons older than 18. The act of showing pornography to a person over 18 without their consent has now been criminalised. Although the issue of pornography was usually dealt with by the legislation of the Department of Home Affairs, the Committee was of the view that pornography was closely linked to the commission of unlawful acts of sexual penetration and violation, and must for that reason be included in the Bill.

Incest, bestiality and necrophilia
These were currently common law offences and were now contained in Part 4 of Chapter 2. The Committee was of the view that all sexual offences must be contained in the Bill, so that it could be an omnibus of every single sexual offence that was criminalised in South Africa. It thus included those common law offences.

Chapter 3: Sexual offences against children
The Deputy Minister explained that the offences listed in the previous chapter would apply to children as well, but this chapter listed the sexual offences committed against children specifically. The first and most difficult offence that the Committee dealt with, was statutory rape.

Statutory rape
The offence referred mainly to children aged 12 to 16. It stipulated that any act of sexual penetration committed by a person with a child in that age group could never be lawful, as the law did not regard the child’s consent as being valid consent. The Bill thus refused to acknowledge the child’s consent, even though the two persons had agreed to the sexual act.

It involved two categories of persons. The first referred to children aged 12 to 16 who had sex with each other, and the second referred to person older than 16 who had sex with children aged 12 to 16, even where the child agreed. The Committee decided to retain the current statutory rape position with regard to a person older than 16 having sex with a child aged 12 to 16. The more difficult category was children aged 12 to 16 who experimenting with sex amongst themselves. Mr S Swart (ACDP) at the time called for the upper age to be set at 18 and not 16. That this Committee could still debate issue, as the Committee at that time had opted for the majority view which was to set the upper age at 16. There was definitely sympathy for Mr Swart’s view, but the danger in setting the upper limit at 18 was that it would expand criminality to include 17 and 18 year olds that experimented with sex. It was for that reason that the Committee decided that if the two persons were both aged 12 to 16, the National Director of Public Prosecutions (NDPP) must decide whether or not to prosecute. Secondly, if the NDPP decided to do so, both persons would have to be prosecuted. That satisfied the equality clause.

Consensual sexual violation of a child
The lesser offence of the commission of a sexual violation against children, which was contained in the previous version of the Bill, was retained in the current version. The Committee however decided to include a defence to a charge of consensual rape, which was contained in Clause 53(2)(c). It stipulated that it would be a valid defence if the children aged 12 to 16 who engaged in the sexual act were only two years apart. The Director of Public Prosecutions in each province was given the power to decide whether or not to prosecute.

Sexual exploitation of a child
Other much broader sexual offences were included such as the sexual exploitation of child, which was basically the equivalent of prostitution. The Bill did not deal with adult prostitution, because the South African Law Reform Commission (SALRC) was working on a report on that issue. The Deputy Minister requested the Committee to revisit the provision on the sexual exploitation of children, because the wording appeared clumsy. The aim of the provision was to cover all the circumstances in which a child could be sexually exploited. The provision hit the pimp and all those persons who made the sexual exploitation possible. He requested the Committee to consider criminalising the person who actually paid for the sexual act, because they were the real source of the problem. They must be included in the legislation, as was done in the Scandinavian countries.

Sexual grooming
The Deputy Minister explained that this offence did not relate to the actual physical penetration or violation or exploitation of a child, but criminalised the grooming of a child so that she naturally fit into that roll. Grooming could be done by exposing the child to pornographic films or allowing them to watch sexual acts, thereby conditioning them to do such deeds as though it were natural. This offence was linked to the trafficking of children for sexual purposes, which was a big issue and was included at the back of the Bill.

Clauses 18-21 mirrored the provisions in Chapter 2, but the Committee an offence in Clauses 19 and 20 where a person had sex in the presence of a child. The provision did however not apply to the situation in which a family lived in close quarters, but rather to the situation in which B was aware that a child was observing the sexual act.

Chapter 4: Sexual offences against mentally disabled persons
The sexual offences against mentally disabled were identical to those in the previous chapter. The only difference was that statutory rape and consensual sexual violation were omitted from Chapter 4, because mentally disabled persons were not able to provide valid consent to those acts.

Chapter 5: Services for victims of sexual offences and compulsory HIV testing of sexual offenders
The first important issue was that these services were not being fully provided by the Department of Health before the introduction of the Bill. The Committee then engaged the Department of Health on the matter and agreement was reached that the services would be rendered at a designated health facility, which would be determined in the Government Gazette. The provisions essentially stipulated that if the victim of a sexual offence registered the crime within 72 hours of its commission, they would be entitled to receive those services at a designated facility. The Deputy Minister reminded Members that there was significant debate at the time as to whether the provision should be broadened, but he was not prepared to enter into that debate at this point.

The second issue was that the content of the Compulsory HIV Testing Bill was now included in the Sexual Offences Bill, and so the Compulsory HIV Testing Bill would be withdrawn by the Department. That Bill recognised the problem facing the South African Police Service (SAPS) with persons who knowing full well that they were HIV positive, had sexual intercourse with another without their consent. The SALRC was of the view that such conduct must be criminalised, but via the existing offences in the criminal law and not the Bill. The Committee however disagreed. Even if existing criminal laws could be used, the problem was that SAPS currently had no mechanism with which to force a person to be tested for HIV, because the Criminal Procedure Act only dealt with the testing and drawing of blood to check levels of alcohol intoxication. The current version of the Bill thus allowed victims of a sexual offence, if they knew who the offender was, to approach a court up to 60 days from the commission of the sexual offence for a direction that the HIV test be conducted on the offender.

He reminded Members that the Committee had engaged in all the debates on the issue. The aim of the provision was to lessen the secondary trauma on the victim, because she simply wanted to know if her attacker was HIV positive so that she could take the necessary prophylactic treatment. How exactly the courts used the evidence of the HIV test was up to them. The intention of the provision was not to secure evidence in order to find the offender guilty, but was solely to avoid the secondary trauma suffered by the victim of a sexual offence.

In reply to the Chair commenting that the evidence could be used by the court in a civil case against the offender, the Deputy Minister agreed.

Chapter 6: National Register for sex offenders

This chapter was introduced by the Committee. The Deputy Minister stated that he was aware that there was much debate around the matter in the Children's Bill, but he would not be delving into that debate because his mandate was to report on the Committee’s former deliberations on this Bill. He did however indicate that the register in the Children's Bill was totally different, as it was not limited to sexual offences alone. This register must not be misunderstood, because the emphasis should properly be placed on the purpose of the register and not on the information contained in the actual register itself.

The aim of the register was to prohibit a certain category of persons from working with children. It stipulated that any person who has been found guilty of the commission of a sexual offence against a child, before and after the coming into operation of the Bill, would not be allowed to work with children. Such persons would not be allowed access to children, nor would they even be allowed to supervise children. The provision thus targeted paedophiles who preyed on children. He emphasised that the register was completely confidential.

The Deputy Minister informed the Committee that he foresaw persons whose name was placed on the register challenging it on the grounds that it violated their constitutional right to work. The Department however felt very strongly that such persons must be prohibited from working with children, and it was hoped that the courts would agree. Municipalities might even have to take certain steps to accommodate this provision.

The employer of any of those categories of persons must confidentially apply to the registrar and ask whether Mr X was on list. If he was, that employer would not be allowed to employ him. The chapter also imposed an obligation on Mr X to disclose that he has been convicted of committing a sexual offence against a child, and failure to make such disclosure was criminalised. The legislation was thus coming down very hard on such offenders.

The Deputy Minister stated that he had read in the media that the register was a “name and shame register”. However the Department specifically explained that it was definitely not the case, and that the register was instead aimed at preventing certain persons from working with or gaining access to children.

The Chair stated that she raised the issue with Mr Bassett that, although the Bill required employers to first contact the registrar before employing Mr X, the Bill did not properly accommodate the situation in which wealthy persons opened up their own premises and engaged in such conduct. That category of persons must be considered further, because the fact that they were not employees allowed them to avoid the provision. Institutions such as private schools must also fall within the ambit of the legislation.

The Deputy Minister agreed with the Chair that the loophole must be closed.

Chapter 7: General provisions
The chapter contained all the defences and evidentiary matters. The most important issue was the introduction of extra-territorial jurisdiction in Clause 56, which brought South Africa in line with its anti-terrorism and corruption Bill as well as the Rome Statute on the International Criminal Court. The provision now ensured that even if sexual offences were committed outside South Africa, a South African court would be able to hear those cases. That was not previously the case. He indicated that the defences to the offences listed in the Bill were contained in Clause 53.

Previous consistent statements and delay in reporting of sexual offences
These were two important issues. In the resolution to the previous version of the Bill the issue of the use of the cautionary rule in sexual offences cases was raised. The original Bill contained a clause on the matter, but the Committee was not satisfied with its formulation and it was sent back for further research. That clause has still not been finalised, and the Deputy Minister urged the Committee to finalise it as soon as possible. he was himself trying to figure out a formulation that would deal with the issue properly.

The cautionary rule provided that women often imagine acts of sexual abuse, and that the male judge must not allow women "to make up such stories". It stated that when a female complainant in a sexual offence case gave evidence during the trial, the judge must, when evaluating that evidence, remember that women have a propensity to lie about incidences of sexual abuse. The Deputy Minister stated that the cautionary rule clearly had no place in the South African legal system. In fact the Supreme Court of Appeal dealt with the matter in the case of S v Jackson, and essentially removed that rule. It was thus believed that the cautionary rule was a thing of the past. However in recent cases the courts have held that the cautionary rule was still applicable in South African law, just that it was not applicable in every single case. He stated that if that was the interpretation, the question then was who decided when exactly the cautionary rule applied and in what circumstances its use was justified. The matter must be addressed quickly. Further discussion on the matter was needed so that it could possibly be included in the Bill. The only issue was finding the correct wording.

National policy framework
The Deputy Minister explained that the Committee recognised that the Bill spanned several government departments. It was therefore felt that the legislation must provide for certain implementation issues that were not usually included in a piece of legislation. The intention was to ensure that government operated differently to ensure the services listed in the Bill were provided. The first thing the Committee did was to create a national policy framework, which must be passed within one year after the commencement of the legislation and must be reviewed every five years. The second was the establishment of the inter-sectoral committee tasked with the management of sexual offence matters.

National instructions and directives
The National Commissioner of Police, the Commissioner of Correctional Services, the Directors-General in the Departments of Social Development and Health as well as the National Director of Public Prosecutions (NDPP) were now tasked with drafting specific national directives on particular issues, which were spelt out in the legislation. All the directives had to be tabled in Parliament six months after the legislation came into operation. He gave examples of what the directives aimed to do. The directives would assist SAPS in strengthening how it investigated sexual offence cases; for the NDPP, the directives would deal with sexual offences cases in general and devise means to prevent withdrawal of sexual offence cases and for the Department of Health, they would deal with the training of staff at the designated facilities.

Trafficking in persons for sexual purposes
This issue was particularly sharply raised during the Committee's deliberations in 2004. It was of the view that it was not prudent to wait for the much-anticipated comprehensive law on trafficking, but to at least deal with the trafficking in persons for sexual purposes in the Bill. It was for that reason that the Committee included a transitional arrangement, which fully covered all aspects of trafficking as far as it affected any form of sexual exploitation, grooming or abuse.

The Chair stated that most of the submissions opposed the clause, which astounded her.

The Deputy Minister stated that people probably misread and misunderstood the provision.

Schedule
Prescription Act of 1969
The amendments to the Prescription Act were as a result of the case of Van Zyl v Hoogenhout. The amendments seek to cater for the reality that people do not always report incidence of sexual abuse immediately, especially those who were mentally disabled, because it could only manifest or come to the fore much later in life. It was for that reason that the amendments proposed that prescription would only run from the time the person realised that she had been sexually abused.

The Deputy Minister requested the Committee to re-look the prescription of criminal matters contained in Clauses 3 to 7 of the Bill He was of the view that Clauses 3 to 7 might have to be included here. The Committee must also carefully consider the manner in which the complainant's previous sexual history is dealt with in the Schedule, as well as the minimum sentence provisions for sexual offences.

Discussion
The Chair stated that her concern with Clause 63 was that, in calling for the repeal of the common law, it would also have the effect of "kicking out" the jurisprudence on the irrebutable presumption that a child under the age of 12 can never consent to sex. She stated that Mr Bassett was asked to research the matter.

The Deputy Minister replied that the law was much stronger now because it did away with the irrebutable presumption, and it was now expressly and clearly included in the legislation that a child under the age of 12 can never consent to sex. The legislation thus elevated it from a presumption to a fact in law.

Mr S Swart (ACDP) thanked the Deputy Minister for appearing before the Committee and refreshing its memory. The primary issue for him was the age question. To his mind consent was such an important issue and granted children a very important protection. He believed firmly that the upper age should be raised to 18 years, as the feeling largely in religious circles was that the age of consent was too low. He appreciated the fact that the Deputy Minister was at least considering its extension. He stated that the Bill was significantly improved and was welcomed by the ACDP.

The Deputy Minister responded that the age of consent was a really problematic issue. The fact of the matter was that children went through a phase when they experiment with sex, and the danger in statutory rape cases was that the older boy would then be found guilty of a conviction of rape even though it was consensual. The one benefit in increasing the upper age to 18 was that it protected all children 18 and below from sexual offences committed against them by adults. Conversely, the danger was that it also widened the area in which the children themselves were experimenting with sex. Furthermore, the reality was that 17 year olds were now entering university, and 18 year olds bore quite some responsibility as they were allowed to have their own bank accounts and some even began working. They were thus at a certain level of responsibility and maturity and by extending the upper age to 18 the State would be criminalising their consensual acts. He admitted that he did not have the answer to the problem, but was merely raising the issues. Society had always had the offence of statutory rape and he believed it should be retained. However, when dealing with consensual sex between children aged 12 to 16, the Bill required the NDPP to decide whether to prosecute them or not.

Ms S Camerer (DA) failed to understand the reasoning behind the submissions that called for the removal of the clause on trafficking for sexual purposes.

The Deputy Minister replied that he would stand very firmly on that cause because he did believe that government could not wait any longer for a provision on it. It was nothing but foolishness to think that trafficking was not linked to sexual exploitation. He was of the view that the Bill should criminalise such activity immediately so that none of the perpetrators could fall though the cracks while government was waiting on the larger and more comprehensive legislation on trafficking generally.

Ms Camerer asked the Deputy Minister to clarify the provisions on the services provided to victims of sexual offences. Criticism had been levelled against the Bill that victims only received those services when they reported the sexual offence to SAPS, whereas the Bill itself stipulated that victims could receive the services if they reported it to a designated medical facility. Clarity was thus needed on where exactly the crime was to be reported. She was of the view that it should be reported at the medical facility where treatment would be given, as well as at a police station.

The Deputy Minister responded that the initial idea was that the victim would receive the treatment when they reported the crime at a police station. It was however realised that the reality of the situation was that people often had to travel some distance to the medical facilities. The trauma would thus be unnecessarily prolonged if they were required to first travel to the police station and report the crime, and then travel to the health facility to receive the treatment. It was for that reason that the Department, in consultation with the Department of Health, decided to create a prescribed form that the victim would fill in when they appeared in hospital. It was hoped that that would accommodate everyone.

Ms Camerer lamented the fact that the old Chapter 7 that dealt comprehensively with the protection afforded to vulnerable witnesses had been removed from the Bill.

The Deputy Minister replied that it was felt that that clause was both unusual and meaningless. A new approach was preferred that instructed the NDPP to set out all the circumstances that each prosecutor must take note of in each case when considering Clause 1(3). The NDPP had since set out those guidelines. Those were the practical issues The legal issue was that if the Bill declared certain people as vulnerable, it would also have to stipulate the rights and obligations that stemmed from such a declaration. It was for that reason that the current route was followed.

Dr T Delport (DA) stated that it was in fact a misnomer to talk about an 'irrebutable presumption' because it was not really a presumption but instead a rule of law.

The Deputy Minister agreed.

Dr Delport expressed his grave concern at the secondary victimisation suffered by women complainants in South African courts, and stated that he did not believe the State was doing enough to protect them. The very core of the problem was the nature of the legal system itself, which suggested that the truth could only be arrived at via cross-examination. He proposed that an alternative to cross-examination be considered as a matter of urgency, possibly even its removal. The South African legal system was largely based on the Anglo-American system, which broadly speaking was based on an adversatorial concept. However on the continent an inquisitorial model was followed, where the judicial officer himself investigated the case and posed questions. He was aware that it would be extremely difficult to infuse a different system into the existing South African system, but stated that much more work must be done to more drastically curb the secondary victimisation suffered in courts by female complainants of sexual offence cases.

The Deputy Minister responded that the general consensus was that the manner in which sexual offence cases were currently dealt with in South African courts must be done away with. Sexual offence cases must be dealt with in the same way as any other case, except that it had a few specific rules that needed to apply. It would be difficult to conduct a sexual offence case in an inquisitorial manner, because it would give rise to a constitutional problem. It was however feasible to consider whether certain aspects could be changed to an inquisitorial model, but the reality was that at the moment the whole system was in the hands of the judicial officers. The problem was thus with them because they were allowing the legal representative of the alleged offender to delve into matters such as the sexual history of the complainant. In fact an inquisitorial model would give the judicial officers more power, which could in fact result in more problems.

It was imperative that judicial officers be sent for training, such as social context training, to sensitivise them to the realities of the society. The problem was that it was a patriarchal society with a certain mindset, and that was difficult to change. He stated that he was flabbergasted when he read some of the judgements in sexual offence cases because some of the judicial officers were good people whom he knew personally, but for some reason judicial officers had a "funny way of dealing with sexual offence cases". The problem was thus systemic. The facts were that every judicial officer interpreted cases in terms of their own world view. It was not possible to legislate how they looked at the world, but it was possible to train them to optimise their objectivity when looking at evidence in sexual offence cases.

Ms S Botha (DA) asked how the liability would be apportioned for each party involved in the case of compelled rape.

The Deputy Minister explained that, in the example he used earlier, Mr Staggie would be guilty of the offence of compelled rape and the gang member who committed that act would be guilty of rape.

Ms Camerer was not sure whether the inquisitorial model would assist, and was unsure as to how far the judicial officer allowed the questioning of the victim to go.

Secondly, she was concerned that the regulations might not be gender-sensitive enough and asked the Deputy Minister to ensure that women in the Department played a role in writing those regulations.

The Deputy Minister replied that the Sexual Offences Unit (SOCA) within the Department was headed by a woman, and the Minister of Justice was also a woman. He assured Ms Camerer that the legislation was well intentioned, and was aimed at getting prosecutors to start acting in a certain way. The legislation must require the judicial officer to give specific reasons when refusing to entertain a line of questioning, and that would perhaps have to be effected by amending the Criminal Procedure Act. The courts must be allowed to build up a wealth of jurisprudence on the issue. The ordinary courts dealt with many sexual offence cases, but reported a conviction rate of only 40%. That was not the best result. He cautioned however against the creation of "A and B justice" when dealing with sexual offence cases and all other cases. He stated that to his mind, apart from pushing for the establishment and capacitating of dedicated sexual offence courts, it was more important to train all prosecutors to at least have a basic understanding of the specific nature of sexual offence cases. He foresaw the risk that a complainant could challenge government on the grounds of equality before the law, if their sexual offence case was drawn out and ultimately thrown out because it had to go through a non-capacitated ordinary court.

Concluding remarks
The Chair stated that it had been a very useful session and thanked the Deputy Minister for taking time to brief the Committee. She ruled that all questions and matters that were raised with the Deputy Minister during the session were now "water under the bridge" and they would not be opened for discussion again.

The meeting was adjourned.

 

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