Criminal Law (Sexual Offences) Amendment Bill: briefing on Clauses 36 to 47

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Justice and Correctional Services

14 August 2006
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Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
15 August 2006
SEXUAL OFFENCES BILL: BRIEFING ON CLAUSES 36 TO 47

Chairperson:
Ms F Chohan-Kota (ANC)

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

SUMMARY
The Committee continued to be briefed on the Bill, from Clauses 36 to 47, under the guidance of the drafters from the Department of Justice and the South African Law Reform Commission.

The Chairperson asked the drafters to consider whether the Bill regulated the manner in which the medical practitioner conducted the test in 36(1)(b), and the implications of the 60 day time period in 36(2). The Department was requested to look at Clause 39 again to ensure a formulation that ensured confidentiality. It was proposed that Clause 40 be amended to allow a mechanism that obviated the need for the HIV testing of the offender to be conducted twice, and that the results be kept at the designated health facility for easy access by the police officer. The clause must also prescribe the precise body samples to be used. The wording of the offence of malicious intent in Clause 41 must be tightened to refer to a person who both laid a charge and also lodged an application under Clause 33.

The DA expressed disfavour with having two separate registers on the same matter in both the Children’s Act and in Clause 43 of the Bill, but the Chairperson was of the view that that there was a need for this Bill to establish a register as soon as possible because it could very well take a substantial time for the more comprehensive register in the Children’s Act to be made operative. The Committee requested that the provision be tightened to ensure that both current and prospective employees were included, to ensure that the “play group” scenario was properly covered and to cater for contractors as well.

Under Clause 47 the Chairperson requested the Department to check the information on the alleged offender that was currently listed on the form that would be submitted to the Registrar by the relevant authorities.

The Committee would continue its discussions on the Bill on the following day..

MINUTES
Chapter 5: Services for victims of sexual offences and compulsory HIV testing of sexual offenders
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
Mr H Du Preez, (Senior Law Advisor, Department of Justice and Constitutional Development (DOJ)), read through the clause.

Mr L Bassett (Chief Director: Legislation, DOJ) explained that the “prescribed information” referred to in 36(1)(e)(ii) was prescribed in regulations. The regulations spelt out in detail the kind of information required.

The Chair requested that Members be provided with copies of the regulations. Secondly, she asked whether they related to the application procedures provided for in Clauses 33 and 35, which were different in nature.

Mr Du Preez confirmed that this was so.

The Chair stated that if that was the case then Clause 36(1)(e) needed to include a reference to the prosecutor as well. She proposed the inclusion of a provision that required the National Director of Public Prosecutions (NDPP) to introduce directives for prosecutors, within a specified period of time, that would ensure confidentiality of the HIV test result in the applications referred to. A similar provision must be inserted for the National Commissioner of the South African Police Service. She stated that her proposal would ensure that if the test results would be made public in the court, the prosecutor would have to apply to court for it to be cleared of all unnecessary persons.

Mr Du Preez replied that he would consider its inclusion.

Imam G Solomon (ANC) asked whether the testing would take place after the person was charged, as it surely could not take place before then.

Mr Du Preez answered in the affirmative. He informed Imam Solomon that this was provided in Clause 31(3).

Mr L Landers (ANC) disagreed, and contended instead that the relevant provision was Clause 31(2)(a).

The Chair stated that 31(2)(a) must be amended to include a reference to “subsection 1(b)” as well.

Both Mr Du Preez and Mr Bassett agreed.

Mr Hennie Potgieter, from the South African Law Reform Commission, informed the Committee that the relevant provision was actually Clause 33(3).

The Chair agreed. She asked whether the Bill regulated the manner in which the medical practitioner conducted the test in 36(1)(b). She asked whether the prescribed forms used allowed for an accurate and proper recording of the sample. She stated that certainty was very important.

Mr Bassett responded that he would have to consult the regulations, because he suspected that the regulations were not as tightly formulated as the Committee may want.

The Chair) asked what would happen in the situation in which the order was complied with within the 60 day period, as prescribed in 36(2), but the actual execution of the order fell outside the 60 day period. She reminded Members that during the previous week the Committee considered a more general application that did not have the 60 day time limit. Under that general application people would have to prove, on a balance of probabilities, that they needed the HIV test information, and the test applied would balance the person’s right to privacy against the possible harm of the life-threatening disease.

Secondly, she sought clarity on the reasons for the inclusion of the words “Notwithstanding the provisions of section 43” in 36(3).

Mr Bassett responded that he would check the implications of the inclusion of that phrase.

Imam Solomon asked whether 36(1)(e) stated clearly enough that the “interested person” referred to must first have obtained written permission from the victim to have the results of the HIV test. This must be made clear in the provision because it impacted on the confidentiality of the test results and the person’s right to privacy.

The Chair stated that the definition of the term “interested person” in Clause 30 was relevant, and must be read with 33(1)(b), which clearly stipulated that the written consent of the victim must first be secured. She was of the view that those two provisions thus provided sufficient protection, and a specific reference did not have to be included in Clause 36. Furthermore, the interested party would not be able to use Clause 36 if he failed to comply with Clause 33.

Clause 37: Use of results of HIV tests
Mr Du Preez read through the clause.

The Chair emphasised that the aim of 37(a)(i) was to empower the victim and allow him/her to make certain vital decisions relating to lifestyle, such as whether a woman complainant should breastfeed etc. She reminded the Committee that this provision received much focus in the submissions. It was the case that certain victims decided not to take the Post Exposure Prophylaxis (PEP) if the tests were negative, feeling that they did not need it. The danger was that they could very well be in a window period during which the virus had not yet manifested fully. It was for that reason that victims should always take the full PEP treatment. Therefore the provision ensured that the test results would be used to inform the victim and allow her to make informed personal decisions. Over and above that the victim could always use the test results as evidence in separate civil proceedings against the offender, seeking compensation in the form of damages.

Part 5: Miscellaneous
Clause 38: Register of applications and orders
Mr Du Preez read through the clause.

The Chair asked who the word “prescribed” in 38(2) referred to.

Mr Du Preez replied that access would be prescribed by the Minister of Justice, after consultation with the National Commissioner of SAPS.

The Chair noted that no objections were raised to the clause.

Clause 39: Confidentiality of outcome of application
The Chair sought clarity on the reason for the clause, because it did not refer to the confidentiality of the test result itself but rather of the application for the test. She was of the view that it did not hurt to have the clause, because it was an important protective measure. There could however be unintended consequences because the prosecutor could know that the application was made ex post facto.

Mr Bassett proposed that a reference to the prosecutor be included as well.

The Chair requested the Department to look at the provision again to ensure a formulation that ensured confidentiality. She proposed a catch-all provision at the end of the clause that would include any person who sought the test results for the purpose of instituting civil or criminal proceedings.

Clause 40: Confidentiality of HIV test results obtained
Mr Du Preez read through the clause.

The Chair asked if the entire process would have to be repeated if the victim applied for the test and was given the PEP, but the police officer did not file the Clause 35 application. She proposed that a mechanism be inserted that obviated the need for doing the test twice. Perhaps the mechanism should allow the police officer to get test results at the same health facility where the test was conducted. It should also be required that a copy of the test results be kept.

Her concern was that the process was becoming increasingly complicated, because 40(1)(c) stipulated that the police officer would not be able to gain access to the test results if the application was made under Clause 34. She proposed that the provision stipulate that where the victim applied for the HIV testing of the offender, such test results would be kept at the designated health facility so that the police officer could get a copy if, for example, the victim lost their copy. She firmly believed that a record of the results should be kept somewhere.

Mr Landers asked whether a copy would have to be kept of the body sample as well.

Mr Du Preez replied that that would probably be covered by the rules and regulations of the procedure.

The Chair proposed that the clause prescribe what precisely the body samples would be, seeing that there were different methods that could be used. Perhaps 36(1)(a) should be amended to read “take two prescribed body specimens”, because that acknowledged that the methods could change over time. Furthermore, 36(1)(d) must be amended to include the phrase “keep a sealed record of the test results in a prescribed manner”. She stated that such systems of recording were surely already in place.

Mr Bassett responded that he would have to check on that. He reported that the medical practitioners themselves had indicated in their submission that they were not in favour of the kind of formulation to 36(1)(a) proposed by the Chairperson.

The Chair reiterated her view that the clause must prescribe the methods to be used, as that would create certainty around the kind of sample used. That certainty would also avoid any court challenges the offender could lodge against the manner in which a specific specimen was procured, and its effect on the right to privacy and so forth. She requested that it should be included.

She reiterated her proposal for a catch all provision as the end of the clause, which the Department must consider further.

Clause 41: Offences and penalties
Mr Du Preez read through the clause.

The Chair stated that it surely could not be the case that any person who laid a charge unsuccessfully would be guilty of malicious intent. She informed Members that many of the submissions received argued that the clause opened the victim to further victimisation if the charge was not successful. The test was however set reasonably high because it would first have to be proved that the person’s only motive in laying the charge was to find out the HIV test results of the offender. Another motive would amount to malicious intent.

Mr S Swart (ACDP) stated that the phrase “avoids to comply with“ in 41(2) was awkward, should be replaced with “avoids compliance with”.

Mr Bassett agreed.

Mr Swart stated that it would probably amount to malicious intent if a person laid a charge under Clause 33, got the HIV test results of the offender, but then dropped the charges.

Mr Bassett agreed

The Chair suggested that a provision must be added which made it clear that if the person laid a charge but did not lodge an application under Clause 33, and that charge was then dropped, that that would not amount to malicious intent.

Mr Du Preez replied that he would reconsider that, especially the use of the word “or” after 41(1)(a)(i).

The Chair stated that that ‘or’ must surely be replaced with ‘and’ to make it clear that if the person laid a charge but did not lodge an application under Clause 33, and that charge was then dropped, that that would not amount to malicious intent

Clause 42: Regulations
Mr Du Preez read through the clause.

The Chair noted that the clause was broad enough and covered everything that needed regulation. She proposed the inclusion of a reference to ‘prescribed specimens’, as mentioned earlier. She noted that the prescribed form must be readily available at every police station.

Chapter 6: National Register for sex offenders.
Clause 43: Prohibition on 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
Mr Du Preez read through the clause.

Ms S Camerer (DA) expressed her disfavour with having two separate registers on the same matter: one in the Children’s Act and one in this Bill. The same point had been raised in the public submissions. She requested that Members be provided with a copy of the provisions of the register in the Children’s Act in order to gauge whether there were any gaps that needed to be filled in the register contained in this Bill.

The Chair agreed. She reminded Members that the Children’s Act had already been passed into law, but it had not yet come into operation. The reality was that there might thus very well be many provisions in that Act that might not be implementable. Secondly, the register in the Children’s Act was far more broad than the register in this Bill. She firmly believed that there was a need for the Bill to establish a register as soon as possible, because it could very well take a long time for the more comprehensive register in the Children’s Act to be implemented and start running, if this happened at all. She would prefer to have the register included, even if it were to be used as a learning curve, than to leave it out in the hope of a register in the Children’s Act, which might never happen. It must be remembered that the register in this Bill was not a “naming and shaming register”, unlike that in the Children’s Act.

Secondly, the provisions in the clause related to the employee/employer relationship, but it did not appear to cover someone who wanted to apply for a licence to run a playgroup from their home. She suspected that the wording of the provision might be wide enough to accommodate that, but proposed that it be clarified to ensure certainty. The provision must specifically stipulate that the licensing authority must apply to the Registrar, to check whether the owner of the playgroup was on the register.

The Chair stated that it was very important that the principle - that no person convicted of a sexual offence against a child will be allowed to work with children or gain access to them - be entrenched regardless of the register. The current record-keeping system must be updated and upgraded to record the specific sexual offence committed, and that it was committed against a child. At the moment it was not specific at all. The limiting factor should not be whether the name was on the register or not, but the overarching principle mentioned before. Thus the register should really only become the mechanism through which employers checked the credentials of prospective employees. The ousting mechanism should thus rather be the overarching principle, not whether the person’s name appeared on the register or not. She thus proposed the deletion of the phrase “and whose particulars have been included in the Register,” in 43(1), because its inclusion was a limiting factor.

Mr Bassett agreed. He stated that he would also have another look at the wording of 43(2), because it was formulated very awkwardly.

The Chair agreed. She proposed the removal of the phrase ‘or any person may not,’ in 43(2), as well as the deletion of the comma after ‘children to’. She stated that 43(2) should perhaps be divided into subsections, to make it clear what exactly would be disallowed.

She agreed with the formulation and objectives of Clause 43(3). The provision must however be amended also to criminalise the failure by an existing employee, who had such a conviction and was currently working with children, to disclose that conviction to his employer. That should appear as a separate provision. Furthermore, 43(4) should actually be 43(5), and the current 43(5) should be moved up to the new 43(4). She stated that the provision read better that way because it grouped all the sanctions together. The current 43(4) would then appear as the last provision in the clause.

Mr Potgieter disagreed. He stated that 43(5) was not a sanction.

The Chair held a differing view, asserting that a failure by the employer to immediately terminate the offender’s contract of employment must be criminalised.

Secondly, she proposed the removal of the words ‘did not or’ from 43(5), because it made no sense.

Mr Bassett agreed.

The Chair mentioned two scenarios that were not currently covered by 43(4), which must be included. The first related to a person convicted of a sexual offence against a child, who failed to disclose that conviction to their employer, who was employed owing to that non-disclosure, but who did not commit any sexual offences against children during the period of his employment. The employer in these circumstances must be able to terminate the contract of employment immediately upon finding out about the conviction.

The second scenario was similar to the first, except that the employee now committed a further sexual offence against a child during the period of his employment. In that case too the employer must be able to terminate the contract of employment with immediate effect. In both cases the Bill must impose a sanction on the employer for failing to terminate the contracts of employment. Clause 43(4) should be worded to cover both situations outlined above.

The Chair stated that the Bill might have to include specific reference to contractors as well, as they did not fall under the definition of employee.

Furthermore, the Committee might have to consider the role of the municipalities that granted the licences to such employers, or to other institutions such as private schools, businesses and close corporations. The Minister of Justice must also be allowed to regulate other categories that the Committee might not have thought about in the legislation, such as trade licences.

Ms Camerer sought clarity on the manner in which the Bill would regulate a situation where a woman might run a day care service from her home, and her husband had been convicted of committing a sexual offence against a child. The question was whether the Bill currently placed a duty on the wife to disclose that to the licensing authority. The complicating factors were that the woman herself, as owner of the day care, was not the one guilty of the offence, nor was her husband an employee. However, he would be in the house and would have free and easy access to the children.

Mr Landers stated that that was an interesting scenario, and must be covered in the Bill as it was a real possibility.

The Chair agreed that a clause must be included in the Bill which placed an obligation on the wife to ensure that whoever had access to the children under her supervision and care had not received such a conviction. She encouraged the Committee to think very carefully about the matter because the provision could not be formulated in too strict a fashion, as it could be challenged on the grounds of violating Section 22 of the Constitution.

She surmised that every municipality would have duties of care and conditions for the granting of licences to playgroups etc., which would be attached to the licence and which would be withdrawn when contravened. In reality the mechanism would not prevent every form of child abuse, but it did represent the best that could be done at the moment. It was hoped that over time the mechanism would develop and that the regulation of recognised categories of businesses would evolve. The municipalities would also have to enact this provision, and their by-laws would develop over time.

She stated that she believed the formulation in the Bill was broad enough to cover the scenario sketched by Ms Camerer, but suggested that the Committee must consider the matter further. The provision was broad enough to require the employer at a cleaning service to check with the Registrar whether his employee (who would be responsible for cleaning a park) was listed on the register. She was thus confident that it was broad enough to cover the convicted husband scenario.

Clause 44: Establishment of National Register for Sex Offenders and designation of Registrar of Register
Mr Du Preez read through the clause, and added that the definitions in Clause 30 stipulated that ‘Minister’ in this chapter meant the Minister of Justice.

Clause 45: Objects of Register
Mr Du Preez read through the clause.

The Chair noted that no questions were raised on the clause.

Clause 46: Contents of Register
Mr Du Preez read through the clause.

The Chair asked whether ‘any other legal source’ in 46(c) included organisations such as Interpol.

Mr Du Preez answered in the affirmative.

Mr Landers was of the view that, despite the catch-all provision in 46(b)(vi), Clause 46 must nevertheless include a reference to the fingerprints and DNA of the offender.

The Chair stated that that would prove rather difficult because the offender would not provide those specimens in front of the Registrar. Instead, the Registrar would obtain the information and data referred to in the clause from other authorities, such as SAPS and the Department of Correctional Services (DCS).

The important issue was that the register must contain sufficient information about the offender to properly identify them, so that the clearance certificate could be either granted or refused on valid grounds. Perhaps the provision could require a photograph of the offender as well. However, she was not sure whether the provision could go so far as to include a DNA sample. She requested the Department to inform the Committee of the requirements in the prescribed form. The Committee would then consider the matter further, bearing in mind what would be practical for the Registrar to secure.

Mr Du Preez agreed to check the exact requirements in the prescribed form.

Mr Bassett proposed the inclusion of a drivers licence, where applicable.

The Chair agreed. The provision must place an obligation on persons to provide as much information to the Registrar as possible.

Clause 47: Persons whose names must be included in Register and related matters
Mr Du Preez read through 47(1).

Mr Landers stated that the prescribed form would now have to be amended to include the information listed in Clause 46.

Ms Delene Clarke(South African Law Commission) informed Members that the prescribed form was the SAP69.

The Chair requested the Department to check the information currently listed on that form. SAPS would have to provide the Registrar with its records of persons with previous convictions for offences committed against children, and DCS must provide information on those currently serving sentences for those offences. SAPS and DCS might very well provide overlapping information.

Ms Camerer asked how exactly the Registrar would be expected to know of the child sex offenders listed on registers in foreign systems.

The Chair stated that the Registrar would have to contact those foreign agencies, such as Interpol and the FBI, and enter into mutual cooperative agreements for future dealings. The mechanism and practice would develop over time. She reiterated her earlier statement that the mechanism would not provide the solution for every single scenario and offender, but it was a starting point that would develop into a very important and effective protective measure. Not every country currently had a register for child offenders, nor even a mechanism that recorded that kind of information.

The Chair announced that the Committee would resume its deliberations from Clause 47(2) on the following day.

The meeting was adjourned.

 

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