Criminal Law (Sexual Offences) Amendment Bill: briefing on Clauses 54 to 61

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
22 August 2006
CRIMINAL LAW (SEXUAL OFFENCES AND RELATED MATTERS) AMENDMENT BILL

Chairperson: Ms F Chohan-Kota (ANC)

Documents handed out:
Institute for Child Witness Research and Trining: Submissions on Sexual Offences Bill

SUMMARY
The Department of Justice continued to describe the clauses of the Bill, from Clause 54 to Clause 61. The Chairperson requested amendments in the wording only of Clause 57(2), where the wording should be more specific in regard to the time frames; of Clause 58(4), where the wording in respect of the designation of acting chairperson should be tightened to specify either that the Deputy Chairperson was an ad hoc appointment, or that the members could appoint any member to act as Chairperson; of Clause 59(1), to clarify that the meetings referred to in that clause should be held at least twice a year. She requested that Clause 61(3) be amended by addition of references to HIV testing, and that a general provision be included, either in the main body of the clause, or by being specified under each subclause in respect of each Department, that public directives must be given for all matters which are reasonably necessary in terms of this legislation relating to the entire investigation and prosecution of sexual offences. She also requested that social context training and provisions relating to HIV testing be provided for in Clause 61(1), (2) and (3), which detailed directives to be published by the various Departments.

The Chairperson also requested the Department of Justice’s drafters to consider and report back upon some further questions of principle. The wording of Clause 56 reflected the wording of Section 35 of the Corrupt Activities Act No 12 of 2004, with some exceptions. The Chairperson therefore requested that a copy of Section 35 be provided to the Committee, that the case law on this section be extracted, and that a similar provision to section 35(2) should be considered for insertion in Clause 56. Furthermore, this clause should also be amended to include reference to offences under this legislation other than sexual offences, such as misusing information on tests, breaching confidence and so on. Secondly, she asked the drafters to re-think all of the time frames in Clauses 57 to 60, and include timeframes for each step of the process. The timeframes of Clause 61 also needed to be re-examined.

The Chairperson then asked members of the Committee to consider whether they wished to specify the areas in which a unified and co-ordinated approach should take place in terms of Clause 57(1). They should also consider whether it was necessary to provide that all Ministers should have at least one meeting a year, in Clause 59(1). They should also consider whether Clause 61 needed to include provisions relating to the confidentiality of testing, if these were not to be included rather in Clause 2. Members were also asked to think about what action might be desirable once the Chairperson had obtained a report on the South African Police Service laboratories, if indeed it seemed that extra laboratories were needed. Finally, the Chairperson pointed out that the efficacy of the legislation was dependent upon the national instructions and directives, coupled with the necessary training, and that Members should consider carefully the implications of the provisions in terms of implementation, enforcement and training.

Lastly the Chairperson asked the Department to note that the Schedule to the Bill would have to contain a provision amending the Criminal Procedure Act to direct that a Magistrate refusing a special application contemplated by Clause 61, such as an application for a witness to give evidence by closed circuit television, would be obliged to furnish reasons.

MINUTES
Committee Announcements
The Chairperson noted the apologies of Ms Johnson, Ms Camerer and Mr Joubert, who were attending an ad hoc Committee meeting. She also noted that Ms Meruti was attending a training course.

The Chairperson announced that the Committee would continue to discuss the Bill on 23 August, from 10:00 am in S35, and, depending on progress, might not need to use the time allocated on Friday 25 August. A meeting had been arranged at the request of a delegation of female lawyers and businesswomen from the Democratic Republic of Congo for 2:00 pm on Wednesday 23 August in S35.

Deliberations on Criminal Law (Sexual Offences and Related Matters) Amendment Bill
Mr Henk du Preez (Senior State Law Advisor: Department of Justice) continued to guide members through the provisions of the Bill.

Clause 54: Evidence of previous consistent statements
Mr du Preez stated that there was a common law rule against self-corroboration, preventing the admission of statements made by a witness prior to giving evidence. An exception related to a complainant in a sexual offences case making a statement soon after the offence had occurred. In practice, if there was no such statement at the first available opportunity, the Defence would suggest that the complainant was not a credible witness. The South African Law Reform Commission (SALRC) had recommended that evidence of previously consistent statements should form part of the bundle, and that the Court should not draw a negative inference simply by reason of the fact that there was no previous consistent statement. This was now set out in the Bill.

In answer to a question from the Chairperson seeking clarity, Mr du Preez explained that this clause would only apply to sexual offences but its effect was to make the broad law more consistent. In the past the Court would have been able to draw a negative inference from the lack of a previous statement in sexual offences.

Clause 55: Evidence of delay in reporting
Mr du Preez reported that the effect of this clause was similar to Clause 54 and it was included for the same reasons. The Court could no longer draw an adverse inference only from the length of the delay in reporting.

Clause 56: Extra territorial jurisdiction
Mr du Preez read out the clause and reported that this clause reflected, almost word for word, the provisions of Section 35 of the Corrupt Activities Act No 12 of 2004, which dealt with extra-territorial jurisdiction. There was decided case law on this section.

Mr Lawrence Bassett (Chief Director, Legislation: Department of Justice) also indicated that the wording was similar to the Rome Statute.

Mr du Preez pointed out that there was one subsection that was not reflected in this Clause. Section 35(2) of the Corrupt Activities Act referred to a South African connection in broad terms, and he suggested that it might be necessary for the drafters to look again at Clause 56(2) to check whether similar wording should be inserted.

The Chairperson asked that the Committee be provided with copies of Section 35, as she thought it likely that it should be incorporated. It was possible that certain offences in this legislation might not be regarded as offences in another country, such as trafficking and the newly created crimes like compelled rape or compelled self-violation. She was certain that the Courts would regard these crimes as serious enough to warrant prosecution wherever they were committed, and to warrant prosecution of non-residents committing the crimes locally.

Mr du Preez added that the Corrupt Activities Act was not based on double criminality. The drafters felt that the lack of double criminality was implicit in the current wording.

The Chairperson did not find it implicit. She suggested that since the references to a South African connection were not present, the double criminality principle should be stated explicitly in this clause. Extra territorial jurisdiction was a vital component, especially to combat trafficking and paedophile crimes, so it was necessary to ensure that South Africa did not become a “safe haven”. Unlike the Corrupt Activities Act, there would not necessarily be a monetary effect or benefit. She asked the drafters to frame the clause so that it was not too broad.

The Chairperson also asked the drafters to inform the Committee of judicial decisions on Section 35.

The Chairperson asked if companies and businesses would fall under the grooming provisions in the Bill. She supposed that service providers could also put “pop-ups” on websites containing pornography.

Mr du Preez confirmed that they would fall under this, and also could fall within the sex tourism provisions.

The Chairperson reminded the drafters that it was still necessary to give consideration to grooming clauses that might be under some other category.

Mr Bassett also noted that companies could also be involved in breaching confidentiality or some other provisions relating to the Register.

The Chairperson indicated that this referred only to sexual offences crimes, and therefore she did not think this would be covered. Mr Bassett, on reconsideration, agreed that she was correct.

The Chairperson asked the drafters to consider whether this clause should also extend the extra-territorial jurisdiction to the crimes relating to the Register.

Clause 57: National Policy Framework
The Chairperson did not consider the wording of Clause 57(2)(c) specific enough. She suggested that the wording be amended to make it quite clear that once the policy framework had been adopted, the Minister must review it on a five-yearly basis. She asked the drafters to ensure that there was absolutely no ambiguity in this clause.

Mr du Preez pointed out that the clause referred in broad terms to a coordinated approach by all relevant Departments, but did not actually spell out the spheres or areas where this must occur.

The Chairperson responded that she personally liked the style of drafting and thought that the wording was broad enough to encapsulate everything. She cautioned that in attempting to define something could be left out. However, she asked members of the Committee to consider whether they would prefer the areas to be specified.

Clause 58: Establishment of Inter-sectoral Committee
Clause 58(2) and (3)
Mr G Magwanishe (ANC) felt that several points in this clause were ambiguous. As a general comment, he felt that the National Commissioner or the Director Generals named could delegate their powers to other officials who would not have the power to make decisions. He felt that it should be specified that no alternates should be allowed, and that only those named should attend.

The Chairperson noted Mr Magwanishe’s comment but indicated that she would prefer the wording to remain, as she would prefer to have representatives rather than nobody present from a sector at all. She felt that it would be sufficient for the Portfolio Committee to send a strong message that they must attend the meetings and that a dim view would be taken of their failure to do so.

The Chairperson added that she did not believe it was possible to deal with these concerns by way of legislation. If members of the inter-sectoral Committee did not give sufficient input or contribution, then this would be a matter for the Portfolio Committee to address.

Mr S Swart (ACDP) would welcome the Committee’s consideration of the framework, as it would be most important to determine what action could be taken where Departments did not comply. He believed it was vital to establish protocols for buy-in.

The Chairperson stated that the value of the framework needed to be quite clear so that the contributions of each Department could actually be tested. She indicated that the special Sexual Offences Courts had worked well because there was far more cohesion in the sector, resulting in a higher conviction rate. Best practices did not always need to be legislated. They already existed in several spheres, and the value of the national policy framework would be that the best practices were further developed.

Clause 58(4)
Mr Magwanishe asked if, in the absence of the Chairperson or Deputy Chairperson, the Committee should not specifically be given the power to appoint another member as Acting Chairperson.

The Chairperson thought that the clause was already clear.

Mr L Landers (ANC) pointed out that it depended upon whether the Deputy Chairperson appointment was permanent or ad hoc.

The Chairperson took Mr Lander’s point and asked the drafters to consider adding wording to the effect that if neither the Chairperson or Deputy Chairperson was available a further person could be designated by the Committee. She pointed out that there was no harm in having this wording included although in practice it was unlikely that the Chairperson would be unable to attend as the Chairperson was responsible for convening the meeting, as set out in Clause 59(1).

Clause 59: Meetings of Committee
Mr du Preez asked for some guidance from the Portfolio Committee whether it was desirable to specify that the inter-sectoral Committee report to the Minister after each meeting. Clause 60(2) stated that the Committee “may” make recommendations to the Minister on amendments to the national policy framework.

The Chairperson believed it was more important to specify that the inter-sectoral committee must meet at least twice a year. Once the national policy framework was in place it should not be necessary for the inter-sectoral committee to meet too often. It would merely need to discuss difficulties of implementation, and review the policy framework after five years.

The Chairperson therefore asked the drafters to insert wording requiring a meeting twice a year, for further consideration by members.

Clause 60: Responsibility, functions and duties of Committee
Imam G Solomon (ANC) indicated that Clause 60(3) required the Minister of Justice to submit annual reports to Parliament, framed by each department or institution named in Clause 58. He wondered if there should not be a sanction if they failed to respond.

The Chairperson replied that the department or institution would in that case have to explain to Parliament why it had not complied with the legislation. The portfolio committees were vested with oversight in order to ensure compliance with the law, both in spirit and letter. This was a mechanism to ensure that the protocols were properly implemented at the level where people would understand them. The drawing of directives and guidelines was the main issue in the legislation; the practical application would be found in directives.

Imam Solomon indicated that since the clause required a report by the Minister of Justice, there perhaps needed to be a provision included that all Departments should meet once per year. He was not sure why the Minister of Justice should be responsible for reporting on the work of all the Departments.

The Chairperson replied that a single structure was envisaged, and Clause 57(1) made it clear that all Ministers were consulted. A requirement that each Department respond separately would nullify the objective of an integrated approach. A co operative rather than disjunctive mechanism was needed.

Imam Solomon agreed, and clarified that he was not suggesting that each Department submit a separate report, but that they must have a responsibility to meet in order to report once a year.

The Chairperson was not opposed to this suggestion and asked members to consider it. She wondered what the sanction would be if they failed to meet.

Mr Landers pointed out that the clause referred to “reports” and he felt that in practice the Minister of Justice would have to ask each Department to submit a report.

The Chairperson thought that the inter-sectoral Committee would need to meet themselves, in order to draft the annual reports that they would submit to the Minister of Justice, who would then table those reports in Parliament. The reports would contain the details set out in Clause 60(1)(a) to (d), and would be of an operational rather than a policy nature. The Ministers would have held the main meetings to discuss the policy at an earlier stage and this Clause was concerned with the implementation by the inter-sectoral committee.

Mr Landers agreed that this was so, but still thought that the wording should be clarified. He asked what would happen if no report was submitted.

The Chairperson responded that the inter-sectoral Committee would then be called before a Parliamentary Committee. She did not believe it was for the Minister of Justice to impose an annual report requirement on each Department; each report would derive from the participation in the inter-sectoral process and each Department must be held accountable to produce the report.

Mr Landers warned that sometimes Departments would only willingly appear before “their own” Committee – it might be that SAPS would not account to the Justice Portfolio Committee, but only to the Safety and Security Portfolio Committee. He cautioned that this Committee should not cause offence to other committees.

The Chairperson did not share Mr Lander’s concerns. Portfolio Committees had often sat jointly and she did not anticipate problems. However, she would like to see more specific time frames set out at each stage of the process.

The Chairperson asked Mr Bassett and Mr du Preez to give advice to the Committee on what exactly would happen at what stage of the process. She asked for time frames to be specified at each stage, which would involve amendments to Clauses 57 to 61. She also suggested that perhaps the wording of Clause 60(3) could read along the lines that the Minister, after consultation with his counterparts, must submit the reports, rather than specifying that a meeting must be called.

Clause 61: National instructions and directives
The Chairperson reported that this clause contained the essence of how victims must be treated. The clause aimed to construct a mechanism against which the behaviour of all those involved in the reporting, investigation and prosecution would be tested. Norms and standards would be created relating to sensitivity in handling the matters, assistance in receiving both information on and access to services, and timeous referral to remedies available. Many male victims of rape had complained that they were not treated in a sensitive manner and their complaints taken seriously. If, for instance, a police officer now failed to comply with the standards set, this would become a disciplinary issue.

Mr Bassett reminded the Committee that when discussing the confidentiality of the HIV test under Clause 36 it had been suggested that directives on confidentiality should possibly also be inserted in Clause 61, if not included in Clause 36. Therefore there would be amendments along those lines.

The Chairperson said that this was so, but that the Committee also needed to consider Clause 2 in detail, in particular whether the objects of the Act should include confidential issues. It might be that Clause 2 would be extended; if not, then the provisions would be added in to Clause 61. This would apply also to the National Directorate of Public Prosecutions. It was probably preferable to include this in Clause 2 to capture the letter and spirit of the legislation.

Clause 61(1)
Imam Solomon stated that this clause clearly set out the involvement of all Ministers. He believed that a provision should also be inserted in Clause 61(1) that the Ministers must meet once per year.

The Chairperson did not agree. She stated that the Minister must clearly be consulted in order to table the reports. However the norms and standards set out here were the responsibility of the National Commissioner of SAPS and the Directors General. The National Commissioner of the SAPS would obviously consult with the Minister of Justice and all other role players. The issue of accountability had not been left open. The Minister was not involved at the implementation level. The Chairperson understood Imam Solomon’s concern, but warned that the legislation should not be over-bureaucratised.

The Chairperson pointed out that even after the policy formulation and the drawing of national instructions and directives, there would have to be a substantial training programme, which would no doubt take a few years to implement fully. The Committees would have to work in synergy. If there were problems in a particular area or province this would be taken up by the Directors General. The portfolio committee would have to hold the mechanism accountable in terms of timeframes and workability.

Clause 61(2)
Mr Landers asked for details on the current state of rollout of closed circuit televisions in courts.

The Chairperson replied that the majority of courts were now equipped with closed circuit televisions. A large part of the budget this year was redirected into the project and soon all courts would be properly equipped. She further reported that the programmes on witness support, which were not in fact provided for in any legislation, were functioning well, with about 50 000 people having been assisted through the system. Processes that were not contained in legislation were operating, and it was hoped that the Regional Courts would learn lessons from the special Sexual Offences courts.

However, on the issue of closed circuit televisions, the Chairperson pointed out that many of the public submissions had indicated that the courts were often reluctant to approve applications by prosecutors, where the victims were older than 12, that the closed circuit television be used. She felt that an instruction should be given by the Director of Public Prosecutions to the prosecuting authorities that evidence must be put before the courts in support of applications. Often no applications were even made, simply because of the practical problems in trying to get through the court roll, which meant that the prosecutors were reluctant to get involved in interlocutory applications.

Therefore the Chairperson suggested that where an interlocutory application was made, and refused, the presiding officer must be obliged to furnish reasons for the refusal. This would require an amendment to section 74 of the Criminal Procedure Act. She thought that this could be dealt with in the Schedule to this Bill, and asked that the drafters flag this point and raise it again when considering the Schedules.

Clause 61(3), also to include certain provisions of Clause 61(1) and (2)
The Chairperson asked where the HIV testing provisions stood. She thought that these should be specifically mentioned in detailing the responsibilities of the Director General: Health under this clause, and should also be included if applicable for the National Commissioner of SAPS and the National Director of Public Prosecutions.

Mr Bassett confirmed that this provision was not included and that the drafters would amend this provision accordingly.

Mr Bassett also indicated that social context training was not included.

The Chairperson requested that this also must be included.

The Chairperson asked if there was any necessity to deal, in this Clause, with forensic testing.

Mr Bassett replied that that would be the responsibility of SAPS as it fell under general investigations.

The Chairperson asked if it was adequately covered by “the manner in which sexual offences cases are to be investigated (Clause 61(1)(a)(ii). She queried whether the forensic laboratories fell under the control of SAPS or the Department of Health.

Mr du Preez confirmed that they would remain with SAPS as they were concerned with evidence.

Ms Dellene Clark (Researcher, South African Law Commission) confirmed that SAPS would provide a rape kit to the medical officer at a designated facility. The sample would be taken, sealed and labelled in the prescribed manner, and would be sent to the SAPS forensic laboratories. She thought that because of the backlogs and delay some tests were being done at private laboratories.

The Chairperson considered that although it was probably not necessary to be more specific it was desirable to state a broad policy in Clause 61(1) to state that directives should be published on all matters that were reasonably necessary to be provided for in terms of this legislation, and generally the investigation and prosecution of sexual offences crimes.

Mr Landers asked whether SAPS laboratories existed countrywide.

Ms Clark thought that there were two. There was certainly one in Pretoria.

The Chairperson also mentioned that consideration needed to be given to including policy directives that a medical officer be on call at all times to take samples.

Mr Landers felt that this Committee must take up in some way the inadequacy of the SAPS laboratory service. He felt that all the work done to establish policies would be meaningless if there were not laboratories equipped to provide speedy results in all major centres.

Mr Swart agreed, and asked if this Committee should not raise the issue with the relevant departments.

The Chairperson pointed out that this Committee could not give an instruction that more laboratories be built; its oversight function extended only to questioning whether the systems were working.

Mr Swart was worried that a problem in the system could open the way to a defence on a charge.

The Chairperson pointed out that a defence could not be raised on a procedural matter. The directives were meant to establish a mechanism. A prosecutor who did not follow directives, such as expediting cases where a child was involved, perhaps so much that the child could no longer remember the incident, would not have created a defence. That behaviour would form the subject of an internal disciplinary enquiry. It would, of course, be different if a sample had been tampered with, as this would go to the substance of the evidence led.

Mr Swart cautioned that the Committee would need to consider the directives very carefully to ensure that they did not open the way to unintended consequences.

Mr Landers again raised the specific issue of the laboratories as he foresaw there would be problems.

The Chairperson stated that information on the laboratories could be obtained, but asked what end this would serve.

Mr Landers believed that a process should be put in place now to address problems that would worsen.

The Chairperson indicated that the National Directorate of Public Prosecutions had performed an accreditation of sexual offences matters and this would probably indicate if there was a problem. She confirmed that she would ask for the report and distribute it to members. A further discussion could be held, if necessary, both within this Portfolio Committee and with other relevant committees.

Clause 61(4) and (5)
The Chairperson asked why the provision of six months was inserted here, as the inter-sectoral committee was given a period of one year to develop the national policy framework. This provision would mean that the directives should be done prior to the framework.

Mr du Preez agreed that this was so, because it was considered important to set up directives as soon as possible as these would influence the prosecution of the cases. The monitoring would be a longer process. It might be that further directives were needed once the policy framework was in place.

The Chairperson asked that Clause 61(5)(b) be noted. Training courses were to be tabled, because of some of the problems that had arisen in the past.

The Chair noted that the effective implementation of the legislation would be dependent on the national instructions and directives. She urged members to give careful consideration to the implications of the legislation in terms of its implementation and enforcement.

The meeting was adjourned.