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JUSTICE PORTFOLIO COMMITTEE
25 October 2006
CRIMINAL LAW (SEXUAL OFFENCES) BILL: DELIBERATIONS
Chairperson: Ms F Chohan (ANC)
Documents handed out:
Working draft of Sexual Offences Bill as of 10 October 2006
Criminal Law (Sexual Offences) Bill [B50-2003]
National Register for Sex Offenders
The Committee considered and amended new draft provisions on the register. The following points were made by the Chairperson: A person's credentials should be checked in the register before he or she could be employed. One also had to deal with people who were already employed by the time this legislation comes into force. Such people would also have to be cleared. Prospective employees would be treated differently because they should be cleared before they could be employed. It was the employer's responsibility to ensure that the people were cleared. It did not help to say that the employee should get the certificate because this would not counter the possibility of fraud. People who were subject to court orders in terms of sections 77 and 78 of the Criminal Procedure Act would also be included in the register. Intentional failure to disclose convictions would mean that a person's details would not be able to be removed from the register.
The Committee continued with its discussions on the Bill. Mr H du Preez (Senior State Law Advisor, Department of Justice), Mr Lawrence Basset (Chief Director, Legislation: Department of Justice) and Ms D Clark (SALRC) attended the meeting. Mr Basset took the Committee through the Bill.
Clause 43 Definitions
Mr Basset said that the drafters had looked at the Protected Disclosure Act, No 26 of 2000 and borrowed the definitions of "employee" and "employer". The new chapter on the regulations was shorter than it was because a lot of definitions and provisions had fallen away. The drafters had also identified some glitches which they would explain as they deal with the relevant clauses.
Mr Basset said that the definition reflected what was in the Protective Disclosures Act.
The Chairperson noted that definition of "certificate" had changed by the addition of words "not older than three months".
Mr Basset said that paragraphs (a) and (b) of the definition were new and remaining part was taken from the existing definitions as contained in the Bill.
Ms Clark said that the definition did not specifically refer to foster parents.
The Chairperson asked if it would not be better to have a definition of 'foster parent'.
Mr Basset replied that the drafters had considered the issue raised by the Chairperson. This was one of the glitches that they had experienced. They had thought along the lines of saying that the provisions of this chapter in so far as they applied to an "employee" also applied to a foster parent.
The Chairperson said that not all provisions that applied to an employee would apply to a foster parent. Foster parents had to be cleared when the applied to foster a child.
Ms Camerer asked if the issue was not covered in other legislation.
The Chairperson replied that an employee was not similar to a foster parent. She said that the drafters should make a note on the issue and the Committee would come to it at a later stage.
Mr Basset indicated that there was a footnote that already indicated that the matter should be revisited.
The Chairperson asked what was meant by the statement "agent or person rendering services to a client while being employed by a temporary employment service"
Ms Clark replied that this, for instance cover situations where in a security officer was placed at a school by a temporary employment service.
The Chairperson had a problem with the statement. She felt that intention was to say that "any person who had applied to be a temporary employee". The person might not be posted at the school on a particular day. The words "rendering a service" implied that the definition would only apply when a person was posted at a particular school. The words "rendering services to a client while being" should be deleted.
Ms S Camerer (DA) suggested that the word "and" should be inserted between paragraphs (a) and (b).
Ms Basset suggested that the word "or" should be added between paragraphs (a) and (b). The Committee agreed.
Imam G Solomon (ANC) said that it was odd that the definition referred to "any person who applies to work".
Mr Basset said that sometimes one had to extend the ordinary meaning of word and this was something that the drafters loathe to do.
The Chairperson said that the same would apply to foster parent. One was targeting people who were still going to apply. This was a safety net and one did not want people to be employed first. A person's credentials should be checked before he or she could be employed. The limitation was that only the credentials of persons who would work with children would be checked. One also had to deal with people who were already employed by the time this legislation comes into force. Such people would also have to be cleared. Prospective employees would be treated differently because they should be cleared before they could be employed.
Mr Basset said that there were question marks and square brackets in paragraph (a) because the Committee had requested that the persons listed therein should be added. The question was whether it was necessary to specifically refer to them in light of the new proposed definition. This definition was also based on the Protected Disclosures Act and parts of it were based on the current version of the Bill.
Ms Camerer said that people who were responsible for approving the ownership, management or operation of any entity or business concern were not really employing people.
Mr Basset said that the drafters had also identified the problem. Paragraph (b)(ii) was supposed to refer to the person who granted licences. The definition should be revisited.
The Chairperson asked if it was always an organ of State that granted licences.
Ms Clark replied that the granting of membership of association would not necessarily be done by an organ of State.
The Chairperson asked how the granting of membership of an association was related to the protection of children.
Ms Clark attempted to respond to the question by using an example of an organisation that supplied services to a school.
The Chairperson interjected and said that the school would be responsible for clearing the people. It was the employer's responsibility to ensure that the people were cleared. It did not help to say that the employee should get the certificate because this would not counter the possibility of fraud. One still wanted the obligation to be on the school.
Ms Clark said that the association should be responsible for people associated to it.
The Chairperson said that nothing stopped them from doing so. The question was where the legal responsibility was placed. The school and not the association or sub-contractor should have the obligation. The obligations should be at the level of the employer. The word "trade" should be added after "business concern" in sub-paragraph (ii). Sub-paragraph (ii) should also refer to "licensing". The brackets and question marks should be removed.
"organ of state"
Mr Basset said that the definition was copied from the Protected Disclosures Act and was also used in other legislation.
The Chairperson said that this definition was not part of the current draft of the Bill.
Mr Basset said that the word was only used in the definition of "employer". This was why some words were put in brackets in paragraphs (a) of the definition of "employer".
The Chairperson said that the definition should incorporate the last paragraph of the definition of "employer" (from the words "which, in any manner whatsoever" to "corresponding meaning". It should also refer to the licensing or approval of ownership, management or operation of any entity, business concern or trade.
She asked whether volunteers were covered. She thought that they were covered under the definition of "employee". She also asked why paragraph (b) of the definition of "employer" referred to "club, sports club, association or body".
Mr Basset replied that these words were used somewhere in this Chapter. It was not really necessary to include them in the definition.
The Chairperson said that the word "or" should be added between paragraphs (b) (iii) and (iv) of the definition of "employer". The last paragraph of the definition should read "who or which in any manner whatsoever".
Mr Basset said that clause 46(2)(a) gave the Minister the power to prescribe, by regulation, any category of employees to whom this Chapter would apply in the case of uncertainty.
Ms Camerer said that there would be no certainty. The Minister could go and do whatever he or she wanted to do. It was not the ideal situation. Not everybody read the government gazette.
The Chairperson said that there would have to be a problem first and the registrar would have to inform relevant people of the regulations or prescription.
Ms Camerer asked if there would be regular reports. Mr Basset agreed.
Clause 44 Establishment of National Register for Sex offenders and designation of registrar of register
Mr Basset said that this clause also dealt with people who subject to court orders in terms of sections 77 and 78 of the Criminal Procedure Act (CPA) and not just convicted offenders.
The Chairperson asked where paragraph (b)(ii) came from.
Mr Basset replied that it was part of the original provisions of the Bill. He referred the Committee to clause 49(1)(e)(ii) that dealt with people who had been convicted in a foreign court.
The Chairperson was worried about the period of six months referred to sub-clause (b). She wondered if it was necessary to refer to "within six months after the commencement of this Chapter". This clause was about the establishment of the register. There should be a separate clause on the contents of the register.
Clause 45 Object of register
Mr Basset said that the clause was amended by adding reference to sections 77 of the CPA.
The Chairperson said that the clause should refer to sections 77(6) or 78(6) of the CPA.
Mr Basset indicated that there was a typing error in the clause. It should read "section 77(6) or 78(6).
The Chairperson said that the object of the register was to protect children.
Mr Basset said that this object was already included right at the beginning of the clause.
The Chairperson said that it should refer to the protection of children against potential sexual offence or abuse. Paragraph (b) should be about informing employers whether or not the particulars of an employee were contained in the register.
Ms Clark said that employee could also apply for access to the register.
The Chairperson said that this clause was not about access but the objects of the register. The issue of who could apply for a certificate would be addressed at a later stage.
Obligations of employers in respect of employee who have been convicted of sexual offences against children
Mr Basset said that this clause separated the obligations of employers in relation to current employees and potential employees.
The Chairperson said that a full stop should be added in paragraphs 1(a) and (b) after the words "recorded in the register". This clause was related to sections 77(6) and 78(6) and not everybody would have been convicted. These sections dealt with outpatients. Sub-clause (2)(a) should empower the Minister to prescribe any "further categories" of employers to whom this Chapter would apply in the event of uncertainty. The words "apply in the case of any uncertainty" should be replaced by the words "shall apply".
Ms Camerer said that (3)(a) should provide that the employer should either transfer or dismiss the employee. The way it was currently drafted meant that the employer might or might not dismiss or transfer the employee. There was a need for clear directives. Sub-clause 3(a) applied to people who were already in employment. The Chairperson disagreed.
Ms Camerer tried to imagine circumstances that could result in the scenario in which a person who knew that his details were in the register would still go ahead and apply for a job.
The Chairperson said that such a case would arise in case where a school had placed an advertisement, interviewed and short listed people for a position. The shortlist would be taken to the registrar. The registrar would then inform the employer that the applicant was a child molester. The school would then say that it could not employ the applicant in terms of the law even if the applicant had the highest score. The applicant would not be able to sue the school.
Ms Camerer said that the situation outlined by the Chairperson was covered by paragraph (3)(d).
The Chairperson said that (d) would not apply to newly appointed people.
Ms Camerer said that there could be a situation wherein a person was employed and the employer finds out that the employee had committed a certain crime many years ago. Paragraph (d) would not apply. She asked if it should apply.
The Chairperson used an example of a case wherein an applicant had lied and was appointed to the position. One could also have a person who had been working for the employer for the last ten years and had committed a sexual offence last year. There was no real obligation that said that the employer should screen employees regularly. The Bill was putting an obligation on the employee to disclose the conviction. Failure to disclose the conviction would entitle the employer to immediately terminate the contract. A person who had disclosed the conviction could be transferred to another department or section of the employer's business.
Mr Basset said that any employer who had failed to comply with any provisions of this clause would be guilty of an offence and would be liable to a fine or imprisonment for a period not exceeding seven years. There was a concern raised as to what would happen if a Director General of a Department, for instance, had failed to comply with the clause.
The Chairperson said that everybody should comply with the law. The Bill dealt with very serious issues and one could not put obligations without imposing sanctions. An organ of State could be fined for not complying with the law. She was worried about single mothers who had hired a people to look after children. Such mothers would fall under the definition of employer. This sub-clause should be put in brackets for further consideration. People might want to rely on agencies to disclose any conviction of the people that they used.
Clause 47 Obligations of employees who are convicted of sexual offences against children
The Chairperson said that sub-clause (1) should be deleted. Sub-clause (2) placed a very important obligation.
Mr Basset said that sub-clause (5) could be misplaced because the clause was about obligations. Sub-clause (5) provided that an employee could also apply for a certificate stating whether his particulars were in the register.
The Chairperson said that the Committee should consider inserting a clause that would deal with could access the register. The clause should also indicate what kind of information should be disclosed in the certificate. The details about the offence were not really relevant. This was not a paedophile register where there would be naming and shaming of people. The important thing was to know if a person's particulars were in the register.
Mr Basset said that the regulations clause provided that the Minister could make regulations on the format of the certificate.
The Chairperson said that sub-clause (5) should be removed from this clause and incorporated under clause 44(3).
Clause 48 Contents of register
Mr Basset said that the clause was still the same except for the amendment in (b)(i). The Committee had requested that even the profession of the offender should be included in the register. Paragraph (b)(iv) referred to the prison identification number of the offender.
The Chairperson thought that there should be reference to sections 77(6) and 78(6) of the CPA. There should be reference to the medical institution which or the medical practitioner who had treated the person. Paragraph (c) should read "contain, as far as possible, the equivalent information". The words "where applicable" should be added in (b)(ii).
Clause 49 Persons whose names must be included in register and related matters
Mr Basset said the Committee had requested that the words "and who has not served a sentence of imprisonment" should be added in (1)(d). The words "has been convicted" in (1)(a) should read "is convicted".
The Chairperson said that (1)(d) was about suspended sentenced. The drafters had missed the category of people who had not yet been sentenced.
Mr L Joubert (DA) asked if a person’s particulars would be reported on conviction and or upon sentencing.
The Chairperson thought that they would be entered on conviction.
Mr Basset said that the details were entered after sentencing.
The Chairperson said that the problem might be that the conviction would not be under this legislation. The drafters should look on how to deal with people who had not yet been sentenced. The clause should refer to people who had been convicted in terms of this legislation or any other Act.
Mr Basset said that sub-clause (3) was amended following the Committee’s last discussions on the clause.
The Chairperson said that the provision should read "where possible, notify".
Ms Camerer said that the Committee was legislating for the inclusion of an offender’s details in the register. However, there was no clarity on where the registrar would get the information.
The Chairperson said that a person who had been convicted of the relevant offence should inform the registrar. The court would be required to make an order for the inclusion of the person’s particular in the register.
The Chairperson said that there should be a prescribed form for reporting a person’s particulars. Paragraph (7)(a) should also refer to other details contemplated in clause 48. The words "any such change" after "registrar of" should be deleted.
Clause 50 Removal of particulars from register
Mr Basset said that this clause was still the same save the amendment in (2)(c). The particulars of a person who had failed to disclose a conviction for a sexual offence against a child would not be removed from the register.
The Chairperson said that the issues were failing to disclose to the employer during the time when a person was working and when applying for a job. This was not a sanction but simply a non-removal of particulars. She thought that the Committee should go for sanction as opposed to mere non-removal. It might be necessary to revert to clause 46(1) of the previous draft.
Ms Clark asked if a person would be able to apply to have particulars removed from the register.
The Chairperson agreed but certain tests would have to be applied.
Mr du Preez said that the previous draft had both a sanction and the non-removal of particulars.
The Chairperson said that there could not be two sanctions for the same crime.
Mr Basset asked if (2)(c) should be deleted.
The Chairperson agreed and said that the sanction would have to be reintroduced for people who had not disclosed their convictions when applying or when already employed. The same sanction would apply.
Clause 51 Confidentiality
Mr Basset said that the only recent development was the addition of the words "with malicious intent" in sub-clause (2).
The Chairperson said that the words "which indicates that another person has a conviction for a sexual offence against a child" should be deleted. It was sometimes harmful just to say a person’s name was in the sexual offences register.
Imam G Solomon (ANC) asked who the person referred to in 51(2) was.
The Chairperson referred the Committee to clause 46 that dealt with applications by the employer. She felt that the words "with malicious intent and in a grossly negligent manner" should be included in 51(1). One problem with 51(1) was that it did not refer to the functions of the registrar.
Mr du Preez said that 51(1) possibly also dealt with employees of the departments of Health and Correctional Services when they forwarded information to the registrar. He felt that they should fall within the ambit of the clause.
The Chairperson asked if it would not be better to refer to the clause that imposed obligations of the staff of the departments. The drafters should find a way of referring to the registrar and staff and also have a generic clause that would deal with any other person. The "with malicious intent or in a grossly negligent manner" test should be included. She asked what test was applied in the previous draft.
Mr Basset replied that the previous draft referred to the words "wilfully and in a grossly negligent manner". The word "wilfully" implied a higher test and it should be proved that a person had the intention to disclose.
The Chairperson said that perhaps the test in relation to 51(1) should be wilful disclosure. She asked who would take the decision to prosecute following contraventions of the clause.
This test should apply in relation to private individuals. The "with malicious intent and in a grossly negligent manner" should apply to the public officials.
Mr Basset replied that there were no special arrangements in relation to the clause. He asked if 51(2) should refer to "wilfully and in a grossly negligent manner".
The Chairperson replied that it should simply refer to wilful disclosure. It was wrong for people to just go around talking about the inclusion of a person’s particulars in the register. She wondered if the court would interpret it as a two different test if the clause was to refer to "wilfully or with malicious intent".
Clause 52 Regulations pertaining to register
Mr Basset said that 52(1)(b) was amended so that it referred to clause 48(b)(i) to (vi). Paragraph (i) provided that the Minister should make regulations relating to the format of the certificate contemplated in clause 46.
The Chairperson said that paragraph (i) should refer to the format and content of the certificate.
Mr Basset said that (j) provided that the Minister could regulate persons who could apply for a certificate in terms of clause 47(5). This clause would be tied to the new clause that the Committee had suggested should be added on who might apply for a certificate. Paragraph (k) in the previous draft referred to an applicant and it had been changed to refer to "person".
The Chairperson asked Mr Basset to indicate provisions from the previous draft that had been left out in the new draft.
Mr Basset said that clauses 44, 45 and 46 were substantially still the same.
The Chairperson asked if the Committee should not keep clause 46(1) of the previous draft. There should be reference to obligations of foster parents. Adoption proceeding were not included because they were not court proceedings and the courts did the necessary checks.
Mr du Preez said that adoption proceeding were not included because one could not convict the court for allowing an adoption.
The Chairperson said that the possibility of convicting the court was not the issue. The issue was that the applicant should have brought a certificate when making the application for adoption. The Chairperson said that clause 46(1) of the previous draft should be included in the new draft. This clause should possibly be put even before the clause on the establishment of the register. The drafters should ensure that 1(b) was in all fours with new definitions. There should be a separate paragraph on foster care and adoptive parents. Such people should produce a certificate when applying for fostering or adopting children. She asked what a "kinship care-giver" was. Was this not a form of fostering?
Mr Basset replied that this was a new term in terms of the Children’s Act.
The Chairperson said that it should be included in the clause. The clause was mainly about disclosing convictions and not producing the certificate. The Committee should always bear sections 77(6) and 78(6) in mind when referring to a conviction. This was especially the case when dealing with an out patient. People should be allowed to simply say that their names were in the register instead of producing a certificate.
Ms Camerer agreed that the Bill should not insist of producing the certificate.
The Chairperson said that people should indicate that they had either been convicted, treated in terms of 77 or 78 or produce a certificate. One problem was that the certificate should not be more than three months old.
Mr Basset said that the drafters would revert to some of the wording used in the previous draft of sub (6).
The Chairperson said that the Committee had reintroduced the sanction. There should be a sanction for applicants who wanted to adopt or foster children and this should be in the stand alone clause.
Mr Basset said that this clause would fall away.
Mr Basset said that the only change was in relation to reference to a person who had been convicted but not yet sentenced.
The meeting was adjourned.