Criminal Law (Sexual Offences) Amendment Bill: deliberations

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Justice and Correctional Services

26 October 2006
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Meeting Summary

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Meeting report

JUSTICE AND CONSTITUTIONAL AFFAIRS PORTFOLIO COMMITTEE
27 October 2006
CRIMINAL LAW (SEXUAL OFFENCES) AMENDMENT BILL: DELIBERATIONS

Chairperson:
Ms F Chohan (ANC)

Documents handed out:
Working draft of Criminal Law (Sexual Offences) Amendment Bill
, as of 25 October 2006
National Register for Sex Offenders
Redrafted Clauses 43 to 56]
Optional definition of “Employer”, Clause 43
Draft Portfolio Committee Report on the Bill (available once adopted at Committee Reports]
Submission by Tamlyn Monson on the Criminal Law (Sexual Offences) Amendment Bill
Criminal Law (Sexual Offences) Bill [B50-2003]

SUMMARY
The drafters from the Department of Justice and the South African Law Reform Commission took the Committee through the latest draft of the Bill, dated 25 October 2006. They indicated that there were still some options, and that the words in square brackets were to be deleted, the words underlined were to be added, and the highlighted words were to be considered. The Committee agreed that some of the optional wordings could be deleted or changed, but some remained for the vote the following week.

A redrafted version of the Chapter on the Register was discussed and an alternative definition of “employer” for the purposes of this Chapter was also tabled, to take into account licensing authorities and those who were self-employed.

Matters still to be considered or voted upon included the possible raising of the age of consent to eighteen, the reconsideration of the heading of Chapter 3, changes to the definition of “employer” and its amendment in respect of, or a new definition created for “licensing authority”. The drafters would check what would be the effect in certain clauses of using the words “child complainant” and whether “child pornography” and “using a child for pornographic purposes” were adequately linked. The scope of the word “profession” would be checked, to see whether it would incorporate “trade”. The Committee would vote on the optional wording for the definition of “child”, and the options contained in clauses 48(4) and 53(2).

The Committee would continue to deliberate the Bill from Tuesday 31 October, with a view to holding the voting session on Friday 3 November, so that it could be introduced into the House in the week commencing Monday 6 November..

MINUTES
Mr Henk du Preez (Senior State Law Advisor, Department of Justice) tabled a new version of the Criminal Law (Sexual Offences and Related Matters) Amendment Bill, numbered “06 Sex Off 56” and proceeded to take the Committee through the relevant portions.

Clause 1
The definition of “caregiver” was tabled. This would apply to the clauses dealing with persons who were mentally disabled.

Under the definition of “child” there still remained an option to define a child as one below the age of eighteen, as opposed to below the age of sixteen. Mr S Swart had proposed this option. The Chairperson requested that the option remain in the next draft, to be voted upon the following week. So far there did not seem to be much support for the proposal. The point would be raised also in the Report of the Committee.

The definition of “sexual penetration” also contained an option. The Chairperson requested that the definition be simplified by deletion of the works “or any object resembling or representing the genital organs of a person or an animal” from the middle of the sentence.

The definition of “sexual violation” also contained an optional wording. The Chairperson requested that both words be used, so that the definition read “including any object resembling or representing..” in paragraph (a)(i). The footnote in relation to this paragraph could be deleted. Similar wording should be inserted under paragraph (c), so that this read “the insertion of any object resembling or representing…” The option to paragraph (c) should be deleted.

Clauses 4 and 6
Mr du Preez pointed out that the words “with or without the consent” had been removed from Clauses 4 and 6, dealing respectively with compelled rape and compelled sexual assault. The Chairperson agreed that this had clarified the position in regard to accomplices.

Clause 8
Mr du Preez indicated that there were options to be considered under this clause. The Chairperson felt that Option, which effectively split up the offences, was clearer. She requested that only the wording of the “option” appear in the next draft.

The “Option to Clause 8”, which appeared on page 11, should also be deleted, as the concepts embodied in it had now been incorporated elsewhere.

Clause 10
Mr du Preez indicated that the optional wording of clause 10 had been put back into the Bill, at the request of the Committee.

Clause 10A
Mr du Preez indicated that there were a number of options under this clause, which basically dealt with the prostitution scenario.

Mr L Joubert (DA) indicated that he was not happy with this clause be included as it was already a statutory crime under another piece of legislation. He felt that if it were to be included, then the whole issue of prostitution should be dealt with as well in this Bill.

The Chairperson agreed that the question of prostitution was not dealt with holistically. The Law Reform Commission was in the process of undertaking a review of the law. Parts of the 1957 Sexual Offences Act remained in force, as listed in the Schedule to this Bill. The offence of soliciting a prostitute remained on the statute book, but the last prosecution had been in 1987. When the Jordan case had been considered, the Constitutional Court had concluded that prostitution was still a crime. Whether or not it should be was a policy decision, which was still to be decided upon. This Bill tried to be as comprehensive as possible, without making policy decisions. The crime of soliciting was contained in the Riotous Assembly Act. However, the problem was that prostitutes –most often women - were victimised while the client of the prostitute was never prosecuted. This was contrary to the equality legislation. Certainly, should a policy decision be taken on prostitution, then both this clause and the Sexual Offences Act 1957 would need to be reconsidered and possibly revised, depending which way the policy decision went. This clause did not in any way change the law, but merely attempted to draw attention to the fact that it was applied unequally.

Mr Joubert understood the reasoning but was worried that the wrong message would be read into the Bill. He asked why the clause should not simply be left out.

The Chairperson reiterated that the clause gave no extra powers to the police, but specified that if the prostitute was charged, the client must also be charged. The inclusion of the clause drew attention to the inequality. If the police did not wish to arrest the client, then they must not arrest the prostitute. If prostitution were to be legalised in future, this clause would simply be repealed. The Law Reform Commission would shortly be proposing three options: leave prostitution as a crime, restrict prostitution or legalise it. This Bill was attempting, insofar as possible, to codify the laws relating to sexual offences, and in this specific instance had not changed the current law. She noted that to some extent the submissions made by the sex workers advocacy groups had been misleading in that they suggested that the Bill sought to change the law, despite the fact that, as a party to the Jordan case, they clearly knew the Constitutional Court ruling.

In relation to the options proposed, the Chairperson indicated that the Option 2 did not mention consent, whereas Option 1 did.

Mr du Preez believed that consent was already implicit in the use of the words “engages the services of” which implied a willingness to contract. It was possible that the engaging of services could be done also through a third party, such as a pimp.

The Chairperson mentioned that some of the submissions had touched on the question of non-payment for services. She asked whether Option 2 had captured the essence that the soliciting itself was sufficient for a charge to be laid, irrespective of whether a sexual act occurred. Option 1 had set out the two stages more clearly. She asked whether words such as “promises” or “undertakes to pay” or “irrespective of payment” should be incorporated.

Mr Lawrence Bassett (Chief Director: Legislation, Department of Justice) suggested that “in anticipation of” could be used.

The Chairperson indicated that the act of prostitution was covered in the 1957 Sexual Offences Act, but this Bill was trying to cover the act of procuring sexual services, and to ensure that the fact of non-payment would not necessarily be a defence.

Mr du Preez believed that the words in the second option would indeed cover all possibilities.

The Chairperson was also persuaded that the second option was sufficient, and preferred it to the first, as she was unhappy with the issue of consent.

Mr du Preez pointed out that a person could always be convicted of an attempt.

The Chairperson said that the Committee should perhaps consider the inclusion of a general clause covering attempts and incitement, to make it clear that charges of attempt or incitement would be competent in respect of any of the crimes listed in this Bill, including the new crimes.

Mr Joubert raised the question whether a person inviting a woman to accompany him on a trip, with all expenses paid, could be charged under this clause.

Mr du Preez replied that the principle of the “bottom line” was used. If the person specifically said that he would pay, in exchange for sexual services, then he would be charged. The unlawful and intentional elements would have to be proved in the context.

It was agreed that Option 2 be used in the next draft, and that Option 1 be deleted.

Clause 11(1)
The Chairperson indicated that Option 2 had a good intention but was rather wordy. The original wording was not sufficient because it had not clearly indicated that both parties to the crime of incest could be charged, except children under the influence, control or authority of adults. The decision on the prosecution was contained in subsection 11(3).

It was agreed that Option 1 of 11(1) be included in the next draft, and that the original wording and Option 2 be deleted.

The Chairperson noted that the defence available to the child was contained in Clause 53.

Mr du Preez indicated that the clause numberings would still need to be changed.

Chapter 3: Part 1 Heading
The Chairperson was unhappy with the definition including the word “consensual rape”. She felt that no rape could ever be consensual and requested that the wording should remain with the generally accepted and understood version of “statutory rape”.

Mr du Preez said that strictly speaking all rape was statutory, since the crime was contained in a statute.

The Chairperson replied that statutory rape was the term most commonly used across a number of countries, according to research conducted by Ms Delene Clark.

Mr du Preez stated that a charge sheet would contain the words “unlawful sexual acts with a child”

The Chairperson requested the drafters to consider a suitable heading. The content of the Clause was acceptable.

Clause 16
The Chairperson requested that the highlighted words in 16(1) and 16(2) “with or without the consent of B” should be included, as this clause related to children under the age of eighteen. She further requested that all similar references be retained in other clauses.

The Chairperson requested confirmation of the definition of a primary care giver in clause 16(3)(a).

Ms Delene Clark, Researcher, South African Law Reform Commission, confirmed that it referred to a person who took care of the basic daily needs of a child. The definition earlier in the Bill had referred specifically to the caregiver of a person who had a mental disability, and essentially contained the same provisions.

The Chairperson indicated that the new clause 16(4)(a) imposed the duty to report knowledge of sexual exploitation, while subsection 16(4)(b) made the failure to report an offence. She stated that a similar clause must be included in respect of persons with mental disabilities, as both were vulnerable groups, and that the wording must be the same.

Mr du Preez indicated that the drafters, on reconsidering the matter, had decided that this duty should rather be included under a new clause 53A, in respect of both children and persons with mental disabilities. This would make it clearer that the duty to report offences against children and the mentally disabled applied in regard to all offences, and not merely those in Chapters 3 and 4 of the Bill.

After discussion on Clause 53 it was agreed that 16(4) be deleted. The footnote on that page should also be deleted.

Clause 53A
The Chairperson agreed in principle with 53A(1) and (2) but did not agree that the decision to prosecute in this instance must be taken by the Director of Public Prosecutions.

Ms Clark indicated that a person might have made a bona fide report, which was erroneous.

The Chairperson pointed out that this clause should only cover a person failing to make any report at all. The Courts would decide if the person failing to report actually had knowledge.

It was agreed that Clause 53(3) be deleted.

Referring back to Clauses 53(1) and (2) Mr du Preez indicated that there was a question in relation to the tenses used, and whether a person who had gained knowledge that a crime against a child was being planned would have to report it.

The Chairperson thought that the Interpretation Act already contained provisions in relation to present and past tense. A planned crime would be an incitement or an attempt. She suggested that the wording should read “has been committed”.

Ms Clark stated that similar legislation, such as the Prevention of Family Violence Act and the Child Care Act, contained wording that a person having “a reasonable suspicion” should have the obligation to report

The Chairperson noted that the wording used in 53A had originally come from the first draft of Clause 16, and suggested that inclusion of “reasonable suspicion” wording could cause problems.

Mr Joubert questioned the time frame.

The Chairperson confirmed that the wording must reflect that the report should be “immediate” as it involved vulnerable groups.

Clause 18
The Chairperson asked why the words “a child complainant” had been used in defining the crime. She said that she would not like a prosecution to be quashed because there was no co-operation of the child or its parents.

Mr du Preez stated that this wording was merely for the sake of consistency as there had been reference to “complainant” throughout

The Chairperson asked the drafters to check whether the word should be in or whether it would pose any difficulty to prosecution should there not be a complainant.

Clause 19
Mr Joubert indicated that once again the words “child complainant” appeared in this clause.

Mr du Preez confirmed that he would do a search of the document, once he had clarified the position on complainants, and would be able to make sure that all clauses read consistently.

The Chairperson indicated to the Committee that the clause had been clarified so that anyone “using” a child could be convicted, whether or not the pornography had yet been created. However, she saw a stylistic problem in that nowhere in clause 19 was there a definition of what “child pornography”, referred to in 19(2), was. “Using a child for pornographic purposes” as contained at the end of 19(1)(b) was a broader category. She wondered if the offences should not both read as something similar to” using a person for child pornography”. She asked the drafters to consider this.

Mr du Preez replied that the previous draft version of 19(1)(b) had not included the highlighted words now shown, which were similar to words in 19(1)(a). The Committee had not specifically instructed the drafters to make the inclusion but they believed that it clarified the clause. Subsection (b) referred to third and fourth parties such as camera crew. It also clarified the situation where a child could be used as a prop, rather than an actor, in a sequence involving adult pornography.

Clause 20
The Chairperson requested Mr du Preez to delete the original wording of Clause 20, so that the Option stood in the next draft

Clause 24(4)
In line with the previous discussions on Clause 53A this sub clause would now be deleted. It was noted that “teacher” had been added in to clause 24(3)(a). The footnote would be deleted from this page.

Clause 25
Mr du Preez indicated that all the changes had been made at the request of the Committee.

Clause 26
Mr du Preez pointed out that this clause had been amended by the addition of a reference to “harmful material”. He enquired whether a similar reference should also be included in the clauses dealing with children. He mentioned that the clauses dealing with children made reference to material that was age-inappropriate.

The Chairperson said that there was some discussion whether persons with a mental disability should be treated in the same way as children. Pornography was classified along age lines. Persons with a mental disability could not be put so easily into age categories. She believed that the current age classifications in regard to children included the concept that these materials would be harmful if shown to inappropriate age groups. There was no need to include “harmful” separately.

Clause 27
The Chairperson requested the drafters to reconsider the wording of the offence “benefiting from pornography of a person…” to something along the lines of “benefiting from using a person who is mentally disabled for pornographic purposes”

Mr Joubert enquired whether the definition should not merely read “benefiting from pornography”.

The Chairperson explained that the fact of benefiting other than in by using minors or persons with a mental disability fell under the Film and Publications Act.

Clause 30
The Chairperson noted that the definition of “interested person” had been tightened. She noted also that the drafters would double check all the numbering references once the final draft was compiled.

Clause 32(2)
The Chairperson noted that the clause now detailed where the notices in regard to the clinics offering Post Exposure Prophylaxis (PEP) should be published, and obligations were also cast on the relevant Directors General. The notices were to be published at certain stages because new clinics might well be added as the rollout took effect.

Clause 33(2)(iv)
It was noted that the reference to “a family member” had been replaced with “parent”.

Clause 36(2)(b)
The Chairperson noted that it had been necessary to include reference to the National Commissioner of the South African Police because test results would not only be in the hands of the clinics, but also of the investigating officers. The directives to be issued by the Commissioner would therefore also have to include details in regard to destruction of specimens and results.

Clause 37
The Chairperson indicated that this clause dealt with a victim being entitled to obtain the test results. The clause had been inserted in an attempt to enable the victims to make lifestyle choices, such as healthcare, whether to continue to breastfeed, dietary changes, and was intended primarily as an empowering mechanism, as well as to lessen the secondary trauma. However, even some of the latest submissions continued to misinterpret this clause, saying that many women would decide not to take PEP within 72 hours. That was clearly not the intention and the information to be given to victims would set out that it was important to take PEP irrespective of the test result, because of the window period. She therefore asked the Committee to consider if something to that effect should be included in the preamble to the Bill, or if the word “medical” should be taken out, or replaced with “health”.

Mr Joubert wondered if the term “empower” was too strong and should be amended to “enable”.

The Chairperson believed that the notion was indeed one of empowerment. She wondered if inclusion of words along the lines of “with a view to reducing the secondary trauma, and empowering the victim to make informed lifestyle and personal decisions” would be better.

Mr Joubert did not believe it was necessary to change the wording.

The Chairperson requested the drafters to consider possible alternative wording.

A further grammatical point had been raised on clause 37(ii). She suggested that “using the test results” be used instead of “using them” would read better.

Clause 39(c)(ii)
The Chairperson felt that “research” was too wide and requested that this reference be deleted. She pointed out that the clause related only to the order for testing, and not to the results of the test.

Clause 40(1)
The Committee noted the inclusion of a reference to an order of court, to tie in with the clauses relating to offences and penalties.

Clause 41(1)(b)
The Chairperson asked, and received confirmation that, those working in the office of the Registrar or the Clerk of the Court would be included in this clause. Mr Bassett indicated that police officers and medical personnel who disclosed results unlawfully would be covered by other specific sections.

Chapter 6
The Committee considered the draft contained in Document 57(a), with the exception of the definition of “employer”, which was contained in Document 57(b).

Clause 43
Definition of “employer”
Mr Bassett stated that the definition of state employers was similar to that in the Protected Disclosure Act. The new definition now tried to separate out the various categories of employers. Subclause (a)(ii)(aa) encompassed the state institutions responsible for granting licences and subclause (a)(ii)(bb) were those that employed employees or volunteers who either cared for or had access to children. Subclause (b)(i) envisaged people who had a business or economic management in businesses connected with children and (b)(ii) covered those who employed other people in such businesses.

The Chairperson felt that the wording of (a)(i)(aa) should be amended to make it clearer that the entity, business concern or trade must relate to “the care or supervision of children”. In its present form it would cover businesses such as the manufacturing of children’s clothes, which was clearly not the intention. Similar changes should be made to the wording of (b)(i) so that it read something along the lines of “entity or business concern or trade, which in any manner whatsoever provided any services to of for children” to tie in with the provisions of (ii) which stated that the employees would be placed in a position of authority or supervision.

Definition of “employee”
The changes suggested by the Committee in relation to the definition of “employee’ had now been incorporated.

Ms Clark pointed out that the reference to “an organ of state” would now have been incorporated into the definition of “employer” so that it was no longer necessary to list this as a separate category.

Clause 44, and Clause 53(2)(b)
Ms Clark stated that this new clause established the principle that certain people would not be able to undertake certain types of employment. Clause 44(b) now included references to self-employment, and a temporary caregiver had been added in to 44(d), which dealt with children being placed in places of safety.

The Chairperson indicated that she would like to see a provision that a judge, in issuing the order that a convicted person’s name be placed on the Register, should also advise the person of the provisions of clause 44.

It was agreed that the words “including the provision of Section 44(1)” would be incorporated into 53(2)(b).

The Chairperson further pointed out that contractors should also be covered in 44(b) and suggested that the words “permanent or temporary position of authority…or of gaining access” be used. This would cover gardening services contracted to a day-care centre, for example.

Sections 77(6) or 77(8) of the Criminal Procedure Act

Many of the clauses in this Chapter now contained reference to those who had been dealt with in terms of Section 77(6) or 78(6) of the Criminal Procedure Act, and, where applicable, the words “who have been convicted of” had been removed to allow also for those dealt with under this procedure.

Clause 48
Ms Clark pointed out that 48(2)(a) had been reworded for greater clarity. The order of the subclauses had been changed.

The Chairperson asked that the period of 36 months be included in the proviso to 48(2)(b)

Ms Clark indicated that 48(3)(b) was the catch-all provision, intended to cover those who had received knowledge of the inclusion of a person’s name on the Register. A person gaining knowledge was then obliged to make the necessary enquiries by way of 48(1).

The Chairperson said that this situation then needed also to be covered in the clause dealing with access to the Register, so that an employer who had previously requested access, but now had a reasonable suspicion, would be able to check again. She also requested that the wording of 48(3)(b) be amended, from referring to “in any manner whatsoever” to “in the prescribed manner” .

The Chairperson requested that clause 47 then also be amended to make it clear that an employer could be one applying under clauses 48(1)(b) or 48(3)(b).

For clause 48(4), Mr Bassett referred to the footnote where the concern was raised that a parent employing a childminder but failing to check the Register could be guilty of an offence.

Mr Joubert felt that it was not practicable to expect parents to check.

The Chairperson said that it was pointless to have a protective net and not enforce it.

Imam G Solomon (ANC) said that it was impossible to cater for every eventuality.

The Chairperson felt that the provision should be left in, as a parent should be able to check the Register. She suggested that this footnote be left in, and that it be considered again when the Committee voted on the Bill.

Clause 50
Ms Clark indicated that this clause related to the granting of licences.

The Chairperson indicated that she was not happy with the use of the word “employer”. She suggested that there be a separate definition in relation to licensing authorities, similar to that created for caregivers and foster parents, so that they were specifically defined as those who issued licences for any trade or business concern which offered services to parents for the supervision and care of children. Both the licence granter and the applicant for a licence could be covered. It would only be necessary to refer to the definition under “employer”. It was not necessary to define the applicant since the obligation was imposed only on the authority granting the licence. If such a definition were to be included, then the wording of Clause 50 could be amended to “A licensing authority may not grant…”

The Chairperson also asked that the words “..trade relating to children” must be clarified, similar to previous discussion, to “trade relating to the supervision or care of children”.

Subsection 50(4) would then refer to “any licensing authority or person”.

It was agreed that the necessary amendments be made and that “licensing authority” would be separately defined.

Clause 51
The Chairperson had similar concerns with this clause. She asked why this clause needed to refer to an employer.

Ms Clark replied that this clause did include an organ of state, or a department in the national or provincial government that was tasked with approving applications.

The Chairperson asked whether this clause should be worded so that the obligation to disclose was cast on the individual. She suggested that the wording reflect that a person applying must disclose, and no application should be granted unless the authority concerned had verified that the applicant’s name did not appear on the register, which would make it clearer that there were obligations on both sides.

The drafters agreed to look at an alternative wording.

Clause 52
The Chairperson queried the use of the word “profession”. She felt that it would be perhaps more appropriate to use “trade or profession”.

It was agreed that the drafters would check the use of the word and whether there were any previous decisions upon its scope and meaning.

Clause 53
Ms Clark confirmed that a person who had been convicted but not yet sentenced would be covered by clause 53(1)(i).

The Chairperson requested that the words “has or has not served a sentence” should be inserted into the wording of clause 53(1)(iv), for the sake of consistency. This would enable the clause to cover a person with a previous conviction who had served a sentence, a person currently serving a sentence, a person previously convicted under another law, a person convicted who was awaiting sentencing, or who had received a fine, and a person charged under the Criminal Procedure Act sections 77(6) or 78(6).

The Chairperson queried the wording of clause 53(3), which made reference to the Registrar having to notify the regulating or professional body of a conviction. She felt that this would be unduly harsh if the person were, for instance, an architect or engineer who did not come into contact with children. She requested that these references be deleted.

Ms Clark asked whether it would be necessary to add in to that subsection reference also to the provisions of the Criminal Procedure Act.

The Chairperson did not think this was necessary, since the order would be referred to the Register and there was already provision for notification under that Act.

Ms Clark pointed out that 53(7) had been changed in so far as the content of the Register was concerned. The Chairperson agreed that the new wording was acceptable.

Clause 54
Ms Clark indicated that references to the failure to disclose had been removed from clause 54(2)(c) since this had been provided for elsewhere.

Clause 55
Ms Clark explained that this clause dealt with the confidentiality of information and 55(1) addressed the position of the Registrar and staff. The Committee had also requested that other functionaries, such as officials of Correctional Services and SAPS be added, but the wording did not yet reflect them.

Mr du Preez added that he did not believe it was necessary to include reference to section 47. He believed that any unlawful disclosure of information, however it came to the notice of the official, should be covered. He proposed that the section should simply read “who wilfully discloses an information to any other person (deleted words) is guilty of an offence…”

The Chairperson asked why the period of imprisonment was given as three years, and not seven, as in other sections.

Mr du Preez stated that the period had always been three years.

The Committee agreed with Mr du Preez’s proposals and noted that other functionaries would have to be added still to the clause.

The Chairperson asked that clause 53(3) should also be tightened by deleting the reference to “in terms of this Chapter” as it was intended also to cover a journalist who had illegally obtained the information from an official.

She asked whether “publishes” should be added or whether “discloses” was sufficient.

Mr Bassett thought that “discloses” was wide enough but saw no harm in using “publishes” as well.

Clause 56
Ms Clark indicated that the changes related to numbering, except for 56(1)(i) which now referred to both the format and content of the certificate, and 56(1)(k) that specified that the certificate could be provided to any person, which would include applicant and employer.

Chapter 7: Clauses contained in document 56
Mr du Preez indicated that the Committee should now consider the wording as contained in the main draft number 56. The clauses would be renumbered in the next draft.

Clause 53(2)
Mr du Preez indicated that this clause still contained two options.

The Chairperson requested that both options be carried through to the next draft as the Committee would vote on this issue.

Clause 53A
This clause had been discussed earlier in the meeting. It was agreed that clause 53A(3)(a) and (b) would be deleted.

Clause 63
Mr du Preez pointed out that clause 63(1)(c) now stipulated what the national instructions of SAPS must address.

The Chairperson asked the reason for the inclusion of clause 63(1)(b)(i). She did not believe that there needed to be consultation on the manner in which police officials should hand over test results to victims and interested persons. She did agree that the clauses dealing with the retention and recording of test results were important.

It was agreed that 63(1)(b)(i) would be deleted.

Mr du Preez indicated that there were minor changes to the wording in 63(2) and (3). Clause 63(3) now made reference also to “any other relevant person”. The Director General would decide who might be relevant. This could include personnel other than medical practitioners in the hospital.

Mr du Preez stated that clause 63(4) had resulted from “over-zealous drafting” and had now been removed.

Clause 67
Mr du Preez stated that the definition of trafficking had been changed, following the instructions of the Committee.

Clause 68(5)
Mr du Preez indicated that the wording of this clause now included a reference to the Sexual Offences Act of 1957, so the footnote on the page would fall away.

Clause 69
Mr du Preez asked the Committee to confirm that it would be happy if the title of the Act would remain the same as the title of the Bill

Commencement Date
The Chairperson indicated that the commencement date should probably be around June 2007. She asked the drafters to check whether this was feasible

General comments on the way forward
The Chairperson stated that the Committee would continue to deliberate the Bill from Tuesday 31 October, when it would consider the wording of the Committee resolution and draft report, the long title and objectives, the memorandum on the objects, the commencement date, and the redrafted version of Chapter 6.

Mr Bassett circulated the draft report of the Committee and the Chairperson requested members to study it before the next meeting.

She stated that the age of consent seemed to be a policy issue, rather than a legal or constitutional one, and it was therefore difficult for the Committee to refer the matter to either the South African Law Reform Commission or the Department. The Committee report would make it clear that the Committee had considered the age of consent, and the fact that most of the submissions favoured the age being fixed at 16. The Committee had noted that most countries fixed the age of consent at 16 although some had a lower, and some a higher, age. The Committee believed it was a policy decision and had not taken a definite stance.

It was hoped that the Committee could vote on the Bill by the following Friday so that it could be referred to the House in the week commencing 6 November.

The meeting adjourned.

 

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