Criminal Law (Sexual Offences) Amendment Bill [B50- 2003]: deliberations

JUSTICE PORTFOLIO COMMITTEE
8 November 2006
CRIMINAL LAW (SEXUAL OFFENCES) AMENDMENT BILL [B50- 2003]: DELIBERATIONS

Chairperson: Ms F Chohan (ANC)

Documents handed out:
Criminal Law (Sexual Offences) Bill [B50-2003]
Criminal Law (Sexual Offences & Related Matters) Amendment Bill as of 7 November 2006
Draft of Chapter 6: National Register for Sex Offenders

SUMMARY
The Chairperson indicated that there was a possibility that Parliament would re-tag the Bill. The legal opinion relating to the tagging was, in the opinion of the Chairperson, flawed in several respects and the legal advisors from the Department of Justice were discussing it. The resolution of the Committee would be amended to place greater emphasis on the procedure followed and the reasons why the Committee did not believe a re-tagging was necessary.

The Committee continued to consider the changes to the draft of the Criminal Law (Sexual Offences and related matters) Amendment Bill. The representatives of the South African Law Reform Commission took the Members through each of the clauses of the redrafted Chapter 6, pointing out and explaining the changes. There were no major changes of principle, other than the fact that the Register would also include the details of those convicted of sexual offences involving persons who were mentally disabled as well as minors. Stylistic and grammatical changes had been made. A time restriction had been inserted for the validity of certificates. The Committee agreed to most of the changes that had been made. It was resolved, however, that Clauses 44(d) to (g) would retain the words “in respect of his or her own particulars”, and that the wording of the new 50(4) would be slightly changed to reflect that the prosecuting authority or any other person must, immediately or at any other time, bring an omission in making an order under 50(2) to the Court’s attention.

The Committee would be taking a vote on the Bill on Friday 10 November and the Bill would be debated in the National Assembly on Tuesday 14 November.

MINUTES
Procedural issues: Tagging of the Bill
The Chairperson said that Parliament had indicated that it might wish to re-tag the Bill. The opinion in support of re-tagging forwarded by the Speaker had, in her view, many flaws. Firstly, the State Law Advisors had ignored the fact that the Bill had been revived from its original introduction in 2003, and that when it came before the Committee in May 2006, it already contained the amendments that the Committee had suggested before. The Committee, despite the fact that the public hearings had closed in 2003, still allowed more submissions, which were summarised as at the end of August. The Committee even tabled and considered further submissions received after that date. Some non-government organisations (NGOs) had indicated that they were unhappy with certain points and had complained to the Speaker that the Bill reintroduced in May was in a different form from the one introduced in 2003. This was correct, but ignored the fact that the Bill was revised through a resolution of the House. A number of Bills had been revised in this way. Mr Lawrence Bassett from the Department of Justice would be speaking to the Speaker and advisors on their interpretation.

The Chairperson believed that the resolution of the Committee should therefore stress the steps followed and clarify the reasons why the Committee felt that it had followed correct procedure. The tagging could still take place after the Bill had been passed.

In addition, there was a suggestion that the Bill be tagged as a Section 76 Bill. The reasons was that the Bill made reference to post exposure prophylactic treatment, which was the responsibility of the Department of Health, and to compulsory HIV testing, which was the responsibility of the Department of Health and the South African Police Service (SAPS). Neither of the concepts were, however, new concepts. The requirements on the Department of Health had already been imposed in 2003, and the bill that introduced Compulsory HIV testing was in itself introduced as a Section 75 Bill.

Criminal Law (Sexual Offences and Related Matters) Bill: Consideration of provisions relating to the National Register for Sex Offenders
Ms Delene Clark (Researcher, South African Law Reform Commission) explained each clause of the redrafted Chapter 6 to the Committee. She indicated that a number of the changes were stylistic only and had not altered the substance of the Bill.

Clause 40: Definitions
Ms Clark stated that the definition of “certificate” had been changed to place a time limit on the validity of a certificate. The drafters had wanted to guard against the possibility of a person obtaining a certificate, subsequently being convicted of an offence, but still attempting to use the old clean certificate.

The definition of “employee” had been altered. It now referred to “a person who… works for an employer” so that the two definitions of employee and employer were cross-referenced, and it was unnecessary to include every category of employer also in the definition of employee. The ambit of the clause had also been slightly widened in specifying that the person could be in a position of authority, supervision, or care, or have access to a child or person who was mentally disabled, or be in a place where children or mentally disabled persons were present or congregated.

The Chairperson was not happy with the grammatical structure of last phrase of the definition and requested that “gaining access to” be changed to “or who gains access to”. She asked that wherever this phrase appeared in the Bill it be altered in this way.

Ms Clark pointed out that all the definitions and references in this Chapter now included both children and persons who were mentally disabled.

The definition of “employer” now included references to both children and persons who were mentally disabled. The wording had been tightened, but there were no changes of substance.

The definition of “licensing authority” similarly contained only stylistic changes.

The definitions of “Register”, “Registrar” and “relevant authority” had been altered to reflect changes in the numbering of clauses.

Clause 41: Prohibition on certain types of employment
Ms Clark pointed out that this and all the following clauses would again include both children and persons who were mentally disabled.

The reference to “self employment” had been deleted from this clause as it was now included under the definition of “employer”.

At the request of the Committee, the references to “permanent or temporary” had also been taken out. The clause now read “in a position of authority, supervision or care”

Ms S Camerer (DA) noted that the word “children” had been replaced with “a child”.

The Chairperson said that this was because the Interpretation Act stated that the singular was deemed to include the plural, but did not say that the plural included the singular.

Clause 42: Establishment of National Register for Sex Offenders
Ms Clark pointed out that the only substantial change was the deletion of clause 42(3)(b). This subclause had now been included under the confidentiality provisions, in clause 52(1).

Clause 43: Objects of the Register
The Chairperson indicated that the Register would now reflect sexual offences against children and those who were mentally disabled. There had been some consequential renumberings.

Clause 44: Persons entitled to apply for certificate
Ms Clark indicated that the introductory sentence had been changed by inclusion of the word “solely” to make it clear that only the persons set out in the subparagraphs could apply for a certificate. Ms Clark also indicated that the words “in respect of his or her own particulars” had been used repeatedly in subclauses (d) to (g) and therefore the drafters had deleted this phrase, since the word “solely” would cover the situation.

The Chairperson indicated that although the words were repetitive, she would prefer to keep them in, to clarify the situation for each and every category.

It was decided that the phrase “in respect of his or her own particulars” should be reinserted in clauses 44(d) to (g)

Clause 45: Obligations of employers in respect of employees
The Chairperson indicated that similar changes had been made to the grammar and wording as indicated at the start of the meeting.

Clause 46: Obligations of employees
Only technical amendments had been made to this clause. Clause 47: Obligations in respect of license applications
Ms Clark indicated that the details of the licence in clause 47(2) had now been removed, as they were now included in the definition clause. The remainder of the changes were grammatical and technical.

Clause 48: Obligations in respect of fostering etc
The changes to this clause were purely technical.

Clause 49: Contents of Register
Ms Clark pointed out that the wording of 49(b)(iv) had been changed to reflect also a sexual offence against a person who was mentally disabled.

Clause 49(b)(vi) now included the word “allegedly”. A person who was removed to a mental institution following a crime had not been convicted and therefore the offence was still “allegedly committed” and not proved.

Clause 50: Persons whose names must be included in Register
Ms Clark stated that the changes once again reflected the inclusion of persons who were mentally disabled.

Clause 50(3) had been strengthened by stating that the Registrar “must” forward the Order of Court.

Clause 50(4) had been added. If a Court failed to make an order that a copy of the Court Order in respect of the offence must be forwarded to the Registrar for inclusion in the Register of Sex Offenders, then either the state or any other person would have to bring this omission to the notice of the Court that tried the case.

Mr J van der Merwe (IFP) asked how this would be done, and whether it was necessary to bring a formal application, or whether a letter would suffice.

The Chairperson stated that there would be no problem if the Court was still sitting, but the problem could arise when the proceedings had already adjourned. She wondered if the words “or at any stage” should be inserted after “immediately”. She believed that the Registrar of the Court could point it out to the presiding officer.

Mr van der Merwe did not believe that the Bill would have to prescribe a procedure, unless it wished to include something different from the normal Rules of Court.

The Chairperson then said that for practical purposes the Order should be made immediately after sentencing, so the Court would be in session, and the accused present. She thought that the reference should be to the “prosecution” rather than to the “state” and suggested that the wording read along the lines of: “Where a court… fails to make an order under subsection (2)(a) the prosecuting authority or any person must immediately, or at any other time, bring this omission to the attention of the Court and the Court must rectify its order accordingly”.

Ms Clark pointed out that clause 50(5)(b) now clarified that a prisoner must be a serving prisoner.

Clause 50(6) had been changed to refer to “available particulars”. The Chairperson clarified that at least at the beginning it must be accepted that the Register would be incomplete. The record of those convicted of sexual offences in the past did not necessarily record whether the offences involved children or persons with a mental disability.

Clause 51: Removal of particulars from Register
This clause now also contained the inclusion of references to persons with a mental disability.

Clause 52: Confidentiality and disclosure of information
Clause 52(1) had been inserted and contained the wording that was removed from clause 42.

Other consequential changes to numbering had been made.

Clause 53: Regulations pertaining to Register
There had been consequential changes of numbering and the inclusion of references to persons who were mentally disabled.

Ms Clark stated that the Committee had asked the drafters to consider whether clause 53(2) should be retained. The drafters believed that it should and that it was preferable to insert in the main body of the legislation the fact that the provisions of this Chapter would apply to employers and employees with effect from date of publication of the regulations.

The Chairperson stated that a new draft would be available to Members on Friday 10 November, and the Committee would meet at 9:30 and vote finally on that day. The Bill would be deliberated in Parliament on Tuesday 14 November. The Committee would also finalise the wording of the Committee Resolution on that day.

Other Committee Business
The Committee briefly discussed arrangements for the forthcoming study tour to London and India.

The meeting was adjourned.