Repeal of Black Administration Act & Amd of Certain Laws A/Bill [B34-2007]: briefing; Criminal Law (Sentencing) Amendment Bill:

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
22 August 2007
REPEAL OF BLACK ADMINISTRATION ACT & AMENDMENTS OF CERTAIN LAWS AMENDMENT BILL [B34-2007]: BRIEFING; CRIMINAL LAW (SENTENCING) AMENDMENT BILL: DELIBERATIONS

Chairperson: Ms F Chohan (ANC)

Documents handed out:
Repeal of Black Administration Act & Amendment of Certain Laws Amd Bill [B34-2007]
Summary of judgments in rape cases, prepared by Department of Justice
Matter between Nhlanhla Nkomo and the State[2006]
Criminal Law (Sentencing) Amendment Bill, version dated 15 August

Audio recording of meeting

SUMMARY
The drafters from the Department of Justice summarised for the Committee the main changes made to the current draft of the Criminal Law (Sentencing) Bill. The long title now included a reference to amendment of the Prevention of Organised Crime Act. The proposed new Section 51(3)(a) would state specifically that a Regional Court that had found substantial and compelling circumstances justifying the imposition of a lesser sentence would have jurisdiction to impose imprisonment for a period "not exceeding 30 years". Two options were proposed for the new Section 51(3)(aA), and Dr Delport had drafted a further option to the new Section 51(3) to state that the Court could only depart from the minimum sentence if it found substantial and compelling circumstances and if the victim had not been mentally or physically harmed.

The Committee discussed the recent judgments in rape cases. It was unanimous in the need to send out a strong message that it did not believe some interpretations placed on substantial and compelling circumstances were appropriate, and that although effective mechanisms were already in place, they were being disregarded, especially in relation to rape, by the implementers of justice. A technical amendment was made to the new Section 51(7). The Transitional Clause was now included in a new Section 53A, and there were two options, one referring to dates, and one to committal for sentencing to the High Court. The National Prosecuting Authority was to be asked for its comment on this clause and the clause dealing with the prosecuting policy and directives under the National Prosecuting Authority Act. This new clause had now split up the references to prosecution policy and directives. The Committee felt strongly that a policy would assist the Authority in exercising its right to institute certain prosecutions in the High Court in the first instance. A new Schedule 3 was prepared, but it was suggested that the drafters should rather incorporate the listed crimes directly into Part IV of Schedule 2. The Chairperson and the drafters would try to correlate the offences listed in the Schedule more closely to the wording that had been used in the Sexual Offences Bill, in relation to compelled rape.

The Department of Justice tabled the Repeal of the Black Administration Act and Amendment of Certain Laws Amendment Bill, and indicated that when the Black Administration Act was repealed, it had been necessary to keep sections 12 and 20, which dealt with the functions of traditional leaders, in force until new legislation could be passed to deal with these issues. A "sunset clause" was therefore included, and this was due to expire on 30 September 2007. The Department had found some difficulties in correlating conflicting issues, had formed a Task Team, and would only be able to start the process to introduce new legislation in around November 2007. It therefore wished to extend the sunset clause, by way of this new Bill, until 30 June 2008. Members were concerned whether this would be sufficient time, but the Department indicated that it was under pressure to complete the legislation by this time. The Committee had called for submissions from interested persons and would consider any that were received, together with the Bill, the following week.

MINUTES
Criminal Law (Sentencing) Amendment Bill: Department of Justice (DOJ) briefing
Dr Lirette Louw, Researcher, Department of Justice, tabled a new version of the Bill, dated 15 August, which incorporated the comments and suggestions made by the Committee in its last discussions. She took the Committee through the changes that had been made.

Long Title
Dr Louw said that this had been amended also to include a reference to amendment of the Prevention of Organised Crime Act

Clause 1: Section 51(3)(a)
Dr Louw indicated that two options had been drafted to clarify the situation where a Regional Court had found substantial and compelling circumstances justifying the imposition of a lesser sentence, but would wish to impose a sentence in excess of its general 15 year jurisdiction. The first option set out different maximum periods for first, second and third offenders. The second option merely read that the Court would have jurisdiction to impose imprisonment for a period "not exceeding 30 years".

Dr Louw commented also that Association of Regional Court Magistrates, who were following the proceedings of this Committee, had stated that they would find the first option problematic.

The Chairperson agreed that the second option was clearer.

Clause 1: Section 51(3)(aA)
Dr Louw indicated that there were now two options for the wording of sub paragraph (3)(aA). Both set out the three circumstances that should not be considered as substantial and compelling circumstances. The first option contained the changes specifying that the circumstance could not be considered "in or of itself" and had also clarified that a prior relationship must be "a close personal relationship". Option 2 was the original wording. In addition, the previous page of the new draft contained the draft submitted by Dr Delport, which had constituted an amendment to subsection (3)(a) and which approached the matter slightly differently. This option (called "Dr Delport's option) stated that the Court would be entitled to impose a lesser sentence only if it found that the complainant suffered no serious permanent physical or mental injury and that substantial and compelling circumstances existed to justify a lesser sentence.

Dr Louw had a few concerns about this wording. In the past, it was clear that the Courts had struggled to find physical or mental harm to victims. She referred to her summary of judgments in recent rape cases. In S v Njikelana a 16-year old complainant was raped twice and pushed off a bridge. The accused had used considerable force yet it was found that her physical injuries were not serious. S v G dealt with the rape of a 10-year old, and even here it was found that no serious physical injuries had been inflicted on the complainant as "no excessive violence" was employed. NGOs had complained that this missed the point that rape, by definition, always used excessive force. This judgment was also criticised as having failed to recognise the distinctive nature of rape, where the most serious injuries were to the mental well-being of the victim. The Court in the case of S v Swart had received a detailed victim impact statement, which it apparently did not find was sufficient to justify the minimum sentence. It was clear from all these cases that the Courts were finding it very difficult to accept the concept of mental harm. Finally, she cited the judgment of Judge Lewis in Nkomo v S. The victim had been raped five times. She had jumped from the building to try to escape, but was again seized by the accused and raped again. It was said in the judgment that "it may be difficult to imagine a rape under much worse conditions". There had been serious brutality. However, the Judge found that the life sentence would not be appropriate, taking into account the age of the accused, the fact that he was employed, was a first offender and may have a chance of rehabilitation. The dissenting judgment by Judge Theron stated that this rape was "one of the worst imaginable". He added that courts should not shrink from their duty to impose minimum sentences, and to send out a clear message that they were determined to protect the equality, dignity and freedom of all women.

The Chairperson noted that it was a difficult problem, and the wording of any of the options would not necessarily cure the difficulties.

Dr T Delport (DA) noted that there was a difficulty that in setting out the three matters that were not to be considered on their own as substantial and compelling circumstances, this left the way open to interpretation that the court was entitled to consider other circumstances, and even to consider them on their own. He thought that his proposal imposed a more stringent duty on the court to find both substantial and compelling circumstances and to satisfy itself that the complainant had not suffered mental or physical harm. However, he understood the difficulties and would abide by the decision of the Committee.

The Chairperson said she had no doubt that this clause, once enacted, would be scrutinised and pronounced upon by the Courts. The question was therefore whether the Committee should do nothing and leave the principal Act, or whether it should take the risk of challenge and put across its point of view. She noted that there were a number of other cases in addition to those cited by Dr Louw. Women's groups had done a great deal of research, which seemed to indicate that rape was somehow being regarded as a lesser crime. It was notable that judgments with this implication were being handed down by both female and male judges. She believed the Committee should take the risk, and make a strong statement. The Courts would have to apply their minds and pronounce on the matters. She was particularly concerned that most rapes were being committed against females, and a substantial portion of those related to children under 16. The Courts had already been afforded a mechanism to deal effectively with this type of crime, but were not using it effectively.

Adv C Johnson (ANC) agreed that the cases spoke for themselves. The problem was compounded by women not reporting rape cases as they knew they would face these difficulties. The Committee had a duty to send the message that it would not tolerate these kinds of attitudes to rape.

Dr Delport indicated that he had no sympathy with those committing crime with any type of violence. He did not believe this legislation was addressing all the issues, which was the reason he had suggested looking at tying the consideration to the consequences to the victim.

The Chairperson reiterated that there were already effective mechanisms in place, but they were being disregarded, especially in relation to rape, by the implementers of justice. Sentencing was all about attitudes. Calling for written reasons why lesser sentences were justified would expose attitudes, particularly in gender-related crimes such as rape. It was not possible ever to have a comprehensive list of circumstances that should not be taken into account. The Nkomo matter had taken the "youth" of the accused into account although he was 29 years old. Other factors such as virility of the accused or the fact that he was employed were also being taken into account, and she did not believe this was correct.

Mr S Swart (ACDP) believed that the Committee should unanimously send out a strong message on rape, and indicate that given the prevalence of rape, such judgments were completely unacceptable.

The Chairperson noted that although some Members were not happy with the wording, it would not be possible to draft something that was completely comprehensive. The Committee would look more carefully at the options before making a final decision, as she recognised that some options did have negative consequences. She agreed that the Committee must send out a message.

Amendments to Section 51(7)
Dr Louw stated that the references to "a child" in this subsection had been amended to "an accused person" in line with other wording with the Bill

Amendment to Transitional clause: new Section 53A
Dr Louw indicated that a new Option 1 had now been drafted, stating that if the accused had been "committed" for sentence by a High Court, then that Court must deal with the matter, and if he had not been committed for sentencing, then the regional court would continue to dispose of the matter. Option 2 was the original wording, that had dealt with Court dates. She said that the National Prosecuting Authority (NPA) had not yet commented on this option.

The Chairperson asked that the NPA be asked by the drafters for comment. Option 1 seemed to provide greater clarity, as well as meeting the expectation on the part of the accused.

New Clauses 5 & 6: Amendment of Part IV of Schedule 2 & insertion of new Schedule 3 into Act 105 of 1977
Dr Louw confirmed, in response to a question from the Chairperson, that the new Schedule 3 reflected the offences that could be committed with a firearm.

The Chairperson asked why the list was not simply contained in Part IV, instead of referring to another Schedule.

Dr Louw agreed it would be possible to do this, and the next draft would reflect the change.

New Clause 8: Amendment of section 21 of National Prosecuting Authority Act 32 of 1998
Dr Louw noted that the words "or amendments to such policy must" had been deleted from subsection (3), so that the new wording read "The prosecution policy must determine the circumstances..". The wording of subsection (4) had also been changed. The reference to policy directives reference was now in a separate sub-section, and the date of three months had been inserted.

Mr Johan de Lange, Principal State Law Advisor, DOJ, indicated that apparently the NPA had mixed feelings about the matter. It was apparently hesitant to put detail into the policies and to specify those instances in which prosecutions must be instituted in the High Court. It was hard to distinguish a policy from a directive when put in writing.

The Chairperson indicated that the prosecuting authority did have the inherent right to prosecute where it wished. However, cases had often not been prosecuted at the High Court, but instead instituted at the Regional Court, in circumstances that had later given rise to stays of proceedings, the necessity for referral to the High Court and trauma to the victims. The NPA had indicated that they were experiencing resistance from the Judges President to instituting these prosecutions in High Courts, apparently because of the shortage of courts. Legislating for a prosecuting policy was intended to assist the NPA by supporting their right to prosecute in High Courts with a policy. She disagreed with the contention that there should only be a general policy, as she did not feel this would address the problem. She felt that the NPA should be asked to submit written comments to this Committee within the next week, to enable the Committee to consider the clause further.

Dr Delport suggested that sub-clause (4) should not read "directives" instead of "policy directives".

The Committee agreed.

Changes to Schedules to correlate with Sexual Offences Bill Schedules
The Chairperson noted that the Schedules to the Sexual Offences Bill referred to rape and compelled rape. She was concerned that Part 1 of the Schedules to this Bill perhaps would need to be amended to tie in more closely with the Sexual Offences Bill. She would discuss the matter further with Dr Louw, and some changes would probably be effected and contained in the next draft. These changes might also affect Part 3 of the Schedule to this Bill.

The Chairperson requested the Department to prepare another draft, incorporating these changes.

Repeal of the Black Administration Act and Amendment of Certain Laws Amendment Bill: Briefing by Department of Justice
Mr Lawrence Basset, Chief Director: Legislation, DOJ, indicated that this short piece of legislation was described in the Memorandum on the Objects of the Bill. He described the background to it. The principal Act had been passed in order to repeal the Black Administration Act (BAA). Because all the provisions could not be repealed at the same time, certain sections were to remain in force in order to avoid a legal vacuum, until other legislation could be passed. Sections 12 and 20 of the BAA dealt with the functions of traditional leaders, and these would be dealt with in other legislation to be drafted. There was a "sunset" clause that was due to expire on 30 September 2007.

Mr Basset said that shortly after the principal Act was put in place in 2005 the Department had started to work on substitute legislation. However, it soon realised that there were huge problems. There were various constitutional issues, and conflicting provincial legislation on the functions of traditional leaders. Black administration applied in some areas of the country, but the whole legislative set up was very disjointed and inconsistent. For instance, in North West, in areas that had formerly belonged to Bophuthatswana, the authority to deal with criminal matters lay with tribal authorities, not traditional leaders as set out in the BAA. Appeals from them lay to special courts in magisterial districts. In the Eastern Cape, in the areas of the former Ciskei, chiefs and headmen had automatic jurisdiction to deal with traditional matters merely by virtue of their appointment, whereas elsewhere that jurisdiction had to be specifically conferred. The appeal processes here were also different.

Therefore, the DOJ decided that any substitute legislation must be informed by a policy framework. The Minister appointed a Task Team, consisting of representative of the Departments of Justice, Provincial and Local Government, and Land Affairs and the South African Law Reform Commission. The Task Team identified various aspects requiring review and was in the process of finalising a document that would form the basis for deliberation and debate.

The consultation process would be launched soon, possibly in the National House of Traditional Leaders. The programme of consultation would be ready shortly. Other role players must also be consulted, who might include the provincial and local offices of Traditional Leaders. The consultation process was earmarked for September and October and hopefully the policy document and the new legislation would be finalised for introduction in November. The Traditional Leadership and Governance Framework Act required this legislation to be dealt with under Section 76 of the Constitution, and it must lie for 30 days for comment at the National House of Traditional Leaders.

The Department believed that the draft new legislation could be dealt with in the National Assembly in February and March, and in the National Council of Provinces in April and May. It had therefore proposed that the deadline for continuation of the relevant sections of the Act would need to continue to 30 June 2008, by which stage all the substitute legislation would have been finalised and would effectively supercede the need for the sunset clause.

Discussion
Dr T Delport wondered if the Department would be able to finalise all the new legislation by 30 June 2008. The dates fixed for extension so far had been calculated on the basis that the Department would have been able to finalise the matters, but this had not happened. He suggested that the extension be for a further year, until 30 September 2008.

Mr Bassett said that the Department had suggested to Cabinet that to be on the safe side the cut off date should be December 2008, but Cabinet was opposed to this. Effectively, the Department had been put on terms and simply had to be ready.

The Chairperson said the delays were embarrassing but unavoidable. She said that she had called for anyone having an interest to make submissions. She asked that the proposed programme must be tabled, so that the Committee would have it on record, and would be able to check on progress.

Mr Swart appreciated the urgency of the matter, but noted that most extensions were for periods of one year. The Committee would be within its rights to suggest a further extension to 30 September.

The Chairperson noted that drafts had been prepared, but that a time period for consultation must be allowed, and this would include the 30-day period once the matter had been tabled in Parliament. She noted that the Committee would be keeping an eye on progress, and if the proposed new legislation was not tabled in November, the Committee could also assist in the consultative process.

Committee business
The Committee would sit on 28 August, once it was known whether any submissions would be received, to debate this Bill. On that day it would also deal with the Constitution Thirteenth Amendment Bill and some matters pertaining to the Judicial Institute and the Judicial Service Commission Amendment Bill.

The meeting was adjourned.