Sexual Offences Bill: briefing by Department of Justice. Parole: briefing by Minister, Department of Correctional Services & Var
NCOP Security and Justice
12 September 2007
Meeting Summary
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Meeting report
SECURITY AND CONSTITUTIONAL AFFAIRS
SELECT COMMITTEE
12 August 2007
SEXUAL OFFENCES BILL: BRIEFING BY DEPARTMENT OF JUSTICE. PAROLE: BRIEFING BY
MINISTER, DEPARTMENT OF CORRECTIONAL SERVICES & VARIOUS PAROLE BOARDS
Chairperson: Kgoshi L Mokoena (ANC)
Documents handed out:
Criminal
Law (Sexual Offences and Related Matters) Amendment Bill [B50B- 2006]
Briefing to Select
Committee: Parole Boards
Department of
Correctional Services Report on Parole Boards
Brandvlei
Correctional Supervision and Parole Board (CSPB)
Free State and
Northern Cape Regional Correctional Supervision and Parole Board
Eastern Cape Regional
Correctional Supervision and Parole Board
Limpopo/North
West/Mpumalanga Regional Correctional Supervision and Parole Board
Gauteng Regional
Correctional Supervision and Parole Board
Kwa-Zulu Natal Regional
Correctional Supervision and Parole Board
Contact Detail:
Correctional Supervision and Parole Boards
Audio
recording of meeting
SUMMARY
The Department of Justice and Constitutional Development guided the
Committee through the first four chapters of the Sexual Offences Bill. The
presentation examined the definitions and sexual offences created in the Bill.
During the discussion, Members sought clarity on the type of consultation done
on the Bill and the criminalisation of prostitution. Furthermore, the Committee
interrogated the type of language used in the Bill and asked whether
trafficking was covered in the Bill.
The Minister of Correctional Services, officials from his department and
various correctional supervision and parole boards (CSPBs) briefed the
Committee on the functioning of parole boards. All the presentations
highlighted the achievements and challenges experienced by parole boards. The
Committee expressed concern about the allegations of corruption levelled
against parole boards. Members also investigated the role of Care Management
Centre’s (CMCs), attitude of judges and political interference. They voiced
concern about the attitude of society, and whether enough outreach work was
being done, and whether the training was sufficient. The problem of political
interference was raised, and Members also questioned the pointers to
rehabilitation, the frequency of meetings, the victims’ input, and the reasons
behind the recent violent protests in Limpopo.
MINUTES
Criminal Law (Sexual Offences) Amendment Bill: Briefing by Department of
Justice and Constitutional Development (DOJ)
Mr Henk du Preez, Senior State Law Advisor, Department of Justice,
stated that this legislation emanated from the South African Law Reform
Commission’s report on sexual offences. The Bill was aimed at reviewing and
amending all aspects of the law relating to sexual offences, and to deal with
all legal aspects in a single statute.
Mr du Preez then took Members through the various clauses of the Bill as
follows:
Chapter1: Definitions and Objects
Sexual Penetration
The State Law Advisor explained that this definition was expanded to
include unlawful oral and anal sex. This development replaced the common law
crime of rape and addressed the gender specific nature of common law rape.
Sexual Violation
The presenter commented that this definition criminalised non-penetrative
sexual or lewd conduct.
Consent
Clause 1(2) described “consent” as voluntary or uncoerced agreement. Clause
1(3) provided the different circumstances in which consent was lacking. The
Justice Portfolio Committee had compared the approaches adopted by different
countries, and thereafter introduced the latter clause into the Bill.
Clause 2 set out the objects of the Bill, which, in broad terms could be
summarised as follows:
To afford complainants of sexual offences the maximum and least traumatising
protection the law could provide;
To introduce measures which enabled the relevant organs of state to give full
effect to the Bill; and
To create offences which would address the relatively high incidence of sexual
offences committed in the country.
Chapter 2: Sexual Offences
This chapter consisted of four parts.
Clause 3 and 4, in Part 1, aimed to codify those offences characterised by acts
of sexual penetration. Two distinct statutory offences were created, namely
rape and compelled rape. Rape was the unlawful and intentional sexual
penetration of a complainant without their consent. Compelled rape resulted
where a person (A) compelled a third person (C) to rape another person (B).
This person (A) would consequently be liable for conviction as a perpetrator
and not as an accomplice.
Clauses 5 to 7, in Part 2, criminalised those acts of a sexual nature that were
non-penetrative. Clause 5 created the crime of sexual assault and replaced the
common law crime of indecent assault. The principles relating to compelled rape
also applied to clause 6 of the Bill, which dealt with compelled sexual
assault. Since the definition of sexual violation implied the involvement of
two parties, clause 7 created the offence of compelled self-sexual assault,
which catered for a situation where a person was compelled by someone else to
sexually violate his or her own body.
Clauses 8 to 11, in Part 3, listed various unlawful sexual activities which
involved complainants who were 18 years and older. In terms of clause 8, a
person who unlawfully and intentionally compelled or caused a complainant over
18 years, without the consent of the complainant, to be in the presence of or
watch the commission of a sexual offence, sexual act or an act of self
masturbation, was guilty of an offence of causing or compelling the witnessing
of such an act. Clause 9 dealt with the offence commonly referred to as
flashing. Clause 10 criminalised the showing of child pornography to a person
over 18 without their consent. Clause 11 targeted the client of an adult
prostitute. This clause therefore, not only confirmed the existing law, but
also addressed the unacceptable consequences of selective application of the
law, as pointed out by the Constitutional Court. In terms of the Bill, such a
client, and not only the prostitute, was now liable for prosecution.
Clauses 12 to 14, in Part 4, replaced the common law crimes of incest,
bestiality and necrophilia, in so far as such violations were of a sexual
nature.
Chapter 3: Sexual offences against children
This chapter was intended to address the vulnerability
of children and create offences where persons engaged in sexual conduct with or
targeted against children. The chapter was divided into three Parts.
Clause 15 criminalised acts of sexual penetration with children over 12 years
of age, but under 16 years, despite their consent.
Clause 16 focused on acts of sexual violence perpetrated against children, in
the same age group, despite their consent.
Clauses 17 to 20, in Part 2, created crimes to address activities that were
characterised as of an exploitative sexual nature. Clause 17 was similar to
clause 11, and covered all the circumstances in which a child could be sexually
exploited. All role players, such as pimps, clients and those who benefited
from the sexual exploitation of a child would be liable under this provision.
Clause 18 outlawed the sexual grooming of children. Clause 19 prohibited any
person from exposing or displaying child pornography and material of a sexual
nature, as classified by the Films and Publications Act, to persons younger
than 18. Clause 20 targeted the different role-players that were actively
involved in engaging or using children for pornographic purposes.
Clauses 21 and 22, in Part 3, created crimes similar to those stipulated in
clauses 8 and 9, but in respect of children.
Chapter 4: Sexual offences against mentally disabled persons
The offences relating to mentally disabled persons
were identical to those articulated in the previous chapter. However, the
clauses dealing with statutory rape and statutory sexual assault were omitted
because mentally disabled persons could not provide consent.
Due to the time constraints, the remainder of the Bill was not presented.
Discussion
The Chairperson remarked that this sort of briefing would take days to
complete.
Mr S Shiceka (ANC, Gauteng) complained that the presentation was protracted. He
would have preferred a broad overview of the main issues and controversial
amendments. He congratulated the Department for its approach in dealing with
the sexual violation of adults.
Ms F Nyanda (ANC, Mpumulanga) accused the Department of appeasing NGOs and
adopting a Western approach in the drafting of the Bill. Thereafter, she sought
to establish whether the Department considered the views of the majority of
African people when it developed its policy on the Bill.
Ms Dellene Clark, Researcher, South African Law Reform Commission, stated that
extensive public hearings were held on the Bill. In addition, workshops were
held in rural areas and submissions were provided by NGOs. She concluded that
all those deliberations were factored in during the extensive discussions and
amendment of the Bill at the Portfolio Committee.
Mr Shiceka criticised the type of language utilised in the Bill. He argued that
it was inaccessible.
Mr Z Ntuli (ANC) echoed the previous speaker’s comments about the sort of
language employed in the Bill.
Mr Henk du Preez admitted that the Bill used difficult and complicated
language. However, he countered that many terms could not be explained in a
simpler manner.
Mr Z Ntuli (ANC, KZN) sought an explanation on whether prostitution should be
viewed as a crime, as it involved consent between two parties. He was under the
impression that there were discussions aimed at decriminalising prostitution.
Ms Dellene Clark confirmed that the South African Law Reform Commission was
working on a report regarding this issue.
Mr Shiceka queried whether certain cultures, which allowed cousins to marry,
were guilty of incest.
Mr Henk du Preez declared that this provision was not unusual, as it confirmed
the existing common law provision on incest.
The Chairperson posed two questions. Firstly, he asked how liability would be
apportioned in the case of compelled rape. Secondly, he interrogated whether
men could be raped by women.
Mr Henk du Preez explained that a person who compelled another to rape would no
longer be considered as an accessory, but a perpetrator. Concerning the latter question, he answered
in the affirmative.
Mr Shiceka enquired whether clause 11 settled the guilt of the client of an
adult prostitute.
Mr Henk du Preez replied in the affirmative. Furthermore, he explained that the
Constitutional Court held that the law already criminalised a client if he or
she engaged the services of a prostitute. This clause therefore, not only
confirmed the existing law, but also addressed the unacceptable consequences of
the selective application of the law.
Ms Nyanda wondered whether certain cultures, which allowed women to expose
their breasts, would be guilty of contravening clause 9 of the Bill, which
dealt with flashing.
Mr Henk du Preez responded that such a determination would only be arrived at
after considering the relevant facts and circumstances of the case.
The Chairperson commented that bestiality was rife in the Limpopo area. He
hoped that this legislation would eradicate this sick practice.
Mr Henk du Preez revealed that the Department was aware of this problem in that
province.
Mr N Mack (ANC) sought clarity on whether the Bill catered for the trafficking
of persons.
Ms Dellene Clark confirmed that a more comprehensive legislation on trafficking
was pending. In the mean time, a transitional arrangement was reached, to deal
with the trafficking of persons for sexual purposes in the Bill.
Members unanimously voiced the hope that this Bill would address the high
levels of sexual violence in the country.
The Committee concluded the discussion on the Bill. It proceeded to interact
with the Department of Correctional Services and the various parole boards that
appeared before it.
Parole Matters : Opening Remarks by
Chairperson
The Chairperson welcomed the Minister of Correctional Services, together
with his delegation, and the various parole boards, and indicated that the
meeting had been called as a result of several complaints from families and
prisoners regarding the inconsistent application of the laws governing parole.
Accusations were also levelled that many parole boards were corrupt. It was
hoped that this interaction would shed light on some of the Committee’s
concerns.
Remarks by the Minister
Minister Ngconde Balfour, Minister of Correctional Services, welcomed the
opportunity to engage the Committee on the functioning of the parole boards and
on some of the charges levelled against them. He indicated that most parole
board leaders had been recently appointed. Members of parliament were involved
in the interviews to select all the chairpersons and vice- chairpersons of the
parole boards. These individuals received continuous training so that their
services could be standardised and enhanced.
The Minister emphasised that each case was treated differently and that the
parole boards, amongst other factors, considered the progression and
participation of the inmate in programmes offered by the respective
correctional facility. Parole Boards were concerned about the case management
system. This system was described as cumbersome and in need of a revamp. The
Parole Review Board was described as a separate entity, which focused on
appeals from inmates who were denied parole. Moreover, the role of the Care
Management Committees (CMCs) was categorised as essential.
The Minister further highlighted the issue of social integration. Imbizos were
held with communities and civic structures, in order to source their opinions
and to educate them on the work of the Department. He confessed that in some
instances, persons in the employ of correctional services, incorrectly,
encouraged the expectations of the offenders. In conclusion, he was adamant
that officials who allowed themselves to be corrupted
would be disciplined appropriately.
Briefing by the Department of Correctional Services (DCS)
Mr James Smalberger, Regional Commissioner Western Cape, DCS, identified
some of the challenges experienced by parole boards. He also discussed some of
the steps that were taken to address these challenges.
Parole Boards were struggling to appoint people because of the strict criteria
for selection, and as a result had high vacancy rates. He informed the
Committee that the Department was considering relaxing the criteria to solve
this matter. The lack of standardisation and uniformity caused concern. Hence,
the current guidelines were being reviewed (by the Department) to tackle this
issue. The current training programme was deemed insufficient. Consequently, a
decision was taken to intensify the tuition provided, to ensure that a certain
standard was maintained. The lack of community involvement and of appropriate
infrastructure impeded the work of the boards. Lastly, the interface of parole
boards with the case management system was regarded as critical to the success
of the entire parole system.
Mr Piet de Bruin, Deputy Director: Parole Board Facilitation, DCS, described
the background, function and composition of parole boards.
Diagrams were used to illustrate the statistics of offenders, who were either
sentenced, not sentenced or incarcerated, in the different regions. A similar tool was used to show the gender
breakdown of offenders and crime categories. Additionally, the report itemised
the number of paroles granted by the different regional parole boards in the
previous financial year.
The presentation summarised the training provided to the parole boards.
Furthermore, it analysed the staffing and facilities of the different regional
boards.
Briefing by Limpopo/North West/Mpumalanga Regional
Correctional Supervision and Parole Board
Mr J Mukwevho, Chairperson, Thohoyandou Correctional Supervision and Parole
Board, briefed the Committee on the achievements and challenges of the regional
boards. His presentation also included an explanation on the reviewing
mechanism in the parole system (see attached presentation)
Briefing by Gauteng Regional Correctional Supervision and Parole Board
Mr M Jones, Chairperson, Johannesburg Correctional Supervision and
Parole Board, briefed the Committee on the achievements and challenges of the
regional boards. Furthermore, his submission looked at the rehabilitation path
followed by offenders.
Briefing by Kwa-Zulu Natal Regional Correctional Supervision and Parole
Board
Ms Adams, Chairperson, Durban Correctional Supervision and Parole
Board, briefed the Committee on the methodology undertaken by the regional
boards. Also, she discussed the challenges and the steps taken to address them.
Discussion
Ms Ntuli voiced concern about the attitude of society, regarding the
parole boards. She wondered whether outreach programmes were established to
make communities aware of the work of the parole boards. Lastly, she suggested
that ward committees be approached for assistance.
Ms Adams revealed that her parole board organised several successful community
outreach events.
Mr A Tutuse, Chairperson, Colesberg CSPB, believed that politicians and the
media had helped to create a negative impression (of parole boards) to the
community.
Ms M Mothobi, Vice Chairperson, Kroonstad CSPB, pronounced that in terms of her
experience, ward councillors were unwilling to assist parole boards.
Ms N Nkewu, Chairperson, Allandale CSPB, contradicted the previous speaker’s
assertion. Furthermore, she disclosed that her board often travelled long
distances to engage with communities.
Mr Shiceka observed that the training provided by DCS (to parole boards) was
quite intense.
Mr N Mack (ANC, Western Cape) advised that board members should be trained on
corruption.
Mr James Smalberger and Mr Piet de Bruin agreed to include this in the training
manual.
Dr F van Heerden (FF, Free State) enquired how parole boards dealt with
political interference.
Mr T Mafu, Chairperson, Pietermaritzburg CSPB, acknowledged that the parole
boards were often confronted by this problem when dealing with former political
prisoners. He however maintained that they were guided by specific procedures
and did not yield to any pressure.
Mr M Jones added that he was against any political interference.
Dr van Heerden sought clarity on whether a victim could also appeal to the
Review Board.
Mr Piet de Bruin answered in the affirmative.
Dr van Heerden asked whether it was easy to determine if an inmate was
rehabilitated.
Mr Erns Kriek conceded that it was difficult know for certain, because inmates
attempted to manipulate the boards.
Dr van Heerden felt uneasy about the comments articulated by the Kwazulu Natal
CSPB, in their presentation, in which they criticised the attitude of judges.
He believed that this was interference, by the executive, in the affairs of the
judiciary.
Ms Adams asserted that she respected the decisions of the courts. However, she
was perturbed by the attitude of indifference demonstrated by certain judges
and magistrates regarding conversion applications.
Mr James Smalberger cautioned against blaming the entire judicial system for
the mistakes of a couple of judges, who operated in a specific area. He
expressed satisfaction with the level of cooperation between patrol boards and
judicial officers.
Ms Nyanda sought to determine how many disabled persons were appointed as
chairpersons or vice chairpersons in the various parole boards.
Mr Piet de Bruin commented that he was aware of only one disabled person who
had been appointed. The Committee was requested to refer such persons to DCS.
Mr J Jonkers, Vice Chairperson, Voorberg CSPB, was convinced that parole boards
were doing a “hell of a job” to market DCS. He argued that they did not get
sufficient recognition. Lastly, he called for the deepening of the relationship
between DCS and the parole boards.
Mr James Smalberger underlined that were several centres of excellence. Those
needed to be used as flagships and replicated throughout the country.
Mr M Mzizi (IFP, Gauteng) applauded the parole boards for doing outstanding
work.
The Chairperson queried how often the CMCs, parole boards and treatment
committees met.
Ms Adams answered that her parole board met on a quarterly basis or whenever a
need arose.
Mr Jones added that his board met on the first Friday of every month.
Dr van Heerden observed that the Department’s solution for filling vacant posts
would result in the lowering of standards.
The Chairperson scrutinised whether the victims’ input influenced some of the
decisions taken by the parole boards.
Mr Simon Zamisa, Chairperson, Bethal CSPB, stated that the victims’ input was
useful, but did not dictate the decision of the parole board. It only influenced
the parole conditions.
The Chairperson wanted details about the recent violent protests that took
place in one of the correctional facilities situated in Limpopo.
Ms K Ramutla, Chairperson, Rustenburg CSPB, explained that offenders, who were
guilty of violent and aggressive crimes, were behind the protests. They
demanded to be released after serving one third of their sentence. The speaker
informed the protesters that it was only a consideration paragraph, and that
parole was not a right but an incentive.
The Chairperson repeated that the Committee had received several complaints,
accusing the parole boards of corruption. It was also alleged that parole
boards erroneously released offenders and simply adhered to the “one third of
sentence served” principle. These grumbles emanated from inmates, traditional
leaders, families and station commanders.
Mr Erns Kriek replied that in terms of the law, the Department was obliged to
consider an offender (for parole) once he had served one third of his sentence.
Mr Mukwevho contributed that offenders were only released (on parole) once they
had served their sentence in terms of statutory provisions, and after the
parole board had exercised its discretion. Moreover, he viewed corruption as a
serious offence that should be reported to the police.
Mr Mafu countered that it was difficult to corrupt boards because you would
have to bribe the entire CMC.
Mr Piet de Bruin admitted to the allegations announced by the Chairperson. Some
wrongdoing occurred due to a lack of understanding. He added that the
Department reviewed many of these cases.
Mr James Smalberger echoed the sentiments expressed by his colleague. He
promised to bring this to the attention of the National Commissioner.
Mr Mack interrogated whether parole boards were truly independent. He wondered
who oversaw them and disciplined them.
Mr J Setshedi, Vice Chairperson, Zonderwater CSPB, complained that DCS wielded
all the power. They owned and controlled all the facilities and materials used
by the boards. This led to a lot of confusion and “bumping of heads”.
Continuing on the same theme, Mr Mack asked who paid the board members and if
that remuneration was sufficient to prevent them from being susceptible to
corruption.
Mr J Pillar, Vice Chairperson, Allandale CSPB, asserted that he was against any
kind of corruption. Moreover, he confirmed that their remuneration was
adequate.
Mr James Smalberger claimed that parole board members were subjected to the
same disciplinary procedures as other correctional officers.
Mr Mack wondered how CMCs were constituted.
Mr Erns Kriek answered that CMCs were established in all prisons. They
consisted of the chairperson, his deputy, two clerks and officials, such as
social workers and psychologists, who were involved in the treatment plan. He
explained that a sentence plan was drawn up for the offender to determine which
programme would suit him. This sentence plan was reviewed on a regular basis,
and changed if required. It was important that the offender agreed to the case
management plan.
Mr J Masimilla, Chairperson, East London CSPB, notified the Committee that
because of the rural nature of the province, there were not enough
professionals to help in the rehabilitation of offenders. He hoped that the
Committee would provide assistance on this critical matter.
Ms B Bushwana, Chairperson, Brandvlei CSPB, opined that education was not a
priority in the management centres. The Committee’s support was needed to
transform this.
Ms V Luzipho, Chairperson, St Albans CSPB, thanked the Committee, on behalf of
all the different parole boards. They valued the interaction and appreciated
the Committee’s support.
Mr James Smalberger stated that the interaction came at the right time. It
afforded DCS the opportunity to improve and better its systems. The current
parole system still had problems but it was considerably better than the old
one.
Concluding Remarks by the Committee
Mr Shiceka remarked that the Committee was excited to see that the “tide
was beginning to turn”. He also advised that the Committee, DCS and the parole
boards to work “closer together” to change the perception of the community.
The meeting was adjourned.
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