Sexual Offences Bill: briefing by Department of Justice. Parole: briefing by Minister, Department of Correctional Services & Var

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.