Criminal Law (Sexual Offences & Related Matters) Amd Bill: Public Submission; Criminal Law (Sentencing) Amd Bill: briefing

NCOP Security and Justice

30 October 2007
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Meeting report

SELECT COMMITTEE SOCIAL SERVICES

SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
24 October 2007
CRIMINAL LAW (SEXUAL OFFENCES AND RELATED MATTERS) AMENDMENT BILL: DELIBERATIONS

Chairperson:
Kgoshi L Mokoena (ANC, Limpopo)

Documents handed out:
Criminal Law (Sexual Offences and Related Matters) Amendment Bill [B50B- 2006]
Committee Amendments to the Bill
Consortium on Violence Against Women submission to National Council of Provinces

Audio recording of meeting

SUMMARY
The Department informed the committee of all the amendments that had been made to the bill since their deliberations the previous Friday. After all the amendments were gone through the committee looked at the bill clause by clause and, due to time constraints, halted deliberations at clause 18. They were in agreement that all the clauses up until clause 18 were clear and did not require further querying.

MINUTES
The Chair welcomed the committee and the visitors and he asked the State Law Advisor from the Department of Justice and Constitutional Development (DOJCD) to address the committee before he delved into the amendments the department had effected to the bill.

Amendments by the Department of Justice
Mr H du Preez (State Law Advisor, DOJCD) told the committee that before going through the amendments, he wanted to draw their attention to the following matters, firstly the amendments they were going to look at were all in the document handed out to them.

Secondly, he wanted to draw their attention to the fact that the correctional services amendment bill had just been approved by the National Assembly and the commission of correctional services was now the national commission of correctional services. As such they were instructed by the department to make changes to the bill to line up with this new development, and they had done so by providing that they should insert the national commission of correctional services for every reference to the commission for correctional service in the bill.

Lastly there were concerns from the department about clause 18(1) (a), especially with relation to the word ‘article’. The argument advanced was that anyone who was bona fide giving sex education to the children was going to be criminally liable if the phrasing of the clause was left as was. To remedy this they had decided to bring in a new subsection (a) that would read out as clause (a) on page 3 under clause 18 and the current (a) (b) (c) would be (b) (c) (d) respectively. He said that the schedule was the same as that discussed the previous Friday and he did not see the need to repeat what has already been done.

He then launched into all the amendments that had been done in hierarchal order

Clause 1(1) (Definitions)
Mr on Preez said that there was the insertion of the definition of ‘child pornography’ after the definition of ‘child’. 

There was also the insertion of the definition of ‘porn’ just before ‘Republic’.

Clause (1) (1) (iii)
The word ‘the’ which began the sentence in that sub-clause should be omitted as it was redundant.

Clause 1(1) (3)
The commas after 3 and after 6 should be omitted.

Clause 10
The definition of ‘child porn’ in clause 1 made the statement as contemplated in paragraph (a), (b) or (c) of section 29 redundant so the statement should be omitted

Clause 11
The number (1) should be omitted because clause 11 did not have any sub clauses.

Clause 13 (b)
The phrase ‘or with’ should be inserted after ‘of’ because it would result in a lacuna, especially if a person uses an animal to masturbate and they wanted to cover this base.

Clause 17
The omission of the fundamental principle of ‘with or without the consent of B’ should be amended to read the particular phrase in after (B) in sub clause 4, 5 and 6(a).

Clause 18
The amendment had already been highlighted in Mr on Preez’s opening remarks to the committee and it was on the word article. In essence Mr on Preez remarked that they were not changing the substance of the clause.

Clause 18 (1) (a)
After the word ‘publication’ there should be an insertion of the word ‘film’ and a substitution of the word ‘child’ with ‘(B)’.

Clause 18(1) (b) (ii)-(iii)
Before the word ‘pornography’ there should be an insertion of the phrase ‘child pornography’ and in after ‘publication’ the word ‘film’ should be added.

Clause 18( 2) (a)
Insert ‘child pornography’ before the word ‘pornography’.

Clause 19
Clause 19 had been rejected and the new clause 19 was in the document on page 5.

Clause 20
The previous clause was re-written and the amendment was the new clause 20 on page 6.

Clause 21(3)
There should be a correction of punctuation and after ‘self masturbation’ there should be a comma

Clause 23 (3) (a)
In the line after the word ‘caregiver’ to insert a comma.

Clause 24
Before the word ‘pornography’ to insert the words ‘and omit’ the statement as contemplated in paragraph (a)(b) (c) of section 25 and also to insert ‘film’ after the word ‘publication’.

Clause 24 (2) (d)(cc)
After the word ‘sequence’ omit the words ‘as contemplated in section 26(1)’ and substitute with ‘child pornography’.

Clause 25
The previous clause was re-written and the amendment on page 7 was the proposed new clause for 25.

Clause 26
The clause was also re-written.

Clause 32 (1)
To omit the word ‘sex’ the number of times it appears and to substitute ‘police officer’ with ‘investigating officer’.

Clause 32(3) (b)
Paragraph (b) should apply to both (a) and (b) so the proposed amendment was to take paragraph (b) to the next line and so that it applies to both (a) and (b) and to align the next line to the margin.

Clause 40
In line 31 to omit ‘any’.

Clause 40(b)(ii)
Line 26 after employed the comma should be omitted to be substituted by ‘and’. In line 1 to omit licenses and substitute for licenses in line21 to omit’ any’.

Clause 41(1)(c)
The amendment is the substitution of ‘license’ with ‘licence’; and after the word ‘child’ to insert ‘where children are present or congregate’.

Clause 41(2)(d)
After ‘disabled’ to insert or ‘where persons who are mentally disabled are present or congregate’.

Clause 44(e)
Change the spelling of ‘license’ and to insert ‘or persons who are mentally disabled after children’.

Clause 45
To omit all the words after (1)(b) up to and including ‘Register.”

Clause 45(2) (c)
To omit 50(1) and to substitute it with 41.

Clause 45(4)
Change the numbering of Clause 45(4) to 45(3) and in line 45 after the word ‘section’ to insert a coma.

Clause 46 (1)
In line 50 after the first ‘is’ there should be an insert ‘or was’, in line 54 after committed the insert should read ‘or allegedly committed’ and in line 55 after conviction to insert ‘or finding’

Clause 46(3)
The amendment is a coma after (2).

Clause 47
To omit ‘license’ and to substitute it with ‘licence’ wherever it appears in the clause and to insert a coma after line 39.

Clause 48(3)
The amendment is a comma after the word ‘section’ in line 39.

Clause 49(b)
The amendment is the substitution of 50 for 48 and after the 45th line to substitute ‘the’ with ‘The’

Clause 49 (b) (iii)
The correction of ‘license’ with ‘licence’.

Clause 50(b) (iii)
To omit all the words after (a)(ii) and to insert ‘whether committed before or after the commencement of this Chapter’.

Clause 50(5) (a)
After the word ‘the’ to insert ‘National’ so that it reads ‘the National Commissioner of Correctional Service’ and after ‘child’ to insert ‘including an offence contemplated in section 14 of the Sexual Offences Act, 1957 (Act no. 23 of 1957)’ and after ‘1957’ to omit ‘(Act No. 23 of 1957)’.

Clause 50(5) (b)
To insert ‘National’ after ‘The.’

Clause 50(6) 
In line 23 after ‘possible’ to omit ‘a conviction for a sexual offence against a child’ and to substitute ‘an offence contemplated in section 14 of the Sexual Offences Act 1957’ and after the second ‘for’ to omit ‘an’ and substitute ‘a sexual’ and after ’including’ to insert a coma.

Clause 55(c)
To insert the following phrase ‘after the offence’ at the end of the sentence ‘and may be liable on conviction to the punishment to which a person convicted of actually committing that offence would be liable’.

Clause 56
The insertion of the phrase ‘and sentencing’ in lines 30 and 33; and in 35 to omit the ‘and between 6 and 7’ to be replaced with ‘or 7 ‘; and insertions of the sub-clause 6 and 7 on page 13-14.

Clause 66
To omit al the words up to and including ‘manner’ in line 58 and to insert the phrase ‘with a view to ensuring that as many police officials as possible are able to deal with sexual offence cases in appropriate, efficient and sensitive manner’. After 3(2) (b) to omit all words up to an including ‘results’ in line 7and after line 7 to insert ‘as contemplated in section 3(1) (e) in order to ensure the confidentiality of such test results’

Clause 67
To omit ‘member’ and to substitute it with ‘members’.

Clause 68
After ‘corpse’ in line 6 to omit al the words up and including ‘repealed’ in line 7 and after line 7 to insert ‘is hereby repealed’

Clause 70(2) (b)
The numbering (a) (b) (c) should be replaced with Roman numerals numbering from (I)-(VI).

Clause 71(4) (b)
The numbering was supposed to be corrected and (v) and (VI) should read (IV) and (v)

Discussion
The Chair passed the motion that they go through the bill clause by clause which was seconded by Mr Ntuli and Ms Nyanda.

Clause 4
The Chair asked if the liability of the person who was compelled to perform a rape was the same as the compeller.

Mr on Preez replied that the person who was compelled would be able to raise compulsion as a defence and, as such, would not be held liable but since the rape was committed there had to be a perpetrator and hence the clause meant that in the case of compulsion the compeller would be guilty of an offence.

Ms F Nyanda (ANC, Mpumalanga) asked why, in part three, a distinction was made relating to the age of 18 years - but then claimed that legislation was for all woman - she found this confusing.
 
Mr du Preez replied that these offences were in respect to adults, but they had added specific provisions and chapters that dealt with sexual offences in respect of children.

Clause 10
Ms Nyanda and Mr Z Ntuli (ANC, KwaZulu-Natal) remarked that the wording in clause 10 was such that it was going to make striptease illegal as there was an exposure of flesh for sexual gratification.

The Chair flagged this provision to return to later.

The Committee was in agreement that the following clauses were clear and needed no changes
Clause 1, 2, 3, 4, 5, 6, 7, 8, 9, 11, 12, 13, 14, 15, 16, 17, 18.

The meeting was adjourned.

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