Criminal Law (Sexual Offences & Related Matters) Amd Bill: Public Submission; Criminal Law (Sentencing) Amd Bill: briefing
NCOP Security and Justice
30 October 2007
Meeting Summary
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Meeting report
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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