Sexual Offences Bill: deliberations; Correction Services A/B: briefing

Meeting report

Chairperson: Kogoshi L Moekona (ANC, Limpopo)

Documents handed out
Sexual Offences and Related Matters Amendment Bill [B50B- 2003]
Correctional Services Amendment Bill [B 32-2007]
Committee Report Criminal Law (Sexual Offence and Related Matters) Amendment Bill
Outline Correctional Services Amendment Bill [B32-2007]
Departmental Motivation For Correctional Services Amendment Bill [B32-2007]
Summary and Analysis of Correctional Services Amendment Bill [B32-2007][awaited]
Analysis of the 2006/07 Annual Report of South African Police Service [Part 1][Part 2]

Audio recording of meeting [Part 1][Part 2]

SUMMARY
Legal Advisers from the Department of Justice and Constitutional Affairs and the South African Law Reform Commission, in tandem, addressed the Committee on the constitutional elements in the Bill and in response to questions, observations and comments from the Members present at the meeting undertook to revert to their respective headquarters for further consideration of the implications and ramifications of the proposals, especially regarding the compulsory HIV testing of alleged perpetrators.

The Minister for Correctional Services also addressed the meeting and, ex tempore and without notes, summarized the Correctional Services Amendment Bill, whereafter he departed and left Members of the Department of Correctional Services to itemize the individual proposals to the Committee.

MINUTES
Deliberations on Sexual Offensives Bill

The Chair commenced the business by advising all concerned that Mr M Mzizi (IFP, Gauteng) would be leaving to present a mandate but would return thereafter and that the purpose of the meeting is to address the issues raised at the last meeting, at which the Legal Advisers had undertaken to reconsider, and if necessary seek further legal opinion, on some issues raised. He expressed the opinion that without further ado they should get down to business and he called upon Mr H du Preez, Department of Justice and Constitutional Development Senior State Law Advisor, and Ms D Clark, South African Law Reform Commission (SALRC).

Mr du Preez began by saying that from a previous meeting further discussion is required upon the questions for Bestiality, Flashing, Sexual Grooming and compulsory HIV testing of the alleged perpetrator and added that he felt replies were not apposite at this stage.

The Chair then asked the Members to raise their further concerns.

Mr Mzizi added that some of his concerns about the Bill are the proposals regarding age and the age of customary or indigenous marriage and he expressed the opinion that if there is conflict between the two then “woe betide us!”.

The Chair stated that the Bill contained controversial issues, and he referred to the question of the age of consent which in this Bill is 16 years but in terms of another Act girls from the age of 12 years are able, without the knowledge and consent, of the parents to access “those pills” (contraceptives). He could not see a justifiable reason for the contradiction and did not know such is provided for and looked to the department for enlightenment. He added that in constituency work he, for one, felt baffled and did not know what to say. He wanted the approach of government to be consistent and he asked where Mr du Preez was on the matter.

Mr du Preez initially referred to Clause 13, the bestiality clause.

The Chair asked whether the onus remained on the State.

Mr du Preez said that he summarized the feelings of the Members as being a concern that the innocent would be prosecuted, but he added that that is not how prosecutors set about their work of prosecution. He stated that any person compelled by someone else to do something or anything would become a witness for the state and would not be prosecuted. As an example he gave the assurance that any person holding a weapon threateningly against another person by which such second person is forced for example to penetrate another person sexually would be charged criminally and the penetrator would be a State witness, not a co-accused. Thus if A forced by any means B to penetrate C sexually then B is merely A’s instrument and A would be charged criminally.

The Chair said it now became clear to him and Mr Mzizi strongly agreed upon the clarity.

The Chair then referred to Clause 8, the masturbation clause and asked whether the onus of proof is still on the Sate and for masturbation to be explained.

Mr du Preez then said that it is an unfortunate recent social phenomenon that people force others, alone or in groups to masturbate in front of at least one other person. Such directing persons are the object of the Bill. Further, that many intruders are not satisfied to break into dwellings and rape the female or male inhabitant/s but they collect the other persons resident in the dwelling who may be present at the time, irrespective of whether children or spouses or partners of the person raped and rape such in the presence of the other dwelling inhabitants, compelling such to watch the rape process. He added that he is of the opinion that the provisions of Clause 8(1) provides for such situations. He added that this is psychological rape and he believed that Clause 8 (1) criminalises such activity. In terms of Clause 8(2) and person forced to watch sexual penetration of another does not him/her/self commit a crime. He further added that the criminalising of a person, A, who compels another person, B, to be present while C either masturbates or is forced to masturbate, a very important addition to criminal law.

Mr Mzizi then interjected that it might be important to add it but he asked to what degree rape is rape, even if the doer screened himself, and he asked why masturbation and rape of a mother in the presence of her children is included. He is of the opinion that rape is rape.

Mr Z Ntuli (ANC, KwaZulu-Natal) said it seemed to him that there is an attempt to include two actions within the definition of rape, and they are compelling another person to watch a rape and compelling another person to look at you while you masturbate, such as a lady while pleasuring oneself.

Mr Mzizi interjected that only a lunatic would do that.

The Chair then said that the clause was back again and it had been requested to be left out previously, together with Clause 7. He then referred to “sexually suggestive and/or lewd” and stated that often he felt uncomfortable watching artistes performing in person but more often on TV, especially in front of or with is children. Some of the young girls performing are very disturbing and the music itself is terribly suggestive. Frequently he is forced to walk away and leave his children to watch because he feels embarrassed. Mr Ntuli interjected that he is not compelled to watch. Ms F Nyanda (ANC, Mpumalanga) said she understood that even Madiba has expressed disquiet about such performing when he had been forced to sit through such performances. Mr N Mack (ANC, Western Cape) said the Elvis had stated it all.

The Chair then summarized Clause 8 as being that if someone is forced to watch masturbation or if someone is forced to participate in masturbation these are both offences.

Mr Mzizi asked what about in a closed room.

The Chair raised the question of flashing as a result of which there was an interchange between Mr Mzizi and Mr Ntuli regarding treatment by a medical practitioner and consequent complaints.

Mr du Preez asked the members to concentrate upon the question of unlawfulness. He added that what a doctor did, customarily, was with the permission of the patient and consequently had no unlawfulness and was not prosecutable, for it was a lawful action however, if the doctor exceeded the bounds or overstepped the mark there could be unlawfulness involved.

The Chair wanting to conclude asked what would be the position for anyone, wanting to look and smell nice, and taking a shower is observed by another person in the course of the shower or consequent toweling and he asked whether this amounted to flashing.

Mr du Preez then added that this bill endeavoured to take all the common law and the previous statutory sexual offences or crimes and both repeal and consolidate them in one statute. He gave as his opinion that Clause 9 did not contemplate the Chair’s shower example within the ambit if illegality of crime. He added that the common law did not contain the crime of flashing and instead flashing had fallen under either public indecency or crimen injuria. As a matter of public policy the decision had been taken to consolidate such crimes and combine them as sexual offences in one Bill, which hopefully would be passed by the parliamentary process, and enacted.

Reverting to the shower example he stated that what is necessary is the intent with which such an action is performed and he is of the opinion that the definitions and clause 9 adequately covered this.

Ms Nyanda said that there are many occasions, especially in traditional or cultural activities when the young girls, between 12 and 20 plus do not cover their breasts and she wanted to know whether this is what is called flashing.

Mr Ntuli added that at soccer matches it frequently occurred that one team’s members wished to show their opinion of the other team’s members/team of supporters and virtually undressed to do so.

Mr Mack then added that there are many traditional or cultural events when persons are undressed or partially dressed and he wanted to know whether the Bill is intended to curtail such activities.

Mr D Worth (DA, Free State) asked about the young persons who sun tan topless on Clifton and other beaches and wished to know whether such would fall within the ambit of the Bill as lewd flashing, and consequently be criminal.

Mr du Preez said that it had not been possible to include within the ambit of the common law rules that governed every variety of human activity but he emphasised that the question of intent revealed the unlawfulness aspect of the behaviour and he expressed confidence in the integrity of the prosecutorial staff to differentiate between legitimate, or past and current and/or emerging cultural practice and unlawfulness. He added that the drafting had been done within the parameters of the requirements for a crime. Further, he did not think that topless tanning on Clifton beach would in all likelihood be prosecuted and that the intention behind the Bill was the compulsion, or forcing, of children to participate or watch inappropriate activities.

Mr Worth said that it seemed to him that there is no certainty, that far too much leeway is left to the discretion of the prosecution and/or the interpretation by the Court and that this could give rise to problems.

Mr du Preez then replied that if that is so, then the culpability as practiced by the common law is not correct and although there are dangers with regard to drafting the Bill the justification remained the same

Mr Navarra, Legal Advisor, then stated that he agreed with Mr du Preez, so far, and wondered how the Prosecutors would interpret the lawful and intentional aspect of such activities as topless tanning or traditional dancing, without which there can not be a crime. He could accept that the exposure of genital areas, the anus or breasts by B to C at the instigation of A is an offence but he had difficulty if a person showering and toweling off in their own bedroom is viewed by a 12 year old boy or girl is to be charged with the offence of exposure, but he could accept that if there is the element of sexual gratification involved a criminal prosecution could follow. He asked himself what elements excluded unlawfulness.

Mr du Preez asserted that whether there is sexual gratification or not what is important for the prosecutor to consider is the element of unlawfulness and he felt that the first example above fell squarely in the within the elements of unlawfulness.

Ms Clark then added that intent is the important question. She added that empirical research revels that 90% of sexual abuse of children took place within the confines of the home.

Mr du Preez reasserted that the prosecutor would have to make a judgment call and added that he felt that Clause 8 faced the same problems. He sketched the situation of where a couple is engaged in sexual activity in their bedroom in which also sleeps a child, be it a month old baby or a six year old. Should such persons be prosecuted, and he felt not unless the persons were engaging in the sexual activity to shock and/or deprave the child.

Mr Navarra said that for a crime to take place a complaint had to be lodged. If there is a complaint then even the last example would warrant prosecution. He added that it is the intention with which the clothes are taken off that is important. If negligent and negligence is proved then there is no crime but if there is intention, no matter of what type, then it is a criminal action and prosecution should follow.

Mr du Preez then added that a prosecutor would consider the provisions of Clause 22 in addition to the provisions of Clause 9 before a prosecution ensued. He added, or conceded, that the Clause had been wrongly drafted and said that Clause 22 introduced an element of strict liability and that the unlawfulness would be determined by the facts of the case. He conceded a need to clarify this clause

Ms Clark then added that the whole question is one of unlawfulness and that for women to expose her breast while or intending to feed a child would not constitute unlawfulness while similar extent of exposure would be unlawful depending on the intent. A legitimate purpose negates unlawfulness.

The Chair suggested that this issue be flagged for attention later.

Mr Worth then summarised his understanding of the possible scenarios as being whatever is done needs to be interpreted and if it is established that the action had been done for pleasure then there is a crime. He cautioned that he felt that far too much is left to the discretion of the prosecutors and courts and that there is no certainty arising from this Bill. This was a problem for him.

The Chair repeated that it is a difficult question and should be flagged for later attention. He proceeded to add that in certain indigenous cultures practice and traditions had been accepted since time immemorial but might now become criminal and suggested that attempts be made to see if the draft can be redrafted.

He suggested that the meeting consider Clause 13, the bestiality Clause, and as no Member had anything to raise this was left. It was also agreed that sexual activity with a corpse is not desirable and present no problem

Clause 18 was next considered. The Chair said that there was agreement that sexual grooming for criminal purposes was a “no no” but cultures varied and what is acceptable in one culture is objectionable in another cultural setting. He suggested that 90% of happenings are innocent but 10% seem to be criminal.

Mr du Preez stated that there needed to be a cautious approach. He inferred that other legal advisors too did not want to restrain any cultural practices. But he gave the example of a teacher in the normal course of his/her duties giving sexual education at a school from a book. Hopefully, this would be innocent, although held in questionable taste by some parents and children, whereas someone else, perhaps not a teacher, could take the same material and convey it to a child or children with a totally different intent, making such book a method of a crime and the activity criminal. He added that the prosecution as the first filter had a discretion. What is envisaged is criminal intent and actions.

Mr Ntuli then asked if the cases of not many years ago when King Mswati, of Swaziland, and King Goodwill Zwelethini of Zululand had selected culturally, young girls as further wives. The actual selection had been performed by advisers of the Kings, some of whom were older women. In fact the parents of the young girl selected by Mswati had objected vigorously and vociferously to the selection of their daughter and the matter had been litigated upon, but before it came to court a settlement had been arrived at between the king and the girls’ parents. Some NGO’s had also intervened and exacerbated the dispute. He wanted to know whether all these actions would be construed as sexual grooming.

Mr J le Roux (DA) asked whether as these were cultural practices and seemingly without criminal intent could prosecutions follow.

The Chair agreed that “out and out” sexual grooming should considered and offence but cautioned that European standards and values seemed to be influencing the law always and African cultural practices and standards and he felt that this is unacceptable and must stop, and accordingly he could not agree to pass this Bill.

Mr A Manyosi (ANC, Eastern Cape) remarked that this is quite true and that he remembered the Mswati affair which was a big challenge to the King and had gone to court but been settled along the way. He also recalled the fuss when the King of the Zulus had taken another wife and the NGO’s funded by European money according to European standards had become involved so that South Africa is becoming an island of European values in a sea of Africa. In fact he recalled how when Tony Yengeni had wanted to slaughter a bull, as per tradition, the NGO’s had got involved and he is uncomfortable with the clash between law and standards.

The Chair then added that the SPCA was unhappy about killing a bull but not about a farmer who shot and killed a young boy because he claimed it was a dog. On the one hand the SPCA objects to the killing of an animal and on the other hand it condones the shooting of a dog, even when it turns out to be a boy. Where is the consistency?

Mr du Preez thanked the members for eloquently putting the differing outlooks into perspective. He felt confident enough to put his job on the line and state that the prosecutors would not prosecute unnecessarily of frivolously or vexatiously. He added that it is not a question of not acknowledging cultural practices but rather a question of should law look at cultural practices and he returned to his point that it all hinged upon the question of unlawfulness and any possible defences that might be raised in that regard. At the moment he is concerned and confused about the drafting but he felt that Clause 56 deserved further examination and investigation, and so he proposed that he be given time to looked at again.

A member suggested that the possible defences should be defined so as to include everything except cultural practices and then placed in legal language.

The Chair suggested that this also be flagged and that the legal Advisers, including Mr Navarra co-operate in redrafting and also the question of compulsory testing for HIV and the question of a person not being able to be employed after a conviction for a sex offence.

Mr Ntuli asked what the view of the other side - correctional services - was.

Mr du Preez said he had noted the concerns of the Members and the role of Correctional Services and would be giving attention to all of that. He added that other laws envisaged that a transgressor would never be rehabilitated and in this regard he referred to the fact that a conviction for fraud precluded service as a director of a company or in any other position of trust, that a conviction for drunk driving and consequent culpable homicide precluded employment as the driver of a school bus, and so he felt it right that those associated with the Bill keep in mind the National Register of Sexual Offenders, which does not forbid or preclude employment but would require the Department of Education to redeploy a convicted employee listed on the National Register of Sexual Offenders to another position within the Department of Education where such person would not have direct contact with children and other persons suffering from disabilities.

He conceded that this is a concern and felt that any exemptions to it would have to be properly motivated or else the whole chapter would fall flat.

Mr Ntuli sought direction on the fact that while Correctional Services is talking rehabilitation even the Community Police Fora (CPF) are regulating that persons with convictions will not be eligible for appointment to CPFs. He summarized it by saying, “once a pirate always a pirate” seemed to him to be the motif for this Bill and he contrasted it with the approach of Correctional Services.

Ms Clark stated that the intention behind the drafting of this Bill is to recognise the high level or amount of sexual abuse which occurs in homes and school. She added that there is provision for applying to excise a name form the National Register of Sexual Offenders and hence provision for restitution but she referred to a person with two or more convictions and / or the depravity of the acts giving rise to convictions and felt that the vulnerable elements of society, by which she meant children and those with mental disabilities, should receive adequate protection. She urged the members to remember that there had to be a balancing of rights between competing interests and not a wedded to life approach to the “rights” of the perpetrators or alleged perpetrators.

The Chair then raised the question of compulsory testing for HIV (and other Sexually Transmissible Diseases, such as syphilis, which are curable through medical treatment). He asked at what point was there to be this intervention so as to protect the rights of the victims and he referred to the complications, among other the time periods, the PEP methodology and he called for, or invited, responses.

Mr Moseki, remarked that there should be no additions and always a balancing of rights.

Mr Ntuli stated firmly that compulsory testing of an alleged perpetrator gave him difficulties for one had always to remember that anyone is innocent until proven guilty. He posed the question of why should a (sexually active) person be subjected to a test on the whim of another person which he felt might very possibly be a mere attempt to ascertain the status of another. He added that even the Scorpions could not rush pell-mell into an investigation but were forced to apply for a judicial authorization before embarking upon an evidence seeking raid.

Mr Worth then introduced the rights of the victim to know the status of the (alleged) perpetrator so that the victim, and those associated with the victim, could be supplied with all necessary and available medical aid, such as ARV treatment, and psychological assistance. He urged his fellow Members to think more of the victim’s rights than the rights of the (alleged) perpetrator.

Mr Navarra then gave as his considered opinion the opinion that the Constitutional Rights of the (alleged) perpetrator, being Sections 10, 12 (1) (d) and (e), (2) (b) and (c), 14, 35 (1) (c) far out number the Constitutional rights of the victim 32 (1) (b) and that a balancing of rights thus favoured the (alleged) perpetrator since at that stage the victim only has a prima facie suspicion that the (alleged) perpetrator faces a prima facie case and in his considered opinion the rights of any victim are less than the rights of any (alleged) perpetrator which are sacrosanct. Further, he did not see why an (alleged)] perpetrator could not be tested after conviction at the instance of the victim. Further, he conceded that the rights of the (alleged) perpetrator could be limited, in terms of section 36 by a law, but such law had to be one of general application and he is of the opinion that this Bill is not one such.

He continued that there might very well arise a Constitutional Court challenge to the provision in this Bill for the compulsory HIV testing of an (alleged) perpetrator prior to conviction, if at all, and the Constitutional Court find in favour of the (alleged) perpetrator. He asked whether the members are intending to approve a section of this Bill which would deprive the (alleged) perpetrator of his Constitutionally entrenched rights. He said the complainant is in any event entitled to treatment and psychological treatment and the victim’s condition does not depend upon a violation of the (alleged) perpetrator’s Constitutional Rights. He added that he had a serious problem with this section of the Bill.

In response to the Chair’s invitation Ms Clark said that the Legal Advisor had argued eloquently and passionately for the constitutional rights of the (alleged) perpetrator but she urged the members to remember that the victims also had constitutional rights. She added that the question of the rights of the victim had arisen as a result of a SA Law Commission decision to investigate and ventilate these and that eminent Judge Cameron is of the strong opinion that the rights of the victim must be recognized, and secured, and that such rights include access to ARV treatment at the soonest possible time so as to minimize the medical secondary effects of the treatment and strengthen the psychological treatment offered the victim both in respect of the ordeal itself and the consequentially necessary treatment and that these rights are to be balanced

Mr du Preez said that he concedes that section 36 protection rights are built in, and especially the rights of the victim to confidentiality and he did not think that in practice many would claim exercise of the right to know the HIV status of the [alleged] perpetrator on a whim, or false allegation and again he is prepared to put his job on the line.

The Chair then said that he was contemplating a long line of cases against the State from (alleged) perpetrators suing for damages because they had been forced in terms of this section of the Bill to be tested for HIV.

Mr Navarra then added that his colleagues from the department must look at the means used and he is of the opinion that the testing that should be done is of the complainant or victim. He asked once ore whether it is logical and reasonable to require the (alleged) perpetrator to be tested on a mere whim or allegation.

Mr Ntuli said he felt that that the maker of the allegation should not be allowed to breach the [alleged] perpetrator’s right to confidentiality about his status. He asked why the victim could not wait until after conviction, if any, to have the HIV status of the convicted person determined.

The Chair said the feather seemed to have been ruffled and invited any other member to address the Committee.

Mr M Thetjeng (DA) then recalled that a visit to Limpopo had revealed that at the DET centres there were many people who had been raped and more who went to lodge complaints and these are very serious allegations and the complainants are not tested for their status and he wanted to know why they are deprived of their rights, including the right to PEP. He felt that there are too many loopholes in the system and the question that must be asked is what is best for everyone.

Mr J le Roux (DA, Eastern Cape) said he is concerned about the placing of the (alleged) perpetrators rights above those of the victim and the victim needed to exercise rights to access the correct, and properly, effective treatment

After a tea break the Committee resumed and the Chair asked of the legal advisors whether they had been able to achieve consensus of views during the break.

Mr Navarra replied that the legal views were still at arm’s length about the dichotomy of rights

Mr du Preez then added that certain movement towards consensus had been achieved but what separated the views is the differing approach to the rights of the people concerned. He repeated that sound medical reasons are behind the provisions of the rights in terms of Clause 28 (1) (a) and Clause 28 (1) (b) and he is of the opinion that the medical realities strengthen the victim’s rights and he gave illustrations of the operative time periods. He conceded that the drafters had not taken into account the making of false allegation merely to establish the HIV status of someone as such is to fantastical to be based upon reality, although he conceded that human nature can be motivated very strangely but such strangeness is not taken into account when legislating, bad cases do not make for good laws is an excellent aphorism as a guide. He added that he is certain that the Directorate of Public prosecutions (DPP) would consider all the facts surrounding any particular instance including Section 36 of the Constitution. He wondered whether Ms Clark would like to amplify. Further, with regard to a prima facie case against an (alleged) perpetrator he reminded all concerned that the HIV testing of an (alleged) perpetrator could only be done after an application to a magistrate who is trained to consider all the evidence upon which such application is made, supported by evidence upon affidavit and that the magistrate is authorised, if necessary, to call the [alleged] perpetrator to give evidence orally against such application. He felt that there is sufficient safeguard built into the Bill.

Ms Clark then added that concerning the possibility of litigation against the State she is of the opinion that there is no case, unless the litigant can prove malicious prosecution.

The Chair summarised the opposing views and said that a decision must not be taken lightly and that there had to be a conscious appraisal of the rights of the victim and the fundamental rights of the accused in coming to a vote upon the Bill and although there is provision for the confidentiality of such test results, intended to be confined to the complainant, the Investigating Officer and the Court, there are Friends of the Court who approach the Courts and become aware of everything to do with a case. He asked what the definitions of complainant and (alleged) perpetrator were.

Mr Ntuli then interposed and said it is necessary to establish whether medical intervention, including psychological assistance, really is helpful to the victim. He proceeded to ask whether psychological assistance really worked.

The Chair then asked the legal advisors to consider the proposals and the Members’ concerns and return after due consideration. He asked Mr du Preez to clear up the issue Clause 13, flashing and sexual grooming and self masturbation

Mr du Preez undertook to do so setting on record that this Bill and its provisions is not intended by the legal Advisors to undermine traditional practices or values.

Presentation Correctional Services Bill

At about 12h30 the Chair welcomed Minister of Correctional Services, Mr Ngconde Balfour, and the team from the Department of Correctional Services who had come to present the Correctional Services Bill to this Committee.

After the customary pleasantries Minister Balfour gave an ex tempore off the cuff introduction to the Bill and the envisaged changes. He spoke persuasively about the need to re evaluate the correction, or rehabilitation, of offenders and the Department’s plans therefore, which included but is not confined to changes in nomenclature. He concluded by reminding all concern that not all offenders could be rehabilitated or corrected and that he and his department are not dealing with angels, and that this is the reason for the establishment of C Max at Kokstad which is the destination of the completely incorrigible. The Minister then left the Meeting.

Mr Tebogo Motseki (Chief Deputy Commissioner) introduced his team and said that they would address members on the Bill and its provisions.

Adv Millicent Malebye (Department of Correctional Services Legal and Special Operations) then addressed the Members and said that the genesis of the Bill is the White Paper and a concern that the human rights culture introduced by, and enshrined in, the Bill of rights section of the Constitution is not adequately conveyed in the existing of principal Act. She emphasised the role of training or rehabilitation of the incarcerated offenders who would be divided into inmates, according to whether awaiting trial, offending, and awaiting parole or release. She added that training by way of conveying life skills for future absorption into society is a prime motive of the department, as is the question of the child attached to an inmate. Previously children were allowed to remain with their mother until the age of 2, whereafter it had been increased to 5 years, but now international best practice agreed that two years is the optimum time for a child to be incarcerated in a Correctional Service facility, but each case would be investigated psychologically and what is in the best interest of the child concerned would be the motivation factor for the department and its approach in the future.

Mr Ntuli enquired as to whether the Department’s skill corresponded with what the real world requires.

With regard to parole it was explained that the department is planning to rationalize the approach to parole so that the policy and practice in all provinces is uniform.

Discussion
There was much discussion by the members about the wording of the Bill and whether such conveyed what they understood is the purpose of the Bill. Mr Mzizi warned against too literal translation from the English because such translations might be offensive to persons who spoke other languages in preference to English.

There was also a question about whether the Inspecting Judge was paid extra for this task and Mr le Roux wanted to know why the Inspecting Judge should now be afforded a Chief Executive Officer and whether the intention is to make achieving Parole easier or more difficult.

Mr Mack questioned the 2 year age limit for children to be in Correctional Services facilities for he questioned bonding between parent and child. Additionally he questioned why, whenever there is reference to external or international studies, as such studies are always European based, and not African.

Mr S Shiceka (ANC, Gauteng) asked for amplification about mechanical restraints and why use of these needed to be reported to the Minister.

The Departmental Representatives then conceded that Mr Mzizi had a good point about the naming, and description, of the Bill; that the Inspecting judge required a Chief Executive Officer so that he performed only judicial functions and did not merge judicial and Administrative or Executive functions contrary to the constitution and that mechanical restraints are hand cuff and leg irons and it is conceded that such require to be used where necessary but it is felt that the Minister should have the information so that the Inspecting Judge should not ever be surprised by unexpectedly finding someone bound hand and foot. The question of children incarcerated consequent upon their mother’s status as inmate is very seriously viewed and the best interests of such children are the motivating factors. Equally the development, or transfer to inmates of skills requires that such skills be relevant and in this regard there would be interaction with the community. The purpose of the legislation is to evolve the changes. In this regard the question of mechanical restraints must be viewed against the fact that certain inmates are a danger to themselves and/or the community and often must be restrained for their own good.

The Departmental legal advisors reiterated these views adding that the department’s intention is at all times to exercise minimum force when necessary

Mr Ntuli raised the question of the contradiction between the attitude or approach of the Department of Correctional Services working towards rehabilitation and integration into society and the other laws such as the Sexual Offences Act which provide for the maintenance of a list of register of sexual offenders from which list it seems difficult to move away and then only with great difficulty.

The Chair reiterated such an approach to the Bill

Mr Mack expressed concerns about children bonding with their incarcerated mothers and felt that bonding did not cease at 2.In addition he said that no where had there been reference to the position of persons with disabilities. Referring to himself as an example he said that he believed that if he were to be incarcerated he would experience great difficulties because of his own physical disabilities.

Mr Shiceka felt that there is much in this bill which requires to be looked at afresh but that nevertheless he is pleased that the Department is changing to a more human approach to offenders. A concern is the lack of provision in the bill for alcohol and non prescribed drug users. Additionally there is much about the separation of male from female inmates but had consideration been given to the effects of the Civil Unions Bill, whereby one male person could take on the role of a female and vice versa and how would the Correctional Services Department handle such instances.

The Chair then reminded all present that the Minister himself had stated that the department is not dealing with angels and in this regard he referred to the recent murder of Lucky Dube.

Mr Mzizi referred to the provision that Correctional services facilities would in future be open to inspections and visits by NGO’s and he wanted to know what limits are envisaged, citing the example of the Rastafarian or NGO that offered questionable views about dagga.

Mr Shiceka stated that the department must reserve the right to grant of refuse access to any NGO. He felt it important for a realization that some people, such as sex offenders, simply could not be rehabilitated.

In response to these, and some other, reservations the Departmental officials emphasised that the approach in future is to be humane, and human rights, but that the reservation that these inmates are transgressor against society would remain at all times and a realistic approach be maintained.

Mr Navarra then pointed out that pre 1994 there was little, in his view, to distinguish soldiers, policemen and prison qarders one from the other because they were all elements of a repressive force and so he for one welcomed the change to a reformative or rehabilitative approach, which opinion was echoed by Mr Shiceka.

The meeting adjourned.