Criminal Law (Sentencing) & Criminal Law (Sexual Offences) A/B: NCOP amendments; Magistrate’s Remuneration; Outstanding Bills

Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
21 November 2007
CRIMINAL LAW (SENTENCING) & CRIMINAL LAW (SEXUAL OFFENCES) A/BILLS: ADOPTION; MAGISTRATE’S REMUNERATION; OUTSTANDING BILLS

Chairpersons: Mr Y Carrim (ANC)(first portion); Ms F Chohan (ANC) (second portion)

Documents handed out:
Report of the Select Committee on Security and Constitutional Affairs on the Criminal Law (Sentencing) Amendment Bill
Committee Report on the Criminal Law (Sentencing) Amendment Bill
Criminal Law (Sexual Offences And Related Matters) Amendment Bill [B 50D-2003]
Criminal Law (Sexual Offences And Related Matters) Amendment Bill [B 50C-2003]
Criminal Law (Sexual Offences and Related Matters) Amendment Bill [B50B-2003]
Criminal Law (Sexual Offences) Amendment Bill [B50-2003]

Audio recording of meeting

SUMMARY
The Committee tabled, discussed and approved the Committee Reports on the oversight visit to Pollsmoor Prison, and the Annual Reports of the Department of Justice and the Legal Aid Board. The Committee also considered and approved the draft proclamation on the salaries of judges and of magistrates. The House Chairperson attended the meeting to discuss the procedure of the Joint Programming Committee and the withdrawal of the Judicial Officers Amendment Bill, the Child Justice Bill and the Superior Courts Bill. It was noted that the Child Justice Bill was to be processed urgently.

The NCOP Select Committee amendments to the Criminal Law (Sentencing) Amendment Bill had now been referred back to this Committee, after the NCOP Select Committee had proposed two amendments. The NCOP report noted that sub-paragraphs (i) and (iv) of the new Section 51(3)(aA) should be deleted. The NCOP had been concerned that unintended consequences could arise from inclusion of those clauses. Ms Chohan and the Chairperson of the Select Committee had agreed that the Department of Justice, within 24 months, should review and report to this Committee whether there had been any unintended consequences or concerns pertaining to the operation of these exceptions (i) and (iv). The majority of Members voted to reject the amendments proposed by the NCOP.

The Criminal Law (Sexual Offences and Related Matters) Amendment Bill had also been referred back with amendments from the NCOP. Several technical amendments had been approved by the NCOP, as a result of problems with the printed version adopted at the NA. Members voted to approve all these technical amendments. Substantive amendments by the NCOP were also proposed. The NCOP had amended Clause 1 by the incorporation of a definition of “child pornography” and “pornography” and there were linked changes in clauses 18, 19 and 20, removing the references to the Films and Publications Act. Members agreed to this amendment. In Clause 13 the NCOP had proposed insertion of wording, and Members agreed to this amendment. In Clause 17(3)(b), (4), (5) and (6), the NCOP proposed insertion of "with or without the consent of B". Members agreed to this amendment. Amendments to Clause 18, 19 and 20 were approved. The NCOP amendments proposed to clauses 56(6), (7) and (8) were accepted, but the proposal to amend Clause 56 (9) was rejected. The Department would be asked to study whether there were any unintended consequences on this section, and report back to the Committee within two years. The changes to the commencement date were approved. The NCOP amendments to the Schedules were explained and approved.

MINUTES
Committee report on visit to Pollsmoor Prison
The Chairperson tabled a new version of the report, and noted that some indications had been added in from Chairperson of the Correctional Services Committee, Mr D Bloem. The Committee was not saying anything that was necessarily new or predictable. It was noted that matters would be followed up by the Correctional Services Portfolio Committee.

The report included comments on alternative sentencing, and also had a proposal for an inter-sectoral task team, noting that there needed to be more feedback. In addition he noted that MPs should all be doing work so that there were material outcomes of oversight and reports.

Mr D Bloem (ANC) added that the Correctional Services committee would endorse what this Committee said, and would be meeting on the following day to adopt the report. He commended the Committee on its detailed report.

The Committee adopted the report.

Proposal on withdrawal of certain Bills from process
The Chairperson noted that section 2.5 of the Committee Report that was adopted last week noted that some Bills had been “pending” for some time between the Executive and this Committee. The House Chairperson, Mr Geoff Doidge, had on several occasions raised the need for progress reports on the Judicial Officers Amendment Bill, the Child Justice Bill and the Superior Courts Bill.

The Committee had noted that the Judicial Officers Amendment Bill would not be processed in the original form, because it had been decided that this would be divided into three Bills. It had therefore become obsolete and the Ministry had decided to withdraw it. A new version of the Child Justice Bill would be drawn and processed through next year. The Ministry and stakeholders were still engaging on aspects of the Superior Court Bill and this process would be taken further in the new year, following a policy paper on transformation. There would be discussion at the end of the first quarter.

Mr S Swart (ACDP) noted that he had expressed concerns about the delay in the Child Justice Bill from 2001. It was vital that it be passed as quickly as possible, and it tied in with awaiting trial detainees. He expressed concern that if it was taken off the Committee programme, then the Committee might not have any further control over it..

The Chairperson noted that the bill went to the Cabinet Committee last week and would be going to Cabinet today. By the next day the Bill would be ready to go to the State Law Advisors for final certification.

Mr Doidge noted that the Joint Programme Committee had sat on 14 November, and agreed on a framework for 2008, which was on the website. Presiding officers would inform the Leader of Government Business on the deadlines for legislation, in keeping with the constitution. The deadlines for next year were that there must be tabling by 11 February to pass by 27 June, and tabling on 2 June for passing in November. If a Bill did not meet the deadline then Parliament was under no obligation to pass it in the first two terms.

Mr Doidge added that there were cycles of legislation The NA was, in theory, bound to a four-week cycle, and the NCOP to a six-week cycle. On a weekly basis the Joint Programme Committee would look at the detailed programme, and there must be weekly progress reports on legislation. If a bill was "stuck" the Chairperson of the relevant Committee would be informed of the requirements of the rules, and an extension must be applied for. In the case of the Justice Portfolio Committee Mr Doidge had been applying for extensions on behalf of the Committee. Progress was to be reviewed by the end of the first term. If there was failure to meet the deadlines, then in terms of the rules the House should vote on legislation. So far the NA Programme Committee had not applied that rule. It instead advised that other options were available, such as negotiation at a political level that the Bill be withdrawn. He requested that if the Committee was unable to meet a deadline, the application for extension should come from the Committee itself.

Mr S Swart noted that the impression had been created with the Child Justice Bill that the Committee was sitting on the Bill. That perception needed to be corrected. The Bill must come back on an urgent basis.

The Chairperson clarified that this matter had already been raised with Mr Doidge. He agreed that it did not reflect well on a Committee that a Bill should "percolate" for six years. He therefore suggested to Members that in future any Bill coming to this Committee should be put on a programme. If the Committee was unable to deliver because the Executive was unable to deliver then there should be negotiations with the Executive. This Committee would not be held responsible for Bills that it could not process, and he would not like this situation to arise again.

Mr J Jeffery (ANC) agreed on the approach. The Committee should be providing reports to the House Chairperson and the Speaker. However, he believed that it was not for this Committee to say that a Minister should withdraw a Bill; that should come from the Speaker.

Mr Doidge agreed that the available mechanisms should be used. No report should go to the NA without having been seen by this Committee.

Mr Swart asked whether there could be an addition to the Report that the Child Justice Bill should be lodged by 11 February.

The Chairperson did not think it was necessary to put this in.

Mr Doidge asked if the document mentioned the Magistrates' Amendment Bill

Mr Jeffery noted that there was a component of the original Judicial Officers Bill that had not been discussed.

Mr Johan de Lange, Principal State Law Advisor, Department of Justice, clarified that the original Judicial Officers Bill had not dealt with disciplinary proceedings over magistrates. The Committee would eventually deal with this as a committee Bill, but no such Bill had yet been introduced.

Mr Doidge asked that this be included in the report.

The Chairperson noted that the Report would reflect that the proposed Magistrates’ Amendment Bill had become obsolete, and would be withdrawn.

The Report was adopted by the Committee.

Report on the Department of Justice (DOJ) Annual Report
The Chairperson noted that there were a few stylistic changes to the Report. The Department had made the point that there was a historical issue with third party funds and the Department would probably never be able to account for them. Whilst it had recognised he need for improvements on the financial side, it stressed that it had been performing this responsibility on behalf of other agencies.

The Chairperson summarised the content of the Report. The Committee noted the need for quarterly meetings, with effect from next year. It had queried whether the Department was strategic enough in allocations of energy and resources, and noted the need also to query the third party funds, to engage on improvement of targets, which had not been quantifiable, nor linked to goals. The Annual Report had not been accessible or user-friendly, had provided court statistics only to January, and time frames were not always given. The Committee believed that there was a need for incremental progress on cases removed from the role. It was not happy with under spending. A number of matters would be followed up next year. He noted that perhaps in future the Report should contain only matters that the Committee had been able to confirm.

Mr L Joubert (DA) noted that there was still a performance contract awaited.

The Chairperson agreed that the performance agreement between the Minister and the Director General should be given to the Committees, and this would be added in to the report.

Mr G Magwanishe (ANC) said that this should apply for all institutions accounting to this Committee.

The Report was approved, with amendments as suggested by Mr Joubert.

Report on the Legal Aid Board Annual Report
The Chairperson noted that the Legal Aid Board (LAB) had sent a long reply to queries raised. This would be available from the Committee Secretary.

Mr Swart noted that staff turnover was 22.7%. He wondered if the figures were correct. The Committee Researcher undertook to check this.

The Chairperson summarised the recommendations in the Report. He noted that there had been significant progress and LAB must be commended. He said that the Board had recorded figures – which the Committee was not necessarily able to verify – and noted also the differences in terminology. The Board had said that the targets and time frames were in the yearly business plan, and that must be brought before the Committee. There was a need to present the Guide for approval by Parliament as soon as possible. The number of practitioners was inadequate. The Committee took a preliminary view that the LAB should be engaging with more civil work, but this would be discussed again. The Committee researcher was asked to check whether the enabling legislation made any distinction between civil and criminal work. There was a need to address the poor who needed LAB services. The Committee was not impressed with the employment equity issues. It would engage further within the next six months.

The Report was adopted.

Magistrate's Remuneration
Mr J Jeffery (ANC) noted that the Moseneke Commission made recommendations on the salaries of judges and magistrates. The President, acting on the recommendations of the Committee had now drawn a draft proclamation for approval by this Committee. In answer to the concerns that this happened only at this late stage, Mr Jeffery noted that a report had been submitted in June, a number of objections were raised, and the President had referred it back to the Commission. About three weeks ago the Commission reported back, standing by the original proposal. The Commission was then asked to advise on an inflation linked increase for the public office bearers. Last Tuesday it recommended a 7.5% increase across the Board. The draft proclamation had been signed on Thursday and sent to Parliament on Friday.

The Chairperson noted that Ms M Mahlawe (ANC) had queried whether the full procedure had been followed, noting that last year the Committee had said that there should be joint acceptance of the process by both houses.

Mr Swart pointed out last year there had been a problem with gazetting of motor vehicle allowances before this Committee had considered them.

Mr Jeffery confirmed that last year there were a number of problems with the procedure. There did not seem to be a similar problem because this was only a draft Gazette. .

The Committee approved the remuneration for judges, and then approved the remuneration for magistrates.

Criminal Law (Sentencing) Amendment Bill
Ms F Chohan (ANC) took over as Chairperson for the second section of the meeting.

The Chairperson noted that the Criminal Law (Sentencing) Amendment Bill was a Section 75 Bill. The NCOP could propose amendments but the NA did not have to accept them.

The NCOP Select Committee had proposed two amendments to the new Section 51(3)(aA), asking that the prohibition on matters being considered as substantial and compelling circumstances should not include sub-paragraph (i) – the sexual history of the complainant and (iv) – any prior relationship between the parties.

Ms Chohan and the ANC Whip had indicated to the Chairperson of the Select Committee that the NA was not likely to agree to these changes. The reason for the amendments by the NCOP was that there were concerns around unintended consequences. It was then agreed that the NA should, in an attempt to allay these fears, ask the Department, within 24 months, to do a review and report to this Committee whether there had been any unintended consequences or matters of concern pertaining to the operation of the exceptions (i) and (iv), of this Section. She noted that this would also perhaps address the concerns that the DA had expressed around the narrowing of the judicial discretion, and that it was a good compromise.

Dr T Delport (DA) supported the compromise approach, although he indicated that his party agreed with the deletions that the NCOP had proposed.

The Committee therefore formally voted on the NCOP amendments.

In respect of the NCOP amendment to delete the new Section 51(3)(aA)(i), the two Members of the DA indicated support for the NCOP amendment. The remaining seven Members of the Committee voted to reject the NCOP amendment.

In respect of the NCOP amendment to delete the new Section 51(3)(aA)(iv), the two Members of the DA indicated support for the NCOP amendment. The remaining seven Members of the Committee voted to reject the NCOP amendment.

The Report of this Committee was then tabled, noting that the amendments had been rejected. The DA Members noted that the report was factual. Members voted unanimously to adopt the Report.

Mr Johan de Lange, Principal State Law Advisor, Department of Justice, noted that there was no "C" version of the Bill, and it was therefore not necessary to vote on the Bill again.

Criminal Law (Sexual Offences and Related Matters) Amendment Bill
The Department of Justice tabled a draft of the changes proposed by the NCOP, which had appeared in the ATC. The drafters from the Department of Justice then tabled a new version of the Bill.

The Chairperson noted that an incorrect version of this Bill had in fact been passed in Parliament. The printers to whom the Bill was sent in electronic format had somehow managed to print it with numerous technical mistakes, such as incorrect indentation of numbers and removal of dashes. Mr Bassett and Mr du Preez of the Department of Justice had corrected it, but the printers again managed to produce still more mistakes. It had therefore been proposed that the NCOP would rectify the technical problems by effecting formal amendments to the printed version. That had been done, and she suggested that the Members should approve all technical amendments, then look at the substantive amendments also proposed by the NCOP.

Members agreed to this approach.

Mr Henk du Preez, Senior State law Advisor, Department of Justice, confirmed that all technical issues had been corrected and were reflected properly in the Bill now tabled.

He then took the Committee through the substantive amendments.

Clause 1
Mr du Preez noted that this was linked to clauses 18, 19 and 20. When these clauses had been approved by the NA, they reflected a reference to the Films and Publications Act. This version of the Bill now proposed to delete all references in those sections to pornography and child pornography. The reason was that the Department, on reconsideration, thought it was more appropriate to put two definitions into Clause 1. These should be aligned to international best practice, as well as to the cases that had been decided in South Africa, particularly the De Reuck case. The original clauses had derived from a definition that was in earlier versions, and that would form the basis of the definition now to be inserted back in Clause 1.

The Chairperson noted that the previous definition had drawn extensively on the Films and Publications Act. This was a more refined way of dealing with the matter, given that the Films and Publications Act was not within the control of this Committee, and a change to that could have caused consequential changes if this Bill referred to it. There was a difference of intention between the regulatory Films and Publications Act and the criminal law Bills.

Mr Swart said that there was no lessening of the offences, and he was happy with the definition.

Dr Lirette Louw, Researcher, DOJ, said that the Department had realised, on doing some further research, that the original draft did not cover morphing, nor a young adult being dressed up to look younger than eighteen, nor the creation of child pornography with internet graphics. The new wording for child pornography now included “whether for artistic purposes or not" and therefore in fact strengthened and tightened the gaps of the original wording.

Clause 13: Proposed amendments by NCOP in relation to bestiality
Mr du Preez said that NCOP had proposed changes to subparagraph (d) by inserting the words "unless such act is committed for scientific reasons or breeding purposes".

The Chairperson thought that this might have been captured in the "unlawful and intentional" issue. Whilst she did not think it was necessary she would be happy to accommodate the change.

Members agreed to this amendment.

Clause 17
Mr du Preez noted that the NCOP proposed to insert the words "with or without the consent of B" into subclauses (3)(b), (4), (5) and (6)(a)

Members agreed with this amendment.

Clause 18
Mr du Preez said the NCOP was concerned that the manufacturing of an article should be included in a separate paragraph, to make it clear that the article would be exclusively intended to facilitate the commission of a sexual act with or by a child. The NCOP had expressed concerns that otherwise there might be unintended consequences criminalizing those involved in sex education.

There were further technical amendments in this Clause, relating to removal of references to the Films and Publications Board, which the Committee had discussed in relation to the new definition in Clause 1.

Members agreed with these amendments

Clause 19
Mr du Preez said that the whole clause had been replaced, and that (b) of the original Clause 19 fell away, because it was now included elsewhere.

Members agreed to this amended clause.

Clause 20
Mr du Preez indicated that there was a new clause 20, for the same reason as outlined under Clause 19. It was easier to replace the entire clause than to try to re-work the wording.

Clauses 24, 25 and 26
Mr du Preez indicated that these were consequential changes resulting from the new definitions of child pornography. He reminded Members that the clauses dealing with those with a mental disability mirrored the clauses dealing with children.

Members agreed to the amended clauses

Clauses 29, 32, 40, 41, 44, 45, 46, 47, 48, 49 50, 51, 52, 53, and 55
Mr du Preez pointed out that there were technical amendments to all these clauses

Members agreed to these changes.

Clause 56 (6) and (7)
Mr du Preez noted that two proposed amendments by the NCOP committee were in sub-clauses (6) and (7) relating back to the offence of using children for or benefiting from child pornography.

Members agreed to those amendments.

Clause 56(8)
The Chairperson said that clause (8) referred back to offences under Section 9 and Section 22. These referred to exposure or display of genital organs or female breasts. The NCOP was concerned that some cultural practices would not be covered by "intentional and unlawful", traditionally being matters such as reed dances. She did not agree necessarily that this was not covered. However, it seemed that there was no harm in including the reference to legitimate cultural practice in this instance.

Members agreed to this change.

Clause 56(9)
The Chairperson noted that sub clause (9) referred to offences in terms of section 18(1)(c), dealing with sexual grooming. Once again the NCOP had suggested that there could be cultural practices whereby the showing of pictures would not amount to sexual grooming. The Chairperson had indicated to the Chairperson of the Select Committee that this Portfolio Committee would have problems in accepting that amendment. Cultures were not static, and this applied to ancient and newly developed cultures. Especially in relation to children, the door should not be left open for this kind of behaviour.

Mr Swart felt strongly that this amendment must be rejected.

Members agreed to reject this amendment.

The Chairperson suggested that perhaps the Department of Justice should be asked to study and report back to the Committee, in a similar way to what had been discussed under the Sentencing Law legislation, on the effects of section 18(1)(c) and whether there were in particular any unintended consequences. This proposal could be included in the Committee’s report.

Members agreed to this proposal and its incorporation into the Committee Report.

Clauses 63, 66, 67, 68, 70, and 71
Mr du Preez pointed out the technical amendments>

These were agreed to by Members.

Clause 72: Short title and Commencement
The NCOP had proposed that the substantive provisions should take effect on 16 December but that Chapter 5 should take effect on 21 March and Chapter 6 on 16 June 2008 (or, in each case, on an earlier date fixed by the President by proclamation in the Gazette)

Mr Joubert asked why these dates had been proposed.

The Chairperson noted that Chapters 5 and 6 required drafting of regulations, so this was a pragmatic approach.

Mr Swart noted that the Act would come into effect on the relevant dates whether signed or not, although it was desirable that there should be signature.

Schedules
Mr de Preez noted firstly that there were technical amendments in items 2.3.4,5, 6,7, 8, and 9.

Members agreed to these amendments.

Long Title
On the last page, there was a need to correct wording in the Long Title.

Members agreed to this amendment.

Schedule: Item 1: Amendment of Sexual Offences Act 23 of 1957
Ms Delene Clark, Researcher, South African Law Reform Commission, noted that the question of adult prostitution had previously been discussed. Adult prostitution would continue to be dealt with under the existing Sexual Offences Act. The drafters had originally inserted a definition for “person” to mean a person of 18 years and older, to distinguish the offences in that Act from those under this Bill. However, there were unintended consequences that meant that it would not then be possible to prosecute certain age groups of brothel keepers or pimps. This current Bill only applied to child prostitution. A child involved in any way in adult prostitution could be caught in the Sexual Offences Act, provided that there was not an age-limiting definition. Therefore that definition had now been taken out in this version.

Members agreed to this amendment.

Schedule: Amendment to Criminal Law Amendment Act
Dr Louw noted that this matter had been discussed by the Committee before. The original change had been to simply insert “or compelled rape” into Part I of Schedule 2 of the Criminal Law Amendment Act. However, it was subsequently realised that the same criteria did not necessarily apply to rape and compelled rape. The changes now reflected had brought the schedules in line with the definitions of rape and compelled rape respectively.

Members agreed to this amendment.

Committee Report on the Bill
The Chairperson proposed that she and Mr du Preez should be given the authority to develop a report, but that the Committee could already support the principles of that Report.

Mr du Preez said that the mere fact of the rejection of some of the amendments would allow the preparation of a C list.

The Chairperson read out the report from this Committee, noting that the Committee had considered Bill B50B - 2003, and the proposed amendments tabled in the ATC. She noted the rejection of amendments proposed under clause 56(9). Save for this, the version tabled was unanimously supported by Members. No Members opposed, and none abstained.

The Chairperson thanked the Committee for its work on this matter. The Bill represented substantial and important work and she paid tribute to all drafters.

The meeting was adjourned.