The Department of Justice briefed the Committee on clauses of the Judicial Matters Amendment Bill. Clause 1 amended the General Laws Amendment Act, dealing with the disposal of the body of a child that had been aborted, born prematurely but had subsequently died, or born alive but where the mother had ensured the death of that child. The Women’s Legal Centre made a submission that neither “child” nor “body of the child” were defined in the Bill nor in the principal Act, meaning that the interpretation of the offence was left to the prosecuting authorities and that there had been wide disparities. The amendments still resulted in a reverse onus (on the accused, not the prosecution) to prove intent, and that was in contravention of the Constitution, and further resulted in discrimination against women. The Centre suggested the repeal of this clause of the Bill in its entirety, or its re drafting in line with both the Constitution and the Births and Deaths Registry Act. The Fish Hoek Baptist Church said that whilst it welcomed the Bill’s efforts to address infanticide, but felt also that active steps should be taken to identify and establish “Places of Safety” where newborn infants could be taken for protection, and that if mothers chose this option they should be free from prosecution.
Professor Christa Rautenbach had some comments on clause 22 of the Bill, which was amending the Intestate Succession Act. She felt that there should be distinctions made between partners to a same-sex union, and partners married under other religious marriages should be distinguished, especially in the light of the Court decisions in the Daniels v Campbell case of 2004 and a recent Cape case concerning the right of a Muslim spouse to inherit. She submitted that there should be an evaluation of the definition of a spouse and consideration should be given to whether a double amendment might be necessary to cover all loopholes. She was asked to put her submission in writing. Professor Wouter de Vos then suggested that these amendments were ill advised, and that the circumstances of the case cited in support of them had been overtaken by the Civil Union Act. The effect of the amendments was to put same-sex life partners in a more favourable position than heterosexual life partners, and that if the amendments were proceeded with now, they would nullify the provisions pending in the Domestic Partnership Bill.
The Department then briefed the Committee on clauses 27 to 31 of the Bill, relating to amendments to the Promotion of Access to Information Act (PAIA), and the Promotion of Administrative Justice Act. The Open Democracy Advice Centre complained that the proposed extension of the rules should not be done, since this was now the latest in a seven and a half year delay since inception of the Promotion of Access to Information Act, which had forced people to have recourse to the High Courts only to resolve disputes. It urged Parliament instead to approve the Rules. The Committee admitted that there had been a delay and that the Committee hoped to complete everything by the end of the parliamentary term.
The Department briefed the Committee on the Criminal Procedure Amendment Bill, discussing in particular the postponements by audio visual link that had been piloted in Kwazulu Natal, and the expungement of criminal records that related to “apartheid-era” legislation that would not be permitted in an open and democratic society. Members discussed the issue around expungement, and suggested that plea bargains should also be considered. The Civil Society Prison Reform Initiative made a brief submission, questioning whether some clauses were entirely necessary, and stressing the need to balance all interests when considering expungement. It was noted that a Private Member’s Bill had also been drafted on this subject.
Judicial Matters Amendment Bill [B48-2008] (the Bill): Department of Justice (DOJ) briefing
Ms Theresa Ross, State Law Advisor, Department of Justice, explained that the Bill amended several other pieces of legislation, and that it was usual to do such amendments jointly rather than individually. Most amendments were straightforward, although there were some problem areas. She briefly dealt with three amendments being effected by way of this Bill, on which public submissions had been received.
Clause 1 concerned the General Laws Amendment Act and dealt with the disposal of the body of a child that had been aborted, or born prematurely but had subsequently died, or in circumstances where, although it was born alive, the mother had ensured the death of that child. It generally criminalised actions regarding the unlawful disposal of the body of a child. It was felt that the original wording of the Act was neither satisfactory nor beyond constitutional challenge. The evidentiary burden was a negative burden, and it was up to the accused to show that he or she had no intention to dispose of the body. It was also left to the Director of Public Prosecutions to authorise the prosecution, and there was presently little similarity in approach.
Clause 2 dealt with an amendment to Section 88 of the Administration of Estates Act and the payment of interest on monies invested in the Guardian’s Fund. The purpose of the amendment was to align the practice of the Guardian’s Fund with that of the commercial banks, allowing for the calculation of interest monthly and the paying out of this at any time required by the beneficiaries, and not only at the end of the State’s financial year. It also made possible the calculation of the interest accruing electronically and the rate of interest was to be determined by the Ministers of Justice and Finance, in collaboration with each other, and not only by the Minister of Finance. It aligned the Act with the Mental Health Act and removed words that were regarded as being discriminatory or hurtful.
Clause 7 pertained to admissions of guilt that were set by the Minister for certain offences. They repealed the powers of the Minister and the Clerks of Court and were regarded as being of a consequential nature.
Public Hearings on Judicial Matters Amendment Bill:
Women’s Legal Centre (WLC) submission on Clause 1
Ms Noluthando Ntlokwana, Attorney, Women’s Legal Centre, declared that the present Section 113 of the General Laws Amendment Act was both old fashioned and of questionable constitutional validity. She submitted that the question of when a foetus progressed into a child required an answer. The Births and Deaths Registration Act of 1992 required a certificate or declaration of still-birth to a relevant governmental official. However, neither “child” nor “body of the child” were defined in the original Act, nor in this Bill. This meant that the interpretation of the offence was left to the prosecuting authorities and could be abused. There was a close link between concealment and registration of birth, and failure to notify of a still birth or miscarriage after a 26 week pregnancy constituted a crime of concealment of birth. She made reference to four similar cases in the Northern Province, which had resulted in two convictions and two withdrawals of the charges. Additionally, there was another case where the accused was arrested on 21 July 1999 and, after several appearances in the District and Regional Court, was advised only on 16 November 1999 that charges would be withdrawn.
She submitted that the Bill still contained a reverse onus (on the accused, not the prosecution) to prove intent, and that was in contravention of the Constitution. If a person was proved to have disposed of the body of a child, the presumption of intent to conceal came into operation. This presumption could be rebutted by proof on a balance of probabilities, but in the absence of such proof the Court would be obliged to convict, not withstanding reasonable doubt regarding the state of mind of the accused. The Constitutional Court had in the past declared a number of other reverse onus provisions unconstitutional. Because the accused in such crimes were generally woman this reverse onus would have the effect of discrimination on the basis of sex and gender, and would adversely affect their rights to a fair trial.
She submitted further that the infringement of the Constitution created by this section could not be considered to be a permissible limitation under Section 36 (1) of the Constitution, and it would not meet the requirements of being reasonable and justifiable in an open and democratic society. There was no justification for infringing the accused’s right to be presumed innocent until proven guilty. The Women’s Law Centre suggested the repeal of this clause of the Bill in its entirety, or its re drafting in line with both the Constitution and the Births and Deaths Registry Act.
Fish Hoek Baptist Church submission on Clause 1
Pastor Alan Day, Fish Hoek Baptist Church (the Church) said that the Church found the deliberate dumping of newborn babies to be abhorrent, and welcomed this Bill as an attempt to address infanticide. However, the Church sought to recognise the interests of the newborn child and the interests of the mothers faced with incredibly difficult circumstances, and this was something that the Bill did not address.
The Church felt that the Bill needed to discourage women from abandoning new born infants, and such actions should remain offences. However, it suggested that “Places of Safety” be identified and established where newborn infants could be taken for protection, and that if mothers chose this option they would be free from prosecution. Adequate and effective counselling should be provided and pregnant mothers should be fully informed of the alternatives available to them.
The church was vehemently opposed to abortion, and felt that it was synonymous with baby abandonment. All hospitals and clinics should carry adequate signage advertising counselling services.
The Chairperson said that she was concerned with whether these provisions related to live and still births.
Mr J Jeffery (ANC) asked whether the Departmental legal advisers could respond in due course.
Professor Christa Rautenbach, Faculty of Law, North West University, stated that she had some comments on clause 22 of the Bill, amending the Intestate Succession Act. She felt that there should be distinctions made between partners to a same-sex union, and partners married under other religious marriages should be distinguished, especially in the light of the Court decisions in the Daniels v Campbell case of 2004 and a recent Cape case concerning the right of a Muslim spouse to inherit. She submitted that there should be an evaluation of the definition of a spouse and consideration should be given to whether a double amendment might be necessary to cover all loopholes.
Professor Wouter de Vos, Law Faculty, Rhodes University, suggested that the problem could be overcome by changing the phrase to “hetero sexual couples”.
The Chairperson requested Professor Rautenbach to make submissions in writing.
Ms Ross said that the aim was to give protection to vulnerable minorities. The Department had taken note of these views and would be looking in to the mater.
The Chairperson asked if there had been a call for public submission on this Bill.
The Department’s legal advisers conceded that there had not been a call for public submissions, but that the Department had circulated its ideas to some role players.
Professor Wouter de Vos Submission on Clause 22
Professor Wouter de Vos, Law Faculty, Rhodes University, suggested that the amendment to the Intestate Succession Act was ill advised. He noted that the Memorandum to the bill cited the Constitutional Court case of Gory v Kolver as authority for the amendment, but that the circumstances of this case had been overtaken by the Civil Union Act. Same sex life partners now had the option to formalize their relationship. He suggested that the effect of this amendment was to elevate same-sex life partnerships to a level higher than heterosexual life partners, as a survivor to such a partnership, who was not married, did not currently have any of the benefits to intestate succession nor the Maintenance of Surviving Spouses Act. Although the Domestic Partnership Bill would address the concerns of parties to a same-sex or heterosexual relationship insofar as intestate succession was concerned, it could not do so if the amendments now proposed under this Bill were signed into force.
Continuation of Briefing on Judicial Matters Amendment Bill
Ms Ross continued to brief the Committee on the Bill. She stated that Clauses 27 and 28 related to amendments to the Promotion of Access to Information Act (PAIA), and Clauses 29 to 31 related to the Promotion of Administrative Justice Act (PAJA). In respect of both the Bills there were changes being made to the rules of procedure, and the extending of the date for publishing regulations.
Open Democracy Advice Centre (ODAC) Submission on Clauses 27 and 28
Ms Alison Tilley, Chief Executive Officer, Open Democracy Advice Centre, indicated that between 2001 and 2007 the disputes around the Promotion of Access to Information Act (PAIA) had been resolved only in the High Court, due to lack of rules dealing with PAIA in the Magistrates Court. This made the process expensive and slow, and disempowered many people from exercising their constitutional and statutory rights. Originally the Rules Board was supposed to make rules effective in the Magistrates Court within twelve months of the coming into operation of the Act – which would have been from 9 March 2002. The Judicial Matters Second Amendment Act of 2003 had given an extension to March 2005. Rules had been drawn but were withdrawn in June 2006 to allow further consideration time to the minister. After further deliberations (which were described in the written submission) the Rules were finally approved by the Minister in February 2008 and tabled in Parliament on 19 February. She appealed to the Committee to “end this farce” and not extend the deadline for the passing of Rules, but rather address itself to the content of the Rules.
The Chairperson stated that the Rules were high on the Committee’s agenda.
Mr Deon Rudman, Deputy Director General, Department of Justice, conceded that the delay was too long and that attention needed to be given to the Rules as a matter of urgency.
Mr Y Carrim (ANC) added that he deeply regretted this seven and a half year delay. He felt that Parliament had indeed failed to exercise it oversight functions and it was no use referring the Rules to another body such as the Department, but rather it was the duty of Parliament to oversee and call for accountability when there was no action. By way of exculpation he added that this Committee was faced with a vast amount of work, and he felt that it might be necessary to split it into sub committees. In addition there were conflicting opinions about the correct procedure for approaching matters needing attention. He sincerely hoped that everything would be complete before the elections next year.
Ms Tilley quipped that she wished to see the regulations in place before she died.
Criminal Procedure Amendment Bill [B42-2008]: Department of Justice (DOJ) briefing
Mr J Jeffery (ANC) assumed the Chair.
Ms Kalayvani Pillay, Principal State Law Adviser, Department of Justice, described for the Committee the successful experiment in Kwazulu Natal (KZN) for postponement of criminal trials by audio-visual link, which was now set out in Clause 1 of the Criminal Procedure Amendment Bill (the Bill). She added that there were conflicting views about the accused’s rights to appear in a public court publicly and to consult freely with legal advisers of their own choice, as well as the transmission of documents relating to the accused, and whether such arrangements did not abrogate an accused’s constitutional rights. She added that the KZN experiment had been working successfully since 2005.
Ms Ross then explained the idea behind the amendments in clause 2, in relation to expungement of criminal records. Currently the only way to obtain the expungement of criminal records was to make a formal application, which was then referred to the State President. The number of these applications had led to a clogging of the processes, causing a huge administrative burden. Additionally, Clause 3 proposed to insert a new Section 271B, relating to various apartheid- era convictions. It was intended that these should be expunged automatically by the Criminal Record Centre of the South African Police Service (SAPS) which it was intended were to be expunged automatically. Certain other contraventions of legislation not listed, but which created offences based on race or promoted the principles of apartheid, and which would not have been offences in a free and open democratic society, could be expunged on the written application of the person against whom the criminal record was held.
A Member suggested that these offences should be treated in exactly the same way as convictions under the Child Justice Act. He pointed out that effectively an accused would serve his sentence, but would then find that, because of the criminal record, he was unable to secure employment, which was contrary to the Constitutional imperatives and the principles of equality. It had been claimed that such records protected public safety, but he pointed out that public safety would be better served by allowing people to engage in employment rather than resorting to crime. Perhaps an offences register would be more appropriate. The present process for acquiring pardons was legalistic and expensive, and most of all confusing to the persons needing pardons, and benefited only a few who had access to lawyers to make the applications on their behalf.
Adv Johnson asked whether the present system was in fact effective.
Adv L Joubert (DA) asked whether the Audio-Visual system of postponements was satisfactory, how it impacted on legal representation, and why consideration had not been given to the Courts to go to the prisons.
The Chairperson asked whether there was a need to legislate such matters He suggested that the proposals were made without consultation and had resulted in lacunae.
Mr Carrim suggested that a two handed approach or phasing-in was necessary, but he felt strongly that Parliament should be informed. This legislation was no different from any other where there must be consultation to canvass the public’s views, and that all submissions should be considered. The sole arbiter was Parliament, and Members did not come to deliberations or submissions with a predisposed view.
Civil Society Prison Reform Initiative (CSPRI) Submission
Mr Lucas Muntingh, Project Co-coordinator, CSPRI, noted that it was the duty of the Presiding Officer to assess the mental and physical condition of each accused who appeared before him. He proposed that no distinction should be made between a physical appearance and an appearance by way of an audio visual link, in determining whether there was anything prejudicial to the accused. He questioned whether the proposal Clause 159A(2)(e) was really necessary, as he proposed that all that was required was greater clarity and guidance for presiding officers. He noted that if there could be greater use made of audio visual appearances there would be a greater benefit to all.
With regard to the expungement of a criminal record, he submitted that there was a need to balance and equalise all interests, and that the interests of Society should not be downplayed
Mr Carrim asked that the issue of expungement should not be ruled out and that it be addressed.
A Member suggested that expungement was so momentous that it deserved a separate Bill. He suggested that expungement should not be considered without sufficient consideration and a weighing up of all the facts and that the process should not be rushed, for it required serious consideration.
Additionally he suggested that the subject of plea bargaining required more consideration, and what he termed an incremental approach.
Ms Ross reported that she was aware of a Private Member’s Bill designed to address this subject.
Mr Jeffery added that he felt that this would cover what had been raised. He added that what was required was more information about the types of crime for which a plea bargain was accepted, so that it could be determined what was being regularised. He felt that Clause 3 was fairly obvious.
Mr Carrim noted that the Committee was planning to finalise everything before 23 September 2008
Afternoon session is available here:
Scorpions Closure public hearings: Day 6 & response to public submissions
- Oral Submission on Amendment to Unlawful disposal of body of child Act
- Constitutional Court of South Africa: Case CCT 12/05
- Constitutional Court of South Africa: Case CCT 73/05
- Civil Society Prison Reform Initiative (CSPRI) submission
- Open Democracy Advice Centre submission on Judicial Matters Amendment Bill: Amendment to Promotion of Access to Information Act
- Fish Hoek Baptist Church Submission on Amendment to Unlawful Disposal of body of Child Act (Section 113 of Act 46 of 1935)
- Women’s Legal Centre Submissions on Judicial Matters Amendment Bill
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