Criminal Law (Sentencing) Amendment Bill: Department Response to public submissions

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Justice and Correctional Services

01 August 2007
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Meeting Summary

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Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
02 August 2007
CRIMINAL LAW (SENTENCING) AMENDMENT BILL: DEPARTMENT RESPONSE TO PUBLIC SUBMISSIONS

Chairperson:
Ms F Chohan Khota (ANC)

Documents handed out:
Department's response to public submissions
Extract from Prevention of Organised Crime Act: Sections 2 and 3
Criminal Law (Sentencing) Amendment Bill

Audio recording of meeting

SUMMARY
The Department of Justice presented a summary of all written and oral submissions to the Committee. The discussions covered during this session dealt only with Clause 1 concerns. Whilst the Association of Regional Magistrates and the National Prosecuting Authority supported the increased jurisdiction, it was objected to by a number of other bodies. These submissions suggested that in principle the highest sentence should be imposed by the High Court. The Committee did not agree that the status of the High Court was being diminished, and pointed out that already the Regional Courts, under specific legislation, could impose thirty-year sentences that effectively exceeded a “life” sentence.

The Department did not agree with all interpretive issues raised by the Association of Regional Magistrates but felt that if there were perceived problems then the wording could be clarified. Disparity between first and subsequent offence sentences, and sentences according to age of the victim, should be addressed. The Committee confirmed that the legislation had intended that Magistrates could impose sentences between fifteen years and life, although this was not being done in practice, and agreed that it would be useful to clarify the wording relating to suspension of sentences and alternative sentencing where substantial and compelling circumstances existed to justify departure from the minimum sentencing.
 
Basil King, Tshwaranang Legal Advocacy Centre and the Cape Bar Council had discussed the wording of “may” or “must” in relation to the sentencing after a finding of substantial and compelling circumstances, suggesting that “must” would hinder the discretion of the presiding officer. The Committee could not foresee any circumstances where such a finding could still lead to the minimum sentence.

Several submissions raised the issue of the application of life sentences to children and the Committee would discuss the issue further, feeling that the limitation of rights could well apply.

The exclusion of certain matters as the basis for a finding of substantial and compelling circumstances was raised by several commentators, although many seemed to miss the point that the grounds listed were merely excluded from forming the sole reason for the findings. Tshwaranang Legal Advocacy Centre suggested that further grounds be added. It was agreed that perhaps a redraft was needed to clarify the intention of the legislation. The Committee, considering the Open Society Foundation’s point on hardship to the victim should the breadwinner be imprisoned, noted that in principle the legislation must lean towards protection of vulnerable victims. The word “relationship” needed to be considered for re-definition.

The National Prosecuting Authority and the South African Human Rights Commission made assertions, that there would probably be a flood of appeals resulting from the increased jurisdiction. The Department pointed out that most matters should be initiated in the High Court, and statistics showed that very few cases referred to the High Court had attracted the minimum sentence. The Sexual Offences Courts should continue to deal with many matters. The assumption that magistrates would automatically apply heavier sentences if given an increased jurisdiction was challenged.
 
The Department’s further responses would be tabled in the following week.
 
MINUTES
Criminal Law (Sentencing) Amendment Bill: Department responses
Submission by Association of Regional Magistrates (ARMSA): Clause 1
Dr Lirette Louw, Legal Drafter, Department of Justice (DOJ), tabled a summary showing each clause of the Amendment Bill, with the comments that related to that clause.

The first four points made by the Association of Regional Magistrates (ARMSA) related to the same issue, a plea for increased jurisdiction for the regional court, alternatively increase in penal jurisdiction in respect of certain common law offences listed in Schedule 2 to the Act. Firstly they had indicated that Part I offences would justify a life sentence, and they argued that there should be increased jurisdiction of 25 or 30 years for other instances, if there were substantial and compelling circumstances that justified a harsher sentence than the general 15 years. Similarly for Part III offences magistrates were permitted to give 20 or 25 years, but also sought the ability to have jurisdiction increased. The options were included in point 4 of the summary. They had asked for an increase in penal jurisdiction, or alternatively an increase of jurisdiction of 25 to 30 years for offences under Schedule II. The current provision in Section 51(2) should be replaced with wording that noted that the sentence should not exceed 30 years of imprisonment.

The Chairperson asked for confirmation that presently regional magistrates were obliged to refer Part I of Schedule 2 matters to the High Court. This would be taken care of by extending their ability to impose life sentences. However, the possibility of referral where there were substantial and compelling circumstances, if there was no jurisdiction to deal with the differential between life and 15 years would also mean that they would need to stay proceedings and refer matters to the High Court. The question was how this could be dealt with. It seemed that in respect of Part I a provision similar to the current wording dealing with first, second and third offences should be inserted so that if a person was charged with a Part I offence, as a first offence, the magistrates could sentence to "not more than" the stipulated term.

Dr Louw noted that on page 3 of the summary, the National Prosecuting Authority (NPA) draft of such a proviso was set out under 1.4. She suggested that this could be used as a basis.

The Committee agreed that there was a gap. In practice the aim was to eradicate the practice of transferring from one court to another.

The Chairperson indicated that ARMSA had based its arguments strongly on the disparity currently existing in respect of rape, for first and subsequent offences. The general jurisdiction presently was ten years, for the first instance, rising to fifteen and twenty years for subsequent offences. The Bill had sought to increase the jurisdiction on a first time offender.

Dr Louw indicated that the magistrates were permitted already, for offences such as drug and firearm offences, to give sentences of up to 30 years. They had also argued that the ability to add a further 5 years should be increased.

Mr S Swart (ACDP) noted that there was also a discussion on the impact of being charged under Part II and III of the Schedule.

Dr Louw summarised the other offences in Part III. These included "rape, in circumstances other than those referred to in Part I".

The Chairperson felt that because regional magistrates could currently sentence to fifteen years for a first offence, it was perhaps not appropriate to raise this figure. However, there was still a problem with the disparity, particularly in regard to the arguments put forward on the age of the victim. The prosecuting authority always had the ability to institute a prosecution in the High Court. However, the Committee would need to discuss the issue further. It was not always known under which Part of the Schedule the matter would fall, although it would be clear in respect of a child rape, where the prosecuting authority was likely to know the age of the victim and the heinous nature of the crime. She suggested that the Department should ensure that the Committee could express itself more firmly on the stance the prosecuting authority should take, and the intentions of the legislation.

Imam G Solomons (ANC) asked for clarity whether it was possible for the regional court to impose a sentence less than life.

The Chairperson indicated that this was not yet clearly stated, but would be dealt with. She indicated the wording of the NPA submission that the Committee would try to adapt and implement for Part I.

Mr Johan de Lange, Principal State Law Advisor, Department of Justice, did not agree that there was a problem. His interpretation differed from that adopted by the magistrates, but he thought there was no harm in clarifying the wording if it was causing problems.

The Chairperson indicated that it was never the intention that if the magistrates did not impose a life sentence, they would have to impose fifteen years. They could be empowered to impose sentences of between life and fifteen years. The interpretation given by the magistrates themselves differed. It was also never envisaged that they would refer matters to the High Court even when they believed that a fifteen year sentence under Part I would be applicable, although in practice this was happening. The principle to abolish the transfer of proceedings should apply uniformly.

Mr Swart asked whether there was correlation between the Sexual Offences Bill and the wording of the current legislation.

Dr Louw indicated that the wording had been amended by the schedule to the Sexual Offences Bill.

The Chairperson asked if this could be extrapolated for the Committee in a new Schedule, for ease of reference.

Mr Swart asked whether the references to "girl" would now include "boy". Dr Louw confirmed that "girl" was deleted in Part I and the reference was now to "person".

Dr Louw confirmed, on request by Mr Swart, that the reference to the additional five years was included in the proviso to section 51(2) (page 3 of the Bill).

Dr Louw proceeded to point 5 of the ARMSA submission, which was asking the legislature to clarify whether Section 51 applied, and whether the Court was free to suspend the whole or a portion of the sentence where a lesser sentence was imposed due to a finding of substantial and compelling circumstances justifying such lower sentence.

The Chairperson said that the suspension of sentences only came into play in Part IV. She did not think that a suspension clause could apply where substantial and compelling circumstances did not exist. Therefore the subsection (5) should not apply. She asked if magistrates had the ability to suspend any sentence that was imposed.

Dr Louw indicated that they could suspend any portion.

The Chairperson asked if there was anything in the law or interpretation to prevent suspension if there was to be an increase of over fifteen years. If the clause was written to say that any sentence up to fifteen years could be suspended, then there might be a problem. She asked the Department to check whether there was anything in the wording that created a problem.

Mr de Lange said that even if substantial and compelling and circumstances were found to justify a lower sentence, the sentencing would strictly speaking fall under this clause, and this was being interpreted by the magistrates as suggesting that they could not use suspension. He suggested that it be clarified, by amending Section 55(1) and other similar clauses to refer to "mandatory sentence".

Dr Louw read out Section 297(4) of the Criminal Procedure Act, which was the general section dealing with suspension. This referred to "any law where the law prescribed minimum punishment" and was perhaps contradictory on the face of it, although suspension was excluded specifically in some other Acts.

The Chairperson asked the Department to make it clear that where there was deviation from the mandatory sentences, then suspensions could be ordered.

Dr Louw reported that Point 6 of the ARMSA submission asked that the legislature should make clear the application of Section 276(3) of the Act; whether magistrates would be able to impose correctional supervision. The problem was that the magistrates did not agree on the interpretation of this section.

The Chairperson asked that the redrafting of subsection (5) should clarify this point. She also suggested that it might be useful to discuss the matter further with Mr Adriaan Bekker, President of ARMSA. The intention  of the legislation was to provide for a minimum sentence, except where there were substantial and compelling circumstances, in which case any other alternative sentence, including suspension or fines, could be given.

Dr Louw noted that the last submission from ARMSA related to the application of Section 73(6)(b)(v). If a lesser sentence was given under section 51(3) the question was raised whether this amounted to imprisonment "as stated in section 73(6)(b)(v)". This section was under amendment at the moment by the Correctional Services Bill.

The Chairperson was not sure whether this section was ever implemented or was even into effect. Once again she suggested that the Department should check how the magistrates were interpreting it.

Submission by Basil King: Clause 1
Dr Louw indicated that Basil King had suggested that there appeared to be an exclusion of Section 297(1)(a) of the Criminal Procedure Act, and suggested that "may" being substituted for "must" meant that the matter could not be postponed for sentence.

Mr de Lange indicated that this theme had been repeated in several comments. The Department could not see how a court could find that there were substantial and compelling circumstances justifying a lesser sentence, and then decide that the minimum sentence must still be imposed. No harm would be done in leaving the current wording, but it was unclear whether there was in fact a problem.

The Chairperson said that if substantial and compelling circumstances were found, it was obvious that a lesser sentence would be imposed, pursuant to a finding that the minimum sentence was not appropriate. It seemed that this should be worded as "must". It might assist those who had interpretation problems.

Dr Louw noted that the next point raised by Basil King related to subsection 3(aA), claiming that it was in conflict with the Malgas judgment and could result in a constitutional challenge.

The Chairperson indicated that there would probably be a constitutional challenge, but the point was whether this would succeed. Some further submissions, particularly on the relationship issues, were still awaited, and the Committee should start to think about its views. These were factors invoking much emotional response. The most serious of the three new exclusions, related to the evidence of a previous relationship. Some of the submissions suggested that the courts should be more lenient as the victim would suffer other detrimental consequences should the breadwinner be imprisoned for life. However, this danger should be balanced against the risk to the victim. This Committee had also passed legislation that effectively preventing those who committed sexual offences against children from the working or being in the vicinity of children, and should bear in mind that its own messages should be consistent. The Committee would need to consider whether it wished to make a strong statement itself, or whether this should be left to the discretion of the courts. The principle was that the fact of a relationship should not, on its own, be allowed as a substantial and compelling circumstance to justify a lower sentence.

Dr Louw noted that Professor Terblanche had suggested a re-draft to make this clear.

Mr Swart cautioned that the Committee should make it clear that its prime concern was to assist vulnerable children. He had been concerned to hear that many victims did not assist the prosecution.

Imam Solomons agreed. It was difficult to put this into legislation, but perhaps the Department of Social development should be advised of the issues.

Mr Swart asked if "relationship" could also mean a teacher / pupil relationship.

Dr Louw said that Prof Terblanche had raised this point and had suggested that this be reworded as "a close personal relationship".

The Chairperson thought that this could include a teacher, or other relationships of trust. She agreed that the Department should redraft the wording.

Dr Louw noted that Mr King had also raised a point on Section 51(5), which the Committee had already considered.

Mr King's point 4 suggested that the wording of Section 51(6) was unnecessary, and may lead to revising of the Brandt  judgment, due to the differentiation of ages.

The Chairperson indicated that the issue of ages would need to be further discussed. Most commentators dealing with this issue were opposed to applying minimum sentences to accused persons under the age of 18. The constitutional provisions, as set out by the Child Justice Alliance, had perhaps not addressed how far the rights pertaining to children could be departed from, in cases of serious crimes such as gang rapes, serial rapes, murder and other heinous crimes. Her feeling was that some form of limitation should be applied. Part of that was conceded in the "last resort" element, which accepted that imprisonment could be the only appropriate solution. She thought that it was necessary to look at similar mandatory situations applied in other jurisdictions, and to find a way of expressing the matter better.

Mr Swart indicating that there had been extremes where far too lenient sentences had been imposed for a juvenile rape. He pointed out that adults would use juveniles in their gangs already to commit certain offences because the sentences would be less severe, and he was concerned that this should not become entrenched.

The Chairperson indicated that all serious crimes involved severe damage to the victims and the extent to which limitations should apply must be considered.

Tshwaranang Legal Advocacy Centre (TLAC) submissions: Clause 1
Dr Louw indicated that Tshwaranang Legal Advocacy Centre had also raised the "may" and "must" argument, linked to the heading to section 51.

The Chairperson indicated that there were three possible models, and the one currently adopted used "discretionary" minimum sentence, unless the Court found circumstances that indicated that justice would best be served by another sentence. The reference to "discretionary" was the basis on which the Constitutional court had found that the legislation passed constitutional muster.

Dr Louw indicated that the next point dealt with the exclusion of the three circumstances from substantial and compelling circumstances. The TLAC believed that insufficient grounds were listed, that there was a need to strike a balance on the "relationships", and that an additional ground under subsection (3)(aA) should be "perceived lack of psychological impact on the complainant".

The Chairperson indicated that the Committee was awaiting further submissions on the relationships. The Centre had also raised the fact that the fact that the accused would lose employment was also used by itself as a substantial and compelling circumstance. The Committee could not try to pre-empt every reason to be preferred by the Court, nor produce a long list that would narrow the presiding officers' discretion. A substantive discussion on these factors was needed. The Committee should perhaps adopt a narrower approach in its drafting, but as a matter of principle should convey the sense that those factors by themselves could not be substantial and compelling circumstances.

Redpath and O'Donovan submission: Clause 1
Dr Louw noted that these submissions had argued that an increase in the Regional Courts' jurisdiction would lead to heavier sentences, and that the proportions of those receiving earlier releases would also increase. The Committee had questioned these assertions at the time of the submission. They did not address drafting issues.

NPA submission: Clause 1
Dr Louw noted that the NPA did not foresee any constitutional problems with granting the regional court jurisdiction to impose life sentences. They did not believe, however, that the proposed procedure would expedite the finalisation of serious criminal cases, pointing out that the High Court had a continuous roll.

Mr de Lange indicated that cases presently being prosecuted in the High Court from the beginning would continue to be prosecuted there. The intention of the amendments was to avoid delays arising from the split system.

Dr Louw indicated that there were other initiatives in the Criminal Justice Review that were addressing some of the problems mentioned by the NPA.

NPA foresaw that long terms of imprisonment would be imposed, and that there would be numerous appeals.

The Chairperson did not agree that regional court magistrates would necessarily increase the sentences. Most of the serious matters would in any event be prosecuted in the High Court. The only reason why a regional court would venture to impose the life sentence, as pertaining only to Part I matters (not a general increase of jurisdiction), was where the cases had not been prosecuted in the High Court because it was not apparent up front that the matter was a Part I matter. In these instances, the Regional Court would no longer have to stay proceedings and refer to the High Court, but it was only in a small number of cases that this would happen. The idea that there would be a flood of longer sentences was unfounded, particularly since there was a mechanism for automatic appeal. Her sense was that the magistrates would proceed cautiously.

Mr Swart agreed there would be few circumstances where regional courts would need to impose that sentence.

The Chairperson noted also the roll out of Sexual Offences Courts, where the infrastructure was geared to young victims, CCTV and support systems. The types of cases currently being prosecuted in these courts would continue, and because there were expert prosecutors, magistrates, counsellors and social workers, they would continue to deal with the matters adequately. Whilst these matters could certainly be prosecuted in the High Court, if no intermediary services were needed, it was more likely and desirable that they continue in the specialist courts. It was here that the increase in jurisdiction would play a larger part. However, the idea that magistrates would automatically apply heavier sentences was incorrect.

Dr Louw said that the NPA also suggested that the expedition of criminal cases could be assisted if there were not an automatic right of appeal, The Shinga judgment would have an impact on the roll of the High Court, and NPA suggested that instead there should be automatic review, to be done by a judge in chambers. Dr Louw indicated that only about 10% of cases attracted a life sentence.

The Chairperson pointed out that because not all cases in Part I would be prosecuted in the regional court there would not be an automatic right of appeal in every case. It would probably be limited to child rape and one or two other categories. Once again, she did not believe that there would be a huge increase in appeals. 

Mr de Lange added that only 7% of those cases transferred to the High Court from the Regional Court resulted in life sentences. Substantial and compelling circumstances were found in 93% of cases. The fact that the magistrates were now being given the discretion to find substantial and compelling circumstances, and the fact that most Part I matters would be initiated in the High Court should be sufficient balances.

The Chairperson agreed that the presumption by commentators that all cases presently being transferred would attract life sentences was clearly not correct.
 
The NPA suggested that Section 51(2) could be redrafted so that the jurisdiction of magistrates was increased, that the power should be given to magistrates to find substantial and compelling circumstances, but that the referral procedure must still apply where these circumstances were not found.

The Chairperson indicated that if a person was charged with a range of matters, and where only one would attract a life sentence, then the whole range of matters must be referred.

Dr Louw said that this was dealt with in Section 52(a) of the current legislation.

Mr de Lange said that this suggestion would address some issues, but the downside would be that matters would still need to be transferred from Regional Court to High Court. The risk of secondary trauma remained. The Department felt that the single system, coupled with a right of appeal, was preferable.

The Chairperson said that potentially all cases involving children would be transferred and she did not think that this was a good option.

Mr de Lange agreed. It would be a better option than not doing anything, or in the event that the Regional Court was not granted the increased jurisdiction to impose a life sentence. This was not a new suggestion.

Dr Louw reported that the NPA had supported the grounds excluded under substantial and compelling circumstances, as well as the provisions relating to suspension.

NPA had suggested that the wording relating to "an accused person" must be clarified in section 51(5).

The Chairperson did not have a problem with this.

The NPA had finally suggested that there must be an amendment to the Prevention of Organised Crime Act.
She tabled a suggested wording and noted that this could be addressed by deleting Sections 3(2)(ii) and (3) because that would inherently give regional court magistrates jurisdiction beyond the current situation.

Mr de Lange said that the discussions with Mr Willie Hofmeyr of the NPA indicated that there had not been a single prosecution in the Regional Court so far, and that the Department did not feel that there would be any problems. He reminded Members that if at any stage the prosecuting authorities became aware that the matters were more serious than they had been presumed to be, they had the option to convert the matter in the Regional Court to a preliminary enquiry, and to commence the prosecution in the High Court.

The Chairperson indicated that the amendments would apply in a similar way to the firearms legislation. She asked the Department to confirm formally that the NPA would be happy with this amendment.

South African Human Rights Commission(SAHRC) Submission on Clause 1
Dr Louw reported that the SAHRC was opposed to the increase of the jurisdiction and feared that the automatic right of appeal would lead to delays in the High Court.

The Chairperson said that this was based on the presumption that all matters would be dealt with at Regional Court, which would not happen.

SAHRC supported the deletion of the three grounds under substantial and compelling circumstances, but wanted broader debate on sentencing rape perpetrators. They suggested that perhaps other grounds should be considered.

Other issues raised related to the application of the legislation to children, which would be covered in the debate.

Open Society Foundation (OSF) Submission on Clause 1

Dr Louw reported that the
OSF remained unconvinced that an increase in jurisdiction was appropriate. The submission also addressed the hierarchy of the Courts, and stated that the highest sentence should as a matter of principle be passed by the High Court.

The Chairperson noted that the issue of status seemed to concern quite a few of those making submissions. However, it must be remembered that this extension was limited to categories in Part I of the Schedule. In regard to the perception that the status of the High Court would be lessened by allowing increased jurisdiction, she felt that the hierarchy of the court was not dependent on the issue o sentencing alone, and that the High Court was distinguished rather by the appeal procedure, which remained intact. In regard to the concerns that a lower court should be able to impose a life sentence, she pointed out that the limitations under the firearms legislation, which came before the Regional Court, was thirty years, which effectively could exceed a life sentence. A number of the Part I matters were being dealt with by the Regional Court and it was not logical that there should be no objections to the matters being tried, but to raise objections to sentencing by those courts.

Mr de Lange noted that of course the lower courts were bound to precedents set by the higher courts. In the 1980s there had not been any objection to the Regional Courts having received an increase in jurisdiction to make a finding of guilty to murder.

Dr Louw reported that the OSF had also suggested that instead of increasing the jurisdiction, all matters requiring the life sentence should be instituted as high court prosecutions. If the jurisdiction was to be increased, it called for automatic rights of appeal (which was included).

OSF had also felt that an increase in jurisdiction would open the door to renewed challenge on the grounds of proportionality. Whilst it did not disagree with the existing content of the list under subsection (3)(aA), it believed it was too limited.

Finally the OSF suggested that imposing a minimum sentence on a child would be directly contradictory to the Constitution, as minimum sentences were to be regarded as the first or only resort.

The Chairperson indicated that these points had been dealt with earlier in the meeting and would be discussed.

Centre for the Study of Violence and Reconciliation (CSVR) submission on Clause 1

Dr Louw said that the main point of the
CSVR submission was that the life sentences should only be imposed by the High Court.

 
Cape Bar Council (CBC) submission on Clause 1
Dr Louw indicated that the CBC supported the provisions, including those directed at more efficient and expeditious completion of criminal trials. It was not entirely happy about giving the life sentence jurisdiction to the regional court, but agreed that this was balanced by the automatic right of appeal.

The CBC had suggested also that the "may" and "must" wording in respect of substantial and compelling circumstances needed discussion. CBC was opposed to the use of the word "must" as it was considered an unwarranted intrusion into the court's discretion, and suggested that the word "may" should remain.

The Committee reiterated that it could not see circumstances where this would be a problem.

Prof S Terblanche Submission on Clause 1
Dr Louw tabled a summary of the main submissions by Prof Terblanche, who was not in favour of giving increased jurisdiction for a number of reasons set out, including the hierarchy of the courts, the competence of magistrates, and the fact that parole would have to be considered by the court imposing the sentence.

The Chairperson reiterated that most of the matters would be prosecuted at the High Court. There were suggestions that in KwaZulu Natal there might not be sufficient high courts to deal with the matters, but there was of course a possibility of allowing the prosecution services to deviate from the preferred policy in cases of impracticality. She asked that this be discussed between the NPA and the legal drafters.

Dr Louw mentioned that Professor Terblanche felt that Section 51 (6) should be amended since it should not apply to any child offenders. The Committee had discussed this.

His third point had also been dealt with, questioning whether the automatic right of appeal would not cause a backlog in the High court.

Prof Terblanche submitted that in determining whether there were substantial and compelling reasons for a lesser sentence, along the lines of the Malgas  decision, the cumulative effect of the circumstances should be considered. He had suggested a redraft of subsection (aA).

The Chairperson said that there were elements of the re-draft that she liked, but this redraft did not convey the principle that the circumstances should not be considered 'by themselves'. She suggested that the draft be used as the basis to be added to by the legal drafters.

Prof Terblanche had suggested that “previous sexual history” was tautologous and had suggested “relevant sexual history". She agreed about the tautology, but did not agree that “relevant” should be used

Dr Louw suggested that the drafters should check and attempt to align this with the wording from the Sexual Offences Bill.

Dr Louw said that in regard to the substantial and compelling circumstances, Prof Terblanche did not support the deletion of the first ground, because he suggested that there was a likelihood of inappropriate sentences if sexual history of the complainant could never be taken into account.

The Chairperson felt that he had missed the point that such history, by itself, should not be considered.

Prof Terblanche supported the deletion of the second aspect of cultural or religious grounds. He suggested that the third factor, relating to "relationship" was too wide, as already discussed this morning, and suggested that perhaps "close personal relationship" was better used.

Prof Terblanche.

 

e submitted that the heading to section 51 should not be changed. This point was correct.

Prof Terblanche submitted that if rape as contained in Part I of Schedule 2 was moved to Part II regional courts would have the authority to try and to sentence all cases of rape, and he did not support this principle. Although ARMSA too had argued that this offence be moved, they had argued that it be moved the opposite way. He submitted a number of points in support of his argument.

Prof Terblanche had supported the idea of policy directives under Section 21.

Dr Louw pointed out that he did not deal with murder and other offences.

The Chairperson suggested that the remainder of the responses to the submissions should be considered on Tuesday 7 August, and that a new draft could then be prepared for consideration by the Committee the following week. She asked that the Committee Members be furnished with copies of the judgments referred to, particularly on the issue around proportionality.

The meeting was adjourned.


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