A summary of this committee meeting is not yet available.
JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE (& PROVINCIAL AND LOCAL GOVERNMENT PORTFOLIO COMMITTEE)
28 August 2007
CONSTITUTION 13TH AMD BILL: RESPONSE TO PUBLIC SUBMISSIONS; CRIMINAL LAW (SENTENCING) AMD BILL: DELIBERATIONS; REPEAL OF BLACK ADMINISTRATION ACT AMD BILL: BRIEFING & ADOPTION
Chairperson: Ms F Chohan (ANC) (joined by Co-Chair Mr S Tsenoli (ANC) for portion on Constitution Thirteenth Amendment Bill
Documents handed out:
Department (DOJ) Schedule of timeframes for preparation of legislation on role of traditional leaders
Department response to submissions on Constitution Thirteenth Amendment Bill (and Municipal Cross Boundaries Amendment Bill)
Kwa Zulu Natal Provincial Legislature input
Criminal Law (Sentencing) Amendment Bill: working draft as of 28 August 2007
National Prosecuting Authority submission on Criminal Law (Sentencing) Amendment Bill
Repeal of Black Administration Act & Amendment of Certain Laws Amd Bill [B34-2007]
The Department of Justice briefed the Committee on the reasons for the Black Administration Act and Amendments of Certain Laws Amendment Bill. It was noted that sections 12 and 20 of the Black Administration Act remained in force when the rest of the Black Administration Act was repealed, to keep in force sections in respect of traditional leaders, pending the drafting of new legislation. The clauses were due to be replaced by other legislation, and thus repealed, by 30 September 2007. The Department sought now to extend that date to 30 June 2008 as it was clear that the necessary legislation could not be drafted by September. The Department tabled a schedule showing the proposed time frames for consultation, drafting and approval. The Committee requested the Department specifically to advise it of any slipping in those schedules to enable it to take corrective action. Members voted unanimously to adopt the Bill.
The Departments of Justice and Provincial and Local Government briefed a joint session of the Portfolio Committees on Justice and Provincial and Local Government on the submissions received to the Constitution Thirteenth Amendment Bill, as well as submissions with related points received on the Municipal Cross Boundaries Amendment Bill. The Department took the Committee through the summary of submissions. Each of those submissions was then discussed. Members raised questions in relation to the lack of prescription on the factors to be taken into account for provincial boundaries, the role of the Municipal Demarcation Board, who had held hearings, the plans for transfer of public assets and service delivery, and the position with budgets and services from March 2006 to April 2007, and after April 2007. Members commented that it might be useful for the Department to formulate responses to the people making the submissions, and commented that many comments were indicative of lack of information from the Department. The suggestion for a referendum was raised and discussed, and the results of a reversal and re-demarcation were explained. Members discussed the public submission process, what the Court had said about consultation and engagement, and the suggestions of the Department of Provincial and Local Government to the Eastern Cape and KZN legislatures on the public engagements. Joint hearings were likely. Further discussions related to service delivery and the most appropriate solutions.
The drafters then briefed the Committee on the most recent changes to the Criminal Law (Sentencing) Amendment Bill. It was noted that there had been changes to the proposed wording for Clauses 51(2), three options now existed for Section 51(3)(aA), 51(3)(b), the new section 53A, which had now been approved by the National Prosecuting Authority, Part IV of Schedule 2 and Section 309 of the Criminal Procedure Act. The NPA had commented on the option in respect of the amendment to the National Prosecuting Authority Act. The Committee requested further input from the NPA as to why they were unhappy with policy and directives being mentioned. The Schedules would still be amended in respect of compelled rape.
Repeal of Black Administration Act and Amendment of Certain Laws Amendment Bill: briefing
Mr Lawrence Bassett, Chief Director: Legislation, DOJ, referred the Committee to the Memorandum on the Objects at the end of the Bill which explained the objectives indicated that this short piece of legislation was described in the of the Bill. The principal Repeal Act had been passed in order to repeal the Black Administration Act (BAA), but certain sections were to remain in force in order to avoid a legal vacuum, until other legislation could be passed. Sections 12 and 20 of the BAA dealt with the functions of traditional leaders, and these would be dealt with in other legislation to be drafted. There was a "sunset" clause that was due to expire on 30 September 2007.
The Department had commenced working on substituted legislation in 2005 but soon realised that there were problems with conflicting issues. It was clear that more research was needed and after a Task Team was appointed, the Department had drawn a timeframe for development of a policy framework and promotion of the necessary legislation. That would clearly not be finalised by September 2007, and thus the Department was tabling this Amendment Bill to extend that date to 30 June 2008.
Mr Bassett took Members briefly through the schedule, and indicated that the policy framework should be finalised by end August, leaving September and October for consultation with the National and Provincial Houses of Traditional Leaders. The final policy framework would be submitted at the end of October 2007, and the draft legislation introduced into Parliament in November 2007. This legislation, to be Section 76 legislation, would be submitted to the National House of Traditional Leaders in December 2007, would be promoted in the National Assembly in February and March 2008 and in the NCOP in April to June. From April to June the Department would also finalise rules and regulations so that these would be ready for implementation once the Bill was passed.
The Chairperson requested that the department should advise the Committee if it were to fall behind on any of these time frames so that it would be aware of any problems well before 30 June 2008.
The Committee voted unanimously to approve the Bill, without any amendments.
Constitution Thirteenth Amendment Bill : Department response to public submissions
Mr Johan Labuschagne, Director: Department of Justice, tabled a summary prepared of the submissions received on the Constitution Thirteenth Amendment Bill. He noted that these were submitted as a result of the publication of a call for submissions in the Government Gazette, a press release and some were submitted also pursuant to the related Cross Boundary Municipalities Law Repeal Amendment Bill. He proceeded to take the Committee through the submissions.
Mr M Gcabo opposed the Bill. He submitted that certain factors needed to be taken into account when boundaries were to be changed. Mr Labuschagne commented that the Sections 24 and 25 of the Local Government Municipal Demarcation Act quoted in fact related only to considerations in respect of municipal boundaries, and did not apply to provincial boundary changes. Mr Gcabo further claimed that the people of Matatiele, by challenging the Constitution Twelfth Amendment Act (CTAA) had clearly indicated their wish to remain in Kwa Zulu Natal (KZN) He further commented that Section 2 of the Constitution militated against incorporation of Matatiele into the Eastern Cape. Mr Labuschagne had noted the exact wording of this Section in a footnote.
The South African Council of Churches had said that the Bill and the Cross Boundary Municipalities Laws Repeal and Related Matters Amendment Bill (The CB Bill) dealt with technicalities. However, the Matatiele case clearly indicated that democratic participation was not a technicality. It further raised questions as to how the demarcation would affect the transfer of public service and officials, and queried the plans to ensure access to three basic services. It pointed out that Bisho was 700 km from Matatiele, whereas Pietermaritizburg was only 200 km distant. Lastly, it cautioned that the matter of dealing of communities as people, rather than organisational bodies, was complex.
The third submission was from the Eastern Cape Provincial Legislature and indicated that the Legislature supported the introduction of the Bill into Parliament. There was no comment on the contents.
Matatiele / Maluti Mass Action Committee, one of the applicants in the Matatiele case had given a comprehensive submission, which in effect opposed the move of Matatiele to the Eastern Cape. The Action Committee believed it had the support of the majority of the citizens. It intended to demand a right to public involvements at the KZN legislature and required an opportunity to address that legislature when it was to vote on the Bill. The Action Committee indicated that the majority of citizens wanted to live in KZN, and had good reason to do so. The government had not advanced any convincing reasons why they should be removed. The Action Committee said that Government, including the National Assembly and National Council of Provinces (NCOP), did not act responsibly and in an accountable manner and that rights of dignity and self-respect were not respected, for a number of reasons set out.
The KZN Provincial Legislature had noted the Bill but had decided that the Legislature was at that stage not in a position to hold public hearings. It would consider doing so once the Bill had entered the NCOP cycle.
Three submissions were received after the press statement issued by the Chairperson of the Justice Portfolio Committee. Mr R Longden Thurgood raised the question whether the manner in which decisions were made had lacked democratic public involvement . He proposed that the Constitution be amended to insert a clause requiring full democratic involvement of the affected residents, and a local referendum, which should not be a burden on the municipalities' budgets.
Ms M Horn felt that constitutional amendments should be kept to the minimum. She submitted no comment on this particular amendment.
Mr P Dewes submitted the comments very similar to those of the Maluti and Matatiele Mass Action Committee.
Mr Labuschagne then went on to detail the submissions that had been received in response to the CB Bill. Matatiele Local Municipal Council wished to remain in the Eastern Cape.
Mr K Moeti, on behalf of the Community of Matatiele, said that this community perceived that boundaries were conducted on ethnicity and customs. It claimed that no "hearing" was held by the Eastern Cape Legislature. The community claimed that it was still receiving services from KZN and would never receive them from Eastern Cape. It raised the issue of the travelling distance and time to Bisho.
The Manguzela Traditional Council maintained that Matatiele and Maluti must form one progressive municipality.
Contralesa Maluti agreed, suggesting that this one municipality should fall under the Eastern Cape.
Ward 21 Matatiele Municipality said that communities had been consulted and believed that the Matatiele Local Municipality should remain in the Eastern Cape. They said service delivery and public participation had improved since the move to Eastern Cape.
Eastern Cape NGO Coalition supported the Bill and said that before incorporation into the Eastern Cape, it had been difficult for government to bring services to these areas. A number of factors had impacted on poor service delivery.
The ANC Youth League supported the incorporation into Eastern Cape. It commented that prior to the CTAA, Matatiele had little service delivery. Now consultations relating to governance had taken place.
The Matatiele Youth Council claimed that the Eastern Cape Provincial Government had been visible in the area and there was improved public participation. It supported the move to Eastern Cape
Mr M Gcabo also submitted comment on the CB Bill, incorporating the same comments as he had submitted in respect of the Constitution Thirteenth Amendment Bill. Mr Labuschagne noted that the Matatiele Local Council had attached 33 pages of signatures in support of its submission. The Youth League attached a list of 150 people. All organisations were representing numerous people.
Mr S Tsenoli (ANC) asked for general comments.
Ms Chohan thought it would be useful to go through the submissions.
Discussion on Gcabo Submission
Mr W Doman (DA) said that certain factors had to be taken into account when municipal boundaries were changed, but he was not sure that there was such a prescription for provincial boundaries. He noted that the Municipal Demarcation Board (MDB) had been asked to assist in this matter.
Dr Petra Bouwer, Executive Manager: Compliance, Department of Provincial and Local Government (DPLG), said that there were no criteria for determining provincial boundaries set out in any legislation. MDB could not change provincial boundaries, as stated by the Court in the Matatiele case. The decision to ask the MDB to assist was taken in a very limited context: they had the technical vehicles, or the maps, to assist in reaching the provincial boundaries. The first request had specifically noted that certain maps were being published at the request of the Minister. These were not demarcations. The Constitutional Court did indicate that government, on any piece of legislation, must ensure relevant purpose and rationality, but apart from that general principle there was nothing specifically in relation to provincial boundaries, which were therefore to be decided by Parliament.
Mr Tsenoli noted that the MDB, ahead of the Constitutional Amendment, needed to deal with the incorporation of Maluti and Matatiele into a singe entity.
Dr Bouwer confirmed that this was correct. The Minister had requested MDB to publish maps. At the same time the implication was that these should give an indication of how to configure municipalities within the new boundaries, to get away from the past situation where some municipalities had straddled provincial boundaries. After the passing of the CTAA, the Demarcation Board had finalised the demarcation process and confirmed the municipal demarcations within the provincial boundaries. The same would apply to any further processes to change the provincial boundaries; again the Demarcation Board would be asked to comment on municipal boundaries.
Mr Doman asked who had held the hearings and made the recommendations. He assumed that there had been confusion about their role.
Dr Bouwer responded that the MDB had held hearings to enable them to reach a conclusion on how it was possible for them to configure municipal areas. The Minister also then met with some communities to engage with them and try to resolve issues. During this process, he had stressed that Parliament would make the ultimate decision, and urged the communities to engage also with the parliamentary processes. It had always been the intention to drive public engagement through the legislative processes. This was done elsewhere, but not in KZN, which failed to hold hearings.
Discussion on SA Council of Churches (SACC) Submission
Mr S Mshudulu (ANC) posed a general question. He asked the legal team to try to indicate if there was a common approach, as this would have to be weighed against the judgment. Without questioning the good faith of any of those making submissions, he noted that the question of mobility was important. He would tend to think that the group submissions must represent a fair sector of the community. He noted that some were claiming that there had not been consultation.
Mr Doman thought that the SACC were indicating that their submissions had not been listened to. There were extensive hearings, and although they may not have received the feedback they wanted, the process had been followed and there was engagement. He thought their comment was not entirely correct.
Ms Chohan pointed out that the SACC indicated that service delivery was the most important point. She was not sure what SACC was suggesting. On the one hand it had referred to an increased budget for Matatiele but on the other hand said that they did know how people would benefit. It was notable that Matatiele had for all practical purposes fallen under Eastern Cape since March 2006, so the situation was rather different from the time that the CTAA was debated and passed. SACC had posed the question what concrete plans were made for transfer of public service, roads, and access to services. She asked if there had been transfer of officials. The last briefing had mentioned that this was an area that was earmarked for Project Consolidate, and she asked what this would mean in future.
Dr Bouwer commented in general on the submission. The crux of it was captured in the second point; where the SACC indicated that the matter dealt with technicalities and the drawing of boundaries. A representative of the SACC had phoned Dr Bouwer, under the impression that the entire process was beginning from scratch. When informed that only certain parts were being re-enacted, he commented that this was then a technical issue. SACC’s submission was merely suggesting matters that should be taken into account when reconsidering the matter. The distance to Bisho was a geographical reality and the SACC had not attempted to suggest that the people of Matatiele would have to travel there, and were therefore being prejudiced. The SACC was merely, in his view, indicating certain problems that should be considered in reaching a final decision.
Dr Bouwer added that in regard to Matatiele itself, it was possible for National Treasury (NT) and DPLG, when new configured municipalities were created, to readjust their budgets, allocations and grants. NT had a challenge in regard to provincial budgets, because of the timing. That was why it was necessary, for the first year, to set up protocols between provinces to cover personnel and budgets. These protocols ended in March 2007. Provincial budgets were aligned from 1 April 2007. It was true that some services may still have been received from the “former” province between March 2006 and April 2007. Project Consolidate had officially ended in Matatiele itself, but the DPLG was looking at the Five Year Local Government Agenda and Matatiele was included in these initiatives for hands-on support. The idea of this initiative was for every department, National and Provincial, to give support to local municipalities.
In response to Mr Tsenoli asking if either Department had responded to the persons or institutions making the submissions, Mr Labuschagne said this had not been done.
Mr Tsenoli said that it might be useful to address those making the submissions. Many comments were indicative of poor information, and some issues were political.
Mr Tsenoli added that when the people of Matatiele had come to make their comments, there was lack of consensus amongst their traditional leaders. At the time the Committee had noted that the affected provinces had a veto and it was decided to send the submissions to each of the four Committees (two from NA and two from NCOP) that were charged with the matter. He questioned a remark by Mr Doman that there seemed to be majority consensus on the issues at the time.
Ms Chohan thought that the issue of consensus must be discussed. She noted that there was also a suggestion that a referendum would be more appropriate. She said that it was necessary to comment upon the view that provincial boundaries should be set according to what people wanted. This could not be the only factor, and it must be balanced against other factors. If 90% of the population of an area said that they wished to go to X province, and this was done automatically, this would have an adverse effect on a new democracy. She cited the example of Oranje, who might wish to form a separate province, despite the fact that this would clearly not be in the best interests of the country. Perhaps referenda would become more opportune as the democracy matured. She noted the time lapse between the passing of the CTAA and the discussions on this Bill. There was probably now a greater spread of opinion, but a balance must still be found that would address practical issues, sentiments and service delivery. The people should not be disadvantaged. Ms Chohan asked what would happen from a practical point of view, in terms of service delivery, budgets and transfers, should the Committee decide to re-demarcate the provincial boundaries,
Dr Bouwer reminded the Committee of the maps he had shown at a previous meeting. The first issue was what was in fact “the old Matatiele”. Maluti had always been an integral part of Matatiele, and to confine discussions only to Matatiele itself would be to look only at the urban areas. If Maluti were excluded from considerations, this would affect the equitable share, which was based on numbers of people. Any changes would affect both transferring and receiving provinces. Factors such as informal settlements must also be considered. There was a danger that moving Maluti-Matatiele back to KZN could impose a burden which KZN could not handle. All provincial and local government budgets would have to be undone if there was a move. The latest Divisions of Revenue Act (DORA) said that notwithstanding a change of boundaries, no funds could be transferred until the following financial year. In practice, functions and staff had been transferred and would have to be undone if there was a re-demarcation. Once again, this begged the question whether the Maluti deployments would also be affected. Formally, the boundary issue related to Matatiele only. In practice it would affect Umzimkulu and the other areas. He said that if there were challenges in respect of service delivery, then those should be addressed not by a political response, but by institutional improvements to directly correct the challenges.
Mr Mshudulu wondered if national government should not then address the question of the equitable share. National Government had to take responsibility for what provinces could not deal with.
Dr Bouwer said that in order to answer that he would need to summarise the situation. The Constitutional Court accepted the re-setting of the boundaries, but asked that the procedural defect (lack of consultation by KZN legislature) be rectified. This order of invalidity was given in August 2006, an effective six months after institutional changes were effected on 1 March. It would be difficult to reverse the processes. The Executive and government had already in the meantime also commenced a White Paper Process related to a review of provincial government, and a reversal would also impact on that. These were all issues to be considered when deciding the way forward.
Mr Tsenoli indicated that the doubts and questions again were indicative of lack of communication and people not having been given the correct facts. DPLG had seemingly not explained that it was trying to remedy an anomaly, and that strictly speaking this was not a cross border situation. He stressed that timely dissemination of information was vital and the targets of government must be made clear.
Discussion on Submission by Eastern Cape Provincial Legislature
No Members wished to comment
Discussion on Submission by Matatiele Maluti Mass Action Committee
Mr Doman also asked for clarity on the submissions process.
Ms Chohan clarified that the Justice Portfolio Committee had called for submissions. Depending on the nature and substance of those submissions, it might or might not decide to have oral engagement. The Committee would as a matter of course continue to receive and consider written submissions right up to voting stage.
Mr Doman noted that there was still confusion on the ground, and felt that the Department should give more information and have better interaction.
Mr Tsenoli noted that the submissions had been given to the Department. There was currently a parliamentary advertisement calling for submissions and there should not be an assumption that hearings would not be held.
Ms Chohan said there were two processes. The Constitution Thirteenth Amendment Bill was to be dealt with by the Justice Portfolio Committee, who had called for submissions on this Bill. The Provincial and Local Government Portfolio Committee had called for submissions on the CB Bill. Earlier, submissions were sent to the Department when it had published notice of the Constitution Thirteenth Amendment Bill in the Government Gazette requesting submissions, and these submissions had been passed on to Parliament. In this case, when considering the Constitution Thirteenth Amendment Bill, the Justice Committee would also look at submissions on the CB Bill, because of the close correlation between the two. The submissions described by Mr Labuschagne were a composite collection.
Mr Doman asked whether the Constitutional Court had affirmed that the citizens of Matatiele had a constitutional right to live in the province of their choice, or whether they must be consulted on their preferences.
Mr Labuschagne explained that the Constitutional Court, in its August judgment, had remarked that citizens had the fundamental right of citizenship to reside in the Republic. Citizens of South Africa had the right to live in the province of their choice.
Dr Bouwer added that the Court also said that the citizens must be engaged on this issue, and this meant engagement between provincial legislatures and residents. There were many forms of public engagement. At this kind of level he thought that the mere calling for written submissions would not be enough.
Mr Mshudulu said that it was of assistance when the Department put matters in context. How the people understood their realities was important, and he agreed that consultation must be strengthened. If there were geographic bottlenecks, then resources must be deployed to ensure that all organisations were invited to and were assisted in commenting.
Imam G Solomon (ANC) asked precisely what defects Parliament was required to remedy.
Dr Bouwer responded that there was only one defect. The KZN legislature had had no public engagement. The Court had not struck down the decisions of Parliament on the provincial boundaries. It had raised issues regarding the extent of public engagement. However, although it discussed engagement in broad terms, and gave some examples, it did not give any finite decisions as to what would be proper consultation. The Justice Portfolio Committee had also suggested that because there was an integrated process it would be wasteful to hold consultations at every level. Clearly there would need to be management of the process.
Discussion on submission of KZN Provincial Legislature
Ms Chohan thought that a strong message should be sent to KZN Legislature that they should abide fully by the judgment and the processes, given their intimate knowledge of the areas concerned.
Mr Tsenoli asked whether there was an official explanation by KZN why it had not held public consultations.
Mr Labuschagne noted that there would be public involvement once the Bill entered the NCOP process. Dr Bouwer and he had held meetings with both Eastern Cape and KZN Legislature Speakers, and had made suggestions as to what was expected of them in the public involvement process.
Ms Chohan noted that in all likelihood the two legislatures would embark on joint hearings, which would be significant for those submissions that suggested a need to engage one or other legislature.
Dr Bouwer said that there were no real reasons given in the judgment as to why KZN Legislature had not engaged with the public. He seemed to recall that that they felt that the people had been consulted because they were aware of the issues. He said that the purpose of DPLG’s meeting with the two legislatures was to convey their responsibilities. The demands of the Maluti Matatiele Mass Action Committee were put to both legislatures. They would have to decide, in terms of their own rules, how to deal with those demands, particularly the demand to address the legislature when the matter was debated, which was most unusual. There was a slight difference between the rules of the Eastern Cape and KZN legislatures. Both provinces had given a firm commitment to speak to each other, and to plan their engagements, mostly likely to be joint engagements. This would save costs and address the technical problem that certain areas now fell outside a province. Engagement would be preceded by proper education of the people to prepare for the engagement. Translation services would be available. The concerns raised were being addressed..
Mr Mshudulu asked if the legal team should not approach the Court to give terms of reference. He feared that one province might misinterpret what was required of it, and he was concerned to avoid a challenge on technicalities.
Dr Bouwer said that the terms of reference were already given in the Court judgment. Legislatures must themselves decide how to engage the public, and in hindsight a decision would be taken whether that engagement was reasonable in the circumstances of the particular case. If a matter was of utmost importance to residents of an area, he suggested that it might be important to arrange to bus them to a public hearing. The difficulty in this case was not the quality of the engagement, but the fact that there had been none at all by KZN.
Mr Doman was satisfied with the inputs of the two legislatures. As far as the Committee was concerned, it was starting with a new piece of legislation and must go through all the processes.
Mr Mshudulu appealed that the Committee should try also to involve other Members of Parliament, especially those from the affected areas. There was a problem of misinterpretation and Members had a responsibility to assist.
Ms Chohan said that she had already been approached by some Members, and nothing would prevent any Member from participating in any Committee. She agreed that it would be useful to send out a note to say that anyone interested would be free to attend the discussions.
Discussion on Submissions by R Longden Thurgood, M Horn and P Dewes
Ms Chohan noted that these were largely around public involvement and matters of principle. Members did not feel it necessary to discuss them at this stage.
Discussions on submissions given in response to CB Bill
Mr Labuschagne noted that Mr Gcabo’s submission repeated what he had said in relation to the Constitution Thirteenth Amendment Bill.
The remaining submissions were largely concerned with issues of service delivery and distance.
Ms Chohan noted that although the distances were mentioned, people had not actually indicated that there would be a real disadvantage. She wondered if particular services were only offered at Bisho that could not be obtained at other towns close by.
Mr Tsenoli noted that the service delivery committees should produce a comprehensive report. He would like to hear what issues were relevant there.
Dr Bouwer noted that the DPLG had already commented on this to Mr Tsenoli’s committee, the Portfolio Committee on Provincial and Local Government. It was difficult to get information on who moved where, and what services were presently offered. In some areas there was a fully decentralised “satellite office” movement. The issue of distance would be relevant only if there were exclusive provincial services that could only be offered at the capital, and that could not be done at decentralised points. In addition it was interesting that the Youth League and Youth Council had commented on a visible improvement in service delivery from the Eastern Cape.
Ms Chohan suggested that the Committee should be furnished with whatever information was received by the DPLG. There would be no point in going the route of change if service delivery had not improved. It would be important to consider the broad issues even if detailed information was not available.
Mr Tsenoli said that when the demarcation legislation was passed, there was a consequential need to align the municipal boundaries. He wondered if there were reports on progress of that implementation.
Mr Mshudulu asked if there was any distinction in the weight to be accorded to the submissions.
Ms Chohan replied that this was a broad issue. The Council effectively represented the people who elected it and perhaps thus had more representivity than individuals. However, this would turn on many factors. The SACC submission was attempting to give some pointers.
Mr Tsenoli noted that the question of representivity was important, but each of the substantive arguments must be considered as well.
Ms Chohan indicated that the Committee would now set up a date for further discussion, to go through the clauses of the Bill formally.
Criminal Law (Sentencing) Amendment Bill
Dr Lirette Louw, Legal Drafter: DOJ, distributed a new draft, dated 28 August, and took the Committee through the latest changes contained in this draft.
Clause 1: Amendment of Section 51(2)
Dr Louw indicated that the period named in relation to the lesser sentence that could be imposed if substantial and compelling circumstances could not be found, was named as “for a period not exceeding thirty years”.
Clause 1: Amendment of Section 51(3)(aA)
Dr Louw indicated that there were now three options contained in the draft. The first was the original draft, the second related to the suggestions raised by Dr Delport and the third to the other grounds, as amplified by the public submissions in relation to the relationships.
The Chairperson was still concerned about the difficulties with the wording around the lack or apparent lack of physical harm to the complainant. She said that rape was always forceful. Therefore the force must always give rise to physical harm. To suggest that the mere fact that injuries inflicted during the rape were superficial warranted a deviation from the minimum sentence, was problematic. Yet the cases decided did seem to place emphasis on lack of physical injury. Psychological harm was another matter. She said the Committee must be quite clear. She suggested that under the sub-clause (ii), the word “harm” should be changed to “injury”. She also thought that the word “apparent” should be included as every rape must involve an injury of some kind. The words “lack” and "or" must be removed. The subclause (ii) would then read: "An apparent lack of physical injury to the complainant".
Clause 1: New section 51(3)(b)
The Chairperson suggested that the wording needed to be simplified. If the substantial and compelling circumstances could not be found at the outset, thus leading to the judicial officer imposing the minimum sentence, that officer should not still have to note that there were no substantial and compelling circumstances. She noted that the word "must" had been questioned in some of the submissions, and noted that it was being used still in this draft. She suggested that this sub-clause should read: "must enter its reasons on the record of proceedings".
Dr Louw indicated that the drafters had tried to spell it out more fully to try to avoid the confusions that had arisen, highlighted in the Brandt judgment and in the submissions.
The Chairperson said she was aware of this, but still felt that there were some problems with the wording suggested. The Committee had to try to anticipate what the likely interpretations of this clause would be, and to word the section in the least ambiguous way, so that there could be no confusion about a double or triple test. There must be a finding whether the crime fell within Part 1, 2, 3 or 4. Then there must be a finding whether there were substantial and compelling circumstances justifying the imposition of a lesser sentence. If there were such circumstances, then the reasons must be given. She felt that the word “impose” should be used as it was more neutral.
Dr Louw agreed that she would redraft.
New Section 53A
Dr Louw indicated that there had been two options on the transitional provision. She noted that the heading would change. The option included had now been agreed to by the National Prosecuting Authority (NPA).
Amendment of Part IV of Schedule 2
Dr Louw noted that what was originally listed in a new Schedule 3 had now been moved directly to Part IV. The NPA had submitted that the term relating to assault should be re-worded and had suggested the words "an offence involving an assault, when a dangerous wound is inflicted with a firearm". This would also cover attempted murder, and would apparently address the difficulties in interpretation that had arisen in the past.
The Chairperson questioned the use of the words “dangerous wound”. Dr Louw said that this wording was taken from the Criminal Procedure Act. She agreed that it was poor language, but it was used consistently throughout that Act.
The Chairperson asked if there was any reason not to change it here.
Dr Louw noted that this could be problematic, because the indictment would be framed under the Criminal Procedure Act, and then there would be inconsistency when it came to sentencing under this Act. An accused could claim that he was charged with one offence but sentenced for another.
New Clause 4: Amendment of Section 309 of the Criminal Procedure Act
Dr Louw indicated that the words in sub-paragraph (ii) should read “imprisonment for life” instead of “life imprisonment” to be consistent.
Adv Joubert (DA) noted that in fact there was not such a thing as imprisonment for life, as it was common knowledge that even this sentence would not run throughout the whole life of the person convicted.
Mr de Lange noted that "imprisonment for life" was used in the Justice acts. Those administered by Correctional Services used terms such as "life sentences". This was a matter of semantics, but a more consistent approach would be to use “imprisonment for life".
New Clause 8: Amendment of Section 21 of the National Prosecuting Authority Act
Dr Louw indicated that the NPA had commented on the option still remaining in respect to the policy and directives. She tabled their comment.
The Chairperson said that she had some difficulty in understanding the rationale. The comment suggested that the NPA was opposed to the Bill making reference to “policy” as any policy was rather formulated as a broad guideline rather than specifics. However, this was contradictory. If the jurisdiction of the Regional Court was not extended, then all matters would have to be prosecuted at the High Court, and this had not been done properly in the past. She was not persuaded by this submission, and asked that the drafters convey to the NPA that they needed to explain specifically why there should not be a policy, particularly in relation to the court where an accused was to be prosecuted. The Committee was not attempting to legislate a policy. The NPA suggestion, if carried through, would mean that no directives could be issued and backed up by a policy.
She added that the reason the jurisdiction of regional courts was being extended for these offences was to try to do away with the system of referral for sentencing. Ultimately the NPA should prosecute all cases where it appeared that a life sentence should be imposed at the High Court. If this principle was properly applied, then only very few cases being prosecuted at Regional Court would carry the imposition of a life sentence. These would be those where later developments revealed that a life sentence would be appropriate, or those prosecuted in the special Sexual Offences courts. The NPA did not disagree with the principle. She could not understand their objection to put that into policy.
Compelled rape: Schedules
Dr Louw said there were no further changes to the Bill, but there still remained the issue of reference to compelled rape, which would be dealt with in the Schedule.
The Chairperson said that she and Dr Louw would sit down and prepare a draft schedule, which would be considered the following day.
The meeting was adjourned.
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