Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill: deliberations
02 March 2021
The Committee dealt with Working Document 3 of the Bill containing proposed amendments based on public comments as well as Committee concerns from its previous meeting. The amendments focussed on in Part 1 of the Document were on the definitions of incest, sexual intimidation, employer, person who is vulnerable and sexual offence. The clauses deliberated on included those within the ambit of the application of Chapter 6 of the Act such as sections 41, 42, 44B, 44C and 51. Members expressed their preferences on a number of clause options and were concerned about avoiding unintended consequences in their efforts to protect young women under the age of 25. Public concerns about the removal of names from the register was raised and the drafting of regulations on this should include approval by Parliament.
In Part 2 of the Working Document, the Committee considered if the National Register for Sex Offenders (NRSO) should be transferred to the South African Police Service (SAPS) Criminal Records Centre using the existing police clearance system. This was a policy decision.
Criminal Law (Sexual Offences and Related Matters) Amendment Bill
Mr Henk Du Preez and Ms Ina Botha, State Legal Advisers: Department of Justice and Constitutional Development, took the Committee through Working Document 3 of the Bill containing the proposed amendments.
Chapter 2 Sexual Offences
Mr Du Preez said at the Friday 26 February meeting, the Committee was to choose one of the three options under the incest provision and choose one of the two options for the sexual intimidation provision.
Clause 3 Incest – amending section 12
Mr Du Preez said from the discussions held on Friday, it appeared that Option 3 was preferred. He asked if Options 1 and 2 can be removed so that only Option 3 is reflected. He wanted to do this as soon as possible to clean up the document in preparing the final proposed amendments.
Clause 4 Sexual Intimidation – inserting section 14A
The same applies to this clause where the indication was that the Committee preferred Option 2. He would like to clear up the document, getting rid of the strike-through, so there is a clearer indication of the provision can be given.
The Chairperson asked if Members had anything to add.
Ms J Mofokeng (ANC) said that all was in order.
Mr S Swart (ACDP) agreed.
The Chairperson confirmed the Committee was in agreement.
Chapter 6 National Register For Sex Offenders
Clause 5 Definitions – amending section 40
The definitions in section 40 are very important for the interpretation of Chapter 6 and the definition of the employment relationship between an employer and an employee. Currently, an employee or potential employee will be prohibited from working in an environment where there are children or persons who are mentally disabled. This is the restricted ambit of the prohibition in the chapter.
If the definition of vulnerable person is used, the ambit will be extended to include those individuals referred to in the definition of vulnerable person. This has a certain impact on the ambit of Chapter 6. However, starting at the beginning there are proposed amendments to 'employer' under clause 5. Here, the reference to a child or person who is mentally disabled, will be replaced with a person who is vulnerable.
Definition of 'employer'
Mr Du Preez recalled that the Committee received comment that where such people congregate, this might become onerous and throw the net too wide. The Department indicated to the Committee that there were two options:
Either, 'access to' or the term 'congregate' could be restricted to children and certain persons with disabilities. Alternatively, access to' or the term 'congregate' could be removed. The Department felt removing it might be the better approach at this stage.
The Option 2 is what the definition will look like once those changes are omitted.
The Chairperson asked if there were any questions but there were none.
Definition of 'person who is vulnerable'
This option presented on page 10 was presented in the introduced version of the Bill which was to effect a technical correction to the definition.
The Committee then requested two additional options.
This is the wide option. It includes many different categories of a 'person who is vulnerable' in (a) to (g) on page 10.
Under (f), the Committee requested that the LGBTIQ+ community be included and to research the appropriate wording. The proposal considered on Friday by the Committee is a person who is lesbian, gay, bi-sexual, transgender, intersexed, asexual or queer. The department proposed alternatives:
Option 1: person with a characteristic that identifies that person as a member of a group that recognises itself as transgender, intersexed or according to its sexual orientation
Option 2: person who is transgender, intersexed or a person who as a result of his or her sexual orientation could be identified as a member of a group that is generally recognised as such
Option 3: after consultation the following is recommended: person who is lesbian, gay, bisexual, transgender, intersex or queer
Option 4: person who is a member of a social group consisting of individuals who are transgender, intersex, or whose sexual orientation is gay, lesbian, bisexual or who falls under any other category that deems them a gender or sexual orientation minority.
Mr Du Preez said option 4 is a very good option. This proposal was received late yesterday afternoon and although the drafters would like to have a further look at it, it appeared to be a solid proposal.
The Chairperson asked for comment from Members.
Ms Mofokeng supported option 4, as she felt that it did not discriminate against anyone.
Ms W Newhoudt-Druchen (ANC) said that she supported whichever option was widest.
Ms N Maseko-Jele (ANC) asked what would happen if another organisation comes forward offering different recommendations. She was not sure what the process was in gaining assistance on the wording. She asked if additions would be allowed or if the Committee will say it is happy with what it has.
The Chairperson said before Mr Du Preez responds, he wanted to explain that this was not the stage for public comment. The Committee is at the stage of clause-by-clause review. The Bill was open to members of the public and that stage has now passed. This was a specific instruction to Mr Du Preez from the Committee to find a better way to phrase the clause from people who are in that space. The process is now, however, entirely in the hands of the Committee. Before it adopts the Bill, there would then be nothing stopping the Committee from accepting a further change. This stage should not, however, be construed as a stage for public comment. He asked if he had answered her question.
Ms Maseko-Jele thanked him and said it did as she wanted clarity that everyone was on the same page
The Chairperson said that it was an important question as it should continually keep members of the public and stakeholders present in the meeting clear about the process.
Mr Du Preez asked if he could clean up this portion of the definition of a vulnerable person. This portion of the definition would have the interesting consequence that employers and potential employers would have to ask persons who apply for employment, what their sexual or gender orientation is; precisely because they would need to determine if the person they are going to appoint is a vulnerable person. He mentioned this as this might be an expectation in the future.
The Chairperson asked if it would be mandatory for a person to respond.
Mr Du Preez said he doubted it, however, one might then ask the question if one is watering down the prohibition of persons who have been convicted of sexual offences from being allowed to work with vulnerable persons. However, he heard the question.
Under (g), persons who are cared for or sheltered at designated centres or places for the temporary reception and accommodation of asylum seekers and refugees as contemplated in section 35(2) of the Refugees Act 130 of 1998.
This option is also a wide option. A comment received during the public hearings that such a person should also be included in the wide definition.
Under (h), the Committee discussed this at length on Friday and it was requested by a Member to see if it would be possible for Parliament to provide the Minister with the power to extend the definition. If he remembered correctly, the conclusion of the discussion was that (h) should rather be removed.
Mr Du Preez presented this option of the definition of ‘person who is vulnerable’:
a) child or person who is mentally disabled
b) female under the age of 25 who—
i) receives tuition at a higher education college higher education institution or university college as defined in section 1 of the Higher Education Act, 1997 (Act No. 101 of 1997)
ii) receives vocational training institute, other than the institutions referred to in subparagraph (i), or as part of their employment; or
(iii) lives in a building, structure or facility used primarily as a resident for any of the persons referred to in subparagraphs (i) and (ii).
He recalled that there was a request to include unemployed females under b) but a number of questions came up about it and the Department thought that the Committee may want to debate it further. Looking at the purpose of the definition, it is important to recall that that this is within the employment situation, where employers and employees are involved. It is then difficult to imagine a situation where an unemployed person could be regarded within the employment sphere as a person who is vulnerable. The question was raised if it would be feasible or serve any useful purpose to include unemployed persons.
Mr Swart said he appreciated the explanation and is in agreement as he had a better understanding. Not wanting to take the Committee back, he asked the rationale for the insertion of (i) (ii) and (iii) as opposed to the Bill as introduced which covered all females under the age of 25. His reading of the Bill was that adding the three numerals slightly limits protection. He asked for a brief explanation why the decision was made to change it to this when the Bill as proposed covered all females under the age of 25.
Mr Du Preez said it was highlighted at some stage that if all females are included, this would include the whole labour force of South Africa.
Using the example of the parliamentary precinct itself, where there are females under the age of 25; this would mean that everyone on the parliamentary precinct will have to be vetted. This was only the national legislature and there were still provincial legislatures and municipal councils as well. This was just to give an idea as to the scope of leaving it at all females under age 25. This would have a ripple effect on the ability of whoever must eventually issue certificates. One can imagine, how many applications for certificates will be submitted within a very short space of time. As previously explained, paragraph b) does have a drafting history. It had originally looked at restricting the 25 years category to those who are most vulnerable and where one knows that instances of sexual offences do occur. That is why the emphasis is on persons who study or receive training. Strictly speaking, then, it refers to students; both where they study and live.
Mr Swart said he did not understand as vulnerable people are not being vetted but rather you are vetting people who are dealing with people who are vulnerable. He asked if his understanding was correct.
Mr Du Preez replied this was entirely correct. He gave the example of an employer who works with children and employs 150 persons. Under the current system, employer would have to vet them because they work with children. Strictly speaking, when a person under 25 years applies for a job, the possibility is strong that he would have to vet all the employees again. This, however, was just a concern that one has in extending the definition of vulnerable persons as it extends the number of employers that must vet their employees when someone under paragraph b) applies for a job. This will result in an increase in the number of applications for certificates.
Ms Mofokeng said she agreed with Mr Swart that further discussion was needed. The reason she thought so was that she did not understand why the vetting would be a problem where someone is working and for the government. This spoke to the fourth industrial revolution (4IR). She stated last week that the Committee should never hide behind what will happen about overload. Rather, the Committee and department should be concerned with how systems can be improved to get things going. This issue needed to be looked at very seriously, because women generally, no matter their age and if they are at home, or at work, they are vulnerable at all times. This point was still a thorn in her flesh and may need to be re-looked at seriously with people giving input and advice. She agreed with Mr Swart's concern.
Ms Maseko- Jele agreed with her colleagues and this took the Committee back to the question on the reasoning for why 25 and not 35 years was chosen. Although the Members could not return to the issue, she thought the reasoning for the age chosen was for same – there would be a lot of work if more years were included. She agreed on the need for more clarity on this point.
Ms Newhoudt-Druchen said she was thinking of the example of the Post Office. The people that they serve are students, who perhaps are younger than 25; she asked how this will affect such a situation. It is the public who are under the age of 25 who need protection and she asked how this could be done.
The Chairperson noted that in higher education institutions there will be students who are over 25 pursuing post graduate degrees and asked how this discrimination would be justified
Mr Du Preez replied to the example of the Post Office. As the requirement stands at the moment, if Members recall the recommendation made earlier in the meeting that 'access to' or 'congregate' should be removed from the definition because it throws the net extremely wide. The Post Office example would then entail that each and every employee who works directly with the public should be vetted. The question is raised if this serves any useful purpose. If, for example, in 85% of cases, there will only be once-off interaction with an individual who falls under the definition of paragraph b). If one calculates the number of employees working country-wide for the Post Office and the time and money spent, does this really serve a useful purpose.
Ms Ina Botha, Principal State Law Advisor, replied about the option referring to higher education and the implications of including females under the age of 25. The position as of today is that a principal cannot employ a teacher to work with children or mentally disabled persons if that individual has a sexual offence against their name. Normally people in higher education institutions are not children or mentally disabled people. This makes it a new category. She invited Members to consider the consequences. This will mean that all the lecturers that lecture people under 25 cannot be employed by the university if their name is on the sexual offences register. This needs to be noted for its impact on higher education and the TVET colleges as well. The question is then what will happen to all the lecturers who are already employed without this extra requirement of vetting. If one reads the Act correctly, it would mean that that these person would need to be discharged immediately. In the past, she has tried to explain why the females under the age of 25 requirement will be able to be justified based on the statistics she referred to the Committee. The second question is what the implications are of doing so. Whether or not Members agreed with her, it was worth Members considering it.
Mr Swart said the point is well-made by Ms Botha that the Committee needs to be careful of unintended consequences whilst at the same time protect vulnerable females. He understood that if it was simply left at females under the age of 25, there could be unintended consequences. For example, where a 25-year-old and a 26-year-old are both applying for a position; the latter would likely get the position as the employer will not want to have to re-vet all the people that would work with that female. There could be the consequence of unintentionally discriminating against people under 25 who try to get jobs. When it comes to education institutions, the point is well-made, that lecturers and a person working in hostels; sports and cultural instructors and any other job at a university, would now have to be vetted as a consequence of protecting vulnerable females. He agreed with the limitation of (i) (ii) and (iii). These are complex issues in b).
The Chairperson asked if he was tentatively covered by b).
Mr Swart replied that he was; however, the Committee needed to bear in mind the unintended consequences if they just left it at females under the age of 25 when it comes to accessing employment. The point was also made about the LGBTIQ+ grouping and the possible unintended consequence. The Committee needs to be very careful that they do not then have an employer that has a prospect to employ, and may avoid employing a person who is vulnerable because of the additional cost of having to re-vet everyone. This is something to be borne in mind as they deliberate.
Mr X Nqola (ANC) said that the concerns about certain requirements for a female under 25 years pertains only to Option 3. He thought it was a matter of the Committee choosing which was the better expression of how they want to protect these vulnerable groups. It should rather opt for a kind of wedding as the only difference between options 1 to 3 are the additional subcategories. He thought that 'female under 25 years of age' needed to be included, and then a way found to insert those stduying or training are protected; whereas in the other option, almost all females receive protection. This was his view.
The Chairperson said the Committee’s challenge is protection for females below the age of 25 insofar as job prospects are concerned and the unintended consequences. There is a need to find a balance and this is what is causing the Committee to stress. Mr Nqola's point had been heard.
Prof C Msimang (IFP) said that he was also uneasy about the age of 25. In German law, a person becomes an adult at 25. In our law, a person becomes an adult at 21. He felt that it made more sense for the age to be 21.
The Chairperson asked if he would like the limitation of (i) (ii) and (iii).
Prof Msimang said that he thought 21 was easier to justify and without (i) (ii) and (iii).
The Chairperson asked the Department to respond.
Mr Du Preez said that under the Children’s Act, a child is only a child under the age of 18 years. Generally speaking, when you are 18, you finalise grade 12. When you study further, you study for between 4 to 7 years. This is how they determined the age of 25. To take it back to a general requirement of a person who is under the age of 21, without restricting it, one would be faced with very similar unintended consequences as many young people between the ages of 18 and 21 do not go to university or study further, but enter the job market immediately. The Department recommended keeping the age at 25.
Mr Du Preez mentioned another factor that the Committee should consider when discussing unintended consequences. He had noted that if the LGBTIQ+ community was included, then potential employers would have to start asking personal questions. The Chairperson had asked if there would be negative consequences if someone refused to answer. Possible unintended consequences is that the employer, even if you are the best candidate for the job, might opt not to appoint you as the risk of being convicted of an offence rests largely on the employer.
Ms Newhoudt-Druchen said that the discussion here is about vulnerability and not if the person is an adult or not as it had already been agreed that all women are vulnerable regardless of age. She would be very concerned if the age was dropped to 18 or even 21.
The Chairperson asked if she supported the definition with or without the limitation of (i) (ii) and (iii).
Ms Newhoudt-Druchen said that she was still considering the unintended consequences raised by the Department. She was concerned about unintended consequences where women do not get jobs because of these clauses.
Mr Swart asked that the definition of employer be looked at. He asked if it would be possible to limit the scope to avoid unintended consequences. He supported what other Members said about keeping the age at 25 but wondered if there was any scope there to try and limit unintended consequences. It was currently quite broadly stated. It is a complex issue, which the Committee might have to come back to deliberate on.
The Chairperson agreed and said it might have to do this, especially on unintended consequences, bearing in mind that this age group is where the level of unemployment is very high and opportunities are very limited. A balancing act needs to be conducted very carefully. He was looking at the definition of employer and asked if the Act spoke to public sector employers only.
Mr Du Preez apologised for not highlighting this in the definition of "employer". Paragraph (a) is more the public sector and paragraph (b) is more the private sector. What is being discussed then is the employment sector as a whole.
He added that it will be extremely difficult to restrict the definition of "employer" as one wants all employers to be covered. As discussed earlier in Option 2, one could possibly bring in a restriction where the definition refers to 'access to' or where 'such persons congregate.' In view of the extension of the definition of vulnerable person, the direct recommendation made to the Committee during the public hearings was to consider restricting that. The question of whether that requirement serves any useful purpose becomes very relevant and possibly not defendable.
The Chairperson said that for now, the Committee will still be considering the definition of a 'person who is vulnerable'. It will give itself time to think deeply about it given all the information that has been advanced in trying to balance the protection of vulnerable groups with the possible unintended consequence. The Committee would need to return to this later on. The Committee is working on Option 3 and considering the unintended consequences within it. Without excluding other options, it felt that Option 3 does to a certain extent try to limit the damage of unintended consequences, however, it is still applying its mind to the implications of the option.
The Committee agreed.
Definition of ‘sexual offence’
Mr Du Preez said this needed to be defined under Chapter 6 to clarify which sexual offences there are. As the chapter stands at the moment, the chapter applies retrospectively to offences that were committed for a relatively short period before the implementation of the chapter. Once again in the public comments, the concern was expressed that sexual offences against children and persons who are mentally disabled will now be extended to include all sexual offences. On Friday the drafters indicated to the Committee that they would like the Committee to consider this option, where it aimed to draw a distinction between what is currently the law relating to children, and also to consider that there was only one option on the definition of 'sexual offence.'
Mr Swart congratulated the Department for including all the concerns raised about the retrospective application of the Bill.
Mr Nqola agreed that it had been done in a proper way that befits the national legislature.
Mr Du Preez said this brought them to the end of the definition section. The remaining amendments are strictly speaking consequential amendments as a result of the definitions included in section 40 and the expansion of the ambit of Chapter 6.
Mr Du Preez said if he is permitted to contribute to the discussion still to be had by the Committee on Option 3 of the definition of a 'person who is vulnerable', that although at present the Committee prefers Option 3, it should be mindful of the fact that Option 2 under the definition of 'employer' could also positively impact in avoiding extreme unintended consequences. He simply wanted to add that Option 3 could be read with Option 2.
Clause 6 amending Section 41
Mr Du Preez noted that one comes across the phrase of having 'access to' certain persons or where certain persons were present or 'congregate'. The drafters therefore prepared two options for the Committee to consider about restricting the ambit of Chapter 6.
The principle was actually the same in section 41 as in the definition of "employer".
Option 1: as in the definition of "employer", this option will need to restrict the requirement of 'access' and 'congregate' to children and persons with disabilities.
The Department would prefer to recommend Option 2. It has accordingly prepared Option 2 so that the Committee can look what the amendment would look like.
Mr Swart said that it was important to note that by removing the definition of child and inserting 'a person who is vulnerable,' the ambit of the section is broadened. The idea is then to narrow it again under 'access' and 'congregate'. This made sense to him, however, he felt it was complex to follow and he was sure that other Members were struggling as well. However, he saw that the initial idea was broadening to cover all people who are vulnerable; considering the discussions on this, but then also try and narrow it by looking at access and congregation.
The Chairperson asked if there were other views, to which there were none.
Mr Swart asked if the Committee should indicate that Option 2 would be its preference.
The Chairperson agreed it would be taken as the Committee's preference for now, unless there were objections. As this was a working document, the Committee would return to it; but this would be the case for now.
Mr Du Preez wanted to explain the impact of section 41 by way of an example on 'access to'. If he was a member of a cricket club, where he played cricket; he would have access to children if there is a children's team. This means that strictly speaking, per the definition, he will have to be vetted before he can become a member or even an employee of that sport club. When the comments were made to the Committee, the commentator said that this wide requirement was understandable when it comes to children and persons who are mentally disabled; however, as soon as this is extended through the definition of a person who is vulnerable, then once again, the question of the useful purpose arises.
The Chairperson asked what would be involved in the vetting process, so that a potential employer must know to organise their resources as such. He knew it might be a little bit early, as this might be something included in the regulations, but he asked what this would involve.
Mr Du Preez said that the regulations provide for applications to the National Register for Sex Offenders (NRSO) to be issued with a certificate stating if the particulars of an individual have been included in the Register or not. What would be required is that someone who wants to apply for a job would be required to submit a certificate to prove that he or she has not committed a sexual offence against a person or child. The efficacy would depend on how quickly the turnaround time is in the granting of the certificates. This could impact the granting of jobs and may limit access to opportunities to some extent. This was the extent of the regulations currently. There are also prescribed forms to fill in and certain information to be provided either by the potential employee or the employer with regard to an existing employee.
Ms Maseko-Jele said she heard Mr Du Preez say that the applicants are the ones who bring the certificates. She was concerned that the persons being vetted are the ones bringing the certificates and asked how secure this was in the time of corruption we are currently living through. She asked how employers would ensure that the certificate is legitimate.
Mr Du Preez replied he would answer indirectly as he was honestly not sure what the physical certificate the Registrar issued look like. However, the police clearance certificates are authentic certificates as they go to certain lengths so it would be very hard to falsify that certificate.
Section 42: Establishment of National Register for Sex Offenders and designation of Registrar
The Department had already indicated the proposed amendments. Under 42(4), there are a number of options about making information publicly available. The options attempt to protect the identity of persons who were children at the time of the commission of the offence; additionally, to protect the identities of children who were victims of perpetrators. The inevitable conclusion is that you are actually restricting or diluting the information contained in the register; therefore, less information would be made available on perpetrators who are on the register.
Option 1: the attempt was to state that certain details must be made publicly available whilst also attempting to restrict for the purpose of protecting the identity of children.
Option 2: a slightly different approach is taken here, where any person may be allowed to apply in order to determine if a particular person's particulars have been included in the register
Mr Du Preez said that Members would recall that at the meeting on Friday, the Committee requested that additional options be given as Dr Loots referred to the system in Kenya. Research had been done, however for the purpose of preparing options, it became evident very early on that the Kenyan, Nigerian and Canadian systems differ in one important aspect from the current South African NRSO. These registers differ in usage as they are used primarily as tools for the police to monitor and investigate. In Kenya, if you are convicted of a sexual offence against a child, a person who is mentally disabled, or an old person; then the court must declare you a dangerous sexual offender. This has certain consequences; among others, that their Department of Correctional Services must monitor the individual after release from prison. It also enables the police to conduct investigations accordingly.
At this stage, the Department was not really able to learn much from these systems to come up with an alternative proposal here. He did not know if the Committee wanted to give the drafters more guidance, as the South African system works differently to the other systems.
The Chairperson asked if the options before them now had dealt with constitutionality.
Mr Du Preez said that in Option 1, the Committee expressed a concern about possible identity theft. This is why the option is restricted to the first eight digits of the identity number. There are indeed risks involved in making the information publicly available. There might be a strong possibility that there is a person with exactly the same first names and surnames on the register. For example, if you take full names and surname, for names that occur frequently in the country. If this information is made available; there is the concern an individual might be confused with someone else and might even suffer damage as a result. There are, therefore, inevitable risks in making the information publicly available.
Another question is if there should be a purpose statement for making the information available or if anyone would be able to go to the Registrar and find out if an individual’s particulars appear on the register. At a previous meeting Dr Loots took time to highlight the risks in her written submission to the Committee on public availability of the information. In the countries, the drafters looked at, their registers were not publicly available but are used strictly speaking for investigative purposes by their police force.
The Chairperson said the big question is if the information should be made publicly available online, or if it should be limited to the police. This is bearing in mind the possible dangers raised by Dr Loots about possible vigilantism and attacks to the next of kin of offenders. He asked Members to comment.
Ms Maseko-Jele asked what the implications were constitutionally if the Committee agreed to publicise the register. This is a difficult issue as many people will be affected by this. If she was someone who was abused, she thought she would want the name to be published so that the person would not do it again.
The Chairperson asked if it would be correct for legislators to legislate purely based on anger, or if it is the legislature's duty to ensure that everyone’s rights are balanced to ensure a workable system. This was a very sensitive situation where sometimes even victims out of bitterness can sometimes become perpetrators. Should the legislators take everybody's interests into consideration and have legislation that ensures that everyone's rights are protected?
Mr Du Preez said that these questions summarised the concern. They spoke for themselves in asking if it was proper for legislators to legislate out of anger. The SA Law Reform Commission reported at the public hearings against making information publicly available. One of the questions SALRC raised was what purpose would be served by doing so. There is no conclusive evidence that making a person’s particulars available on a register will bring about a reduction in persons committing offences again. There is even anecdotal information that there might even be an increase in repeat offending. He asked if Dr Loots wanted to contribute.
Dr Barbara Loots, Parliamentary Legal Advisor, said that the point raised by the Chairperson about legislating in anger is a very good point to start. When one limits a right; and there are quite a few implicated rights as previously discussed that can be affected by publication of the information on a website, you require a legitimate government purpose. This means there needs to be something that can justify negative impact. She could not see an instance where a court would say that the general anger of a nation is enough to take away or not balance rights properly. Her understanding of what the provision is trying to balance is the need for the community and people to know that there is a way for them to feel protected and be protected.
She referred Option 2 on page 17, which says that 'any person may apply, in a prescribed form.' If it chooses an option like this, there is still a way for the public to get the information if it is justified in the circumstances as leading to the protection of some, whilst respecting the rights of others. The Option 2 approach was less restrictive and steered away from unconstitutionality.
She had a very real concern, even with Option 1 in restricting the ID digits. As the Chairperson said, when people act in anger, they say and publish things and although it can be retracted, the damage done is irreversible to somebody if that person is not the sexual offender. The damage done to their reputation, their job prospects and their family and kids is not something you can actually give back to someone. You can give them monetary damages but you cannot give back what was lost. Option 2 is the most balanced and walks the middle ground between the public interest of protecting the public as well as respecting the rights of all persons. She acknowledged that with this option, a need has to be expressed – which could perhaps be done in the regulations as one needs to distinguish between an employer asking the Register for information and when a person with an interest asks. It needs to ensure that employers do not side-step that process by merely putting in an application for somebody who has an interest. Perhaps through regulations, this can be distinguished. The UK, Kenya, and the other countries mentioned all have closed registers, however, there are still ways of protecting the public through such a request or application process. Option 2 was the safest option and she did not think that Option 1 would pass constitutional scrutiny.
The Chairperson thanked her and asked Members for comment.
Ms Mofokeng said Dr Loots mentioned the need for regulations. However, in the past there had been reference to need for regulations where this did not happen. She did not disagree with Dr Loots, however, she felt that the implementation of regulations needed to be ensured as many times they were not even drafted.
The Chairperson said this can either be included in the legislation or as part of the Committee's oversight where the Department is given six months or a year to develop the regulations. The legislation can also include that the regulations are agreed to by Parliament. It would be important that Ms Mofokeng's point is dealt with and it does not give power to the Executive to develop regulations without giving it a timeframe. He asked if he had covered Ms Mofokeng.
Ms Mofokeng said it did cover her as it was also clear that for those people who would want the register to be public, in terms of the Constitution, it cannot happen. She confirmed that she did not have a problem with Option 2, which is why she added the concern about regulations.
Mr Swart said that he agreed Option 2 was the preferred option. The publication of names could lead to vigilantism.
Ms Newhoudt-Druchen noted Option 2 refers to a child or mentally disabled person as complainant. Some complainants cannot express themselves vocally – not only due to deafness, but to other disabilities like cerebral palsy. She asked that this be looked at more carefully.
Mr Du Preez replied that this question had been raised previously. He explained that the use of the term 'child' is an all-inclusive definition, irrespective of the mental health, intellectual ability or physical ability of the child.
Dr Loots agreed with the argument that Mr Du Preez was making.
Mr Du Preez said although Option 2 is now the preferred option, the proposal in 42(5) must be noted. It states that if you have access to information that the register provided to you, there is a confidentiality obligation resting on you and if you transgress that, you will be guilty of an offence. What he had heard from the discussion now made him wonder if 42(4) and (5) will be sufficient. They might need to take it a bit further.
The Chairperson asked what he meant by 'take it a bit further.' What would he want to insert?
Mr Du Preez replied that it depends on what the Committee would want. It was difficult to explain and he would need to check if 42(4) and (5) of Option 2 would slot in to the rest of the existing requirements contained in Chapter 6 sufficiently. This is particularly because it is creating two separate procedures. The one is for an individual, which is fairly easy to comply with and one for employers, which is arguably, a bit more onerous. The question arises why an employer should go through the application process to apply to the Registrar, when an employer can also as a member of the public, use 42(4) to determine if a proposed employee has been convicted of sexual offences. This might be a technical question; however, it raises the question if 42(4) and (5) slot in with the other requirements of Chapter 6.
The Chairperson said the Committee would flag this clause and come back to it.
Clause 9A inserting sections 44B and 44C
Mr Du Preez said that the Committee agreed to these sections as proposed on Friday and that it did not solicit any discussion.
The Committee agreed.
Clauses 10 to 15
Mr Du Preez said that these provisions spoke for themselves. The drafters had previously presented them without soliciting comments or questions.
Clause 16 Removal of particulars from Register – substituting section 51
Mr Du Preez said that there was a transitional provision which provides that persons who have qualified for the removal of their name before the implementation of the Act, this should be done before it is implemented. However, public comments indicated that this would not be a fair process and that it would be more appropriate to state that a person who has qualified for removal before the operation of the Act, should be able to do so if they had not applied for it beforehand. In other words, they would still be allowed to apply for it after the implementation of the Act. The Department supports this proposal. He asked if the Committee supports this option as the Department strongly recommended it.
Mr Swart said he was satisfied with the option.
Ms Mofokeng agreed but she wanted to note that there were those who made submissions wanting the names to be on the register for life. However, this is unconstitutional.
The Chairperson thanked her and said that lifetime would be unconstitutional and asked what the maximum term would be.
Mr Du Preez replied that currently; if a person has been convicted of two or more sexual offences against children or persons with disabilities, their particulars cannot be removed from the register. However, section 51(1)(a)(i), (ii) and (iii) provide an indication as to the length that a person’s details should be on the Register. The request was made for the existing periods to be made longer as they were said not to be long enough. Strictly speaking, they were doubled; however, they are graded according to the offence committed and the sentence imposed.
Ms Mofokeng said she was happy with this. She asked if families and affected persons will be contacted when people apply for the removal of names as is done with parole. She asked to be advised on what the process will be. If there will be regulations, they should not just say that people will apply because the next moment people are complaining that someone is out. People sometimes forget that 14 or 20 years have passed when they complain. The regulations should be mindful of the way that ordinary people view things.
Mr Du Preez said that it was an extremely difficult question to answer. One must be reminded about the purpose of Chapter 6. which is about the employment relationship. It is not, strictly speaking about the victim; but rather the potential victim. It is a safety mechanism that the legislature introduced to protect other persons. One of the very first questions that arises when one starts talking about a register for sex offenders is the question of punishment. For example, if his particulars are included in the register and he was sentenced to jail; when he comes out, the theory of punishment says that he has served his punishment and should not be punished anymore, but should be taken up into the community and rehabilitated.
This question is quite philosophical, but it begs the question if the legislation is not adding to the punishment of the person. When the victim is involved in making statements on the early release of a person, this is an existing system where that person is still serving their term. However, when it comes to the Register. The aim is different, which is to have the focus on potential victims. This is why the legislature introduced these protective measures. He did not remember when the provisions were drafted, if victim impact statements were discussed.
Ms Mofokeng said that the education of people would be important when dealing with this.
Mr Du Preez said the second part of the working document deals with the proposal that the South African Police Service (SAPS) Criminal Records Centre should take over the function of confirming if a person has been convicted of a sexual offence or not. Part 2 indicates the requirements that would be required to achieve that goal.
Option to use the South African Police Service Criminal Records Centre
Mr Du Preez said there was a slight misunderstanding on Friday when the Committee debated if the Criminal Records Centre certificate should be restricted to sexual offences, or if it should reflect all offences. What he neglected to indicate, which he apologised, is that a police clearance certificate shows all the offences one is convicted of. It is not necessary for the purposes of Part 2 to restrict a police clearance certificate to only sexual offences as it would cause a few problems for SAPS, who will have to change its systems. What the Department is trying to say, is that if an ordinary police clearance certificate is requested, it would include all offences one is convicted of and not only sexual offences.
If a person is prohibited from working with children because they have any other type of offence then the drafters are going beyond the ambit of the Act. The Department wants to propose that where there are prohibitions from working with children; this should still be restricted to persons who have been convicted of sexual offences. Although the police clearance certificate will indicate all the offences that you have been convicted of; the prohibition in section 41 will be restricted to sexual offences and this will place the amended provisions still within the ambit of the Act. This is one question which the Committee will have to answer.
The other question is if the SAPS Criminal Records Centre should take over the functions of the NRSO. If they issue certificates as they do now, listing all the offences, then there is little that needs to change, except that they may need additional personnel to address the increase in volume of requests for clearance certificates. They currently issue about 1 million certificates per year. The Criminal Records Centre's clearance certificate system is the only real positive identification that one has of an individual because they conduct a search of previous convictions based on biometrics; namely; fingerprints. This is the most effective system to record criminal records. He thought it spoke for itself, without trying to influence the Committee, as a clearance certificate could be issued reflecting all the convictions. This would amount to business as usual for the Centre, however in Chapter 6, the restriction to employ will still remain for sexual offences committed against vulnerable persons.
Ms Botha informed the Committee that after the last meeting, the Department approached Brigadier Van Rooyen who was present in the previous Committee meeting and asked if SAPS would be able to implement the shift of the register to SAPS Criminal Records Centre as well as if it had a budget for it. This was discussed with the Brigadier and she was not sure if SAPS was in the meeting as it might help the Committee. She wondered if SAPS cannot offer first-hand enlightenment to the Committee about what is required in this event. The Department wants to ensure that if the Committee feels that the Register should move to the police, it was important that SAPS give the Committee an idea of how it will affect them. She did not say this to dissuade the Committee from the option, but so that the Committee is fully aware of how SAPS will be affected.
The Chairperson asked if the Brigadier was a decision-maker at SAPS.
Ms Botha replied that the Brigadier would have to talk to the Records Centre and speak with the Minister as this proposal is a policy shift that was not included in the Bill as proposed by Cabinet. This morning she mentioned to the Committee Secretary that because of the concerns raised by the Committee, immediately after the Friday meeting, the drafters engaged with the police. She asked the Secretariat if it would be possible for an invitation to be sent to SAPS to listen in and hear where the Department is going with the Bill. She could not, however, see if SAPS was attending this virtual meeting or not.
The Chairperson said SAPS seemed not to be on the platform. He was concerned that the Department was talking to people who were not decision-makers.
Mr Swart said that he felt that the Chairperson’s concern was well-placed. This is not a new issue, as it has been discussed for some time. First, however, he thought there would be a need for political engagement, bearing in mind, however, that the Bill is now with Parliament. He was not sure how this affects the policy shift needed for the Bill passed by Cabinet. He thought this would need to be clarified, however given the urgency, if there were concerns, he wondered if it could not be dealt with at the level of the National Council of Provinces (NCOP) when the Bill reaches them. If the intention was to pass on the function of the existing register to SAPS, then the funding for the Register should possibly go to SAPS. The funding followed function, however from a policy perspective, he was not sure how it would work. This is a significant shift; however, it is not the first time that the legislature decides that Parliament needs to do something. It was always important that for any Bill passed, the Committee knows what the costing will be so that it avoids passing good legislation that is not implemented due to financial constraints. He thought the policy concerns were well-articulated as well as the urgent need to pass the legislation.
Mr Du Preez repeated the two important issues from page 33 to 35. Firstly, if the Criminal Records Office should be responsible for the issuance of certificates based on the register. He wanted to run through the transitional provision on page 45 of the document. He had expressed doubt about the usefulness of the provision on Friday. He then asked himself what exactly the provision was trying to achieve when he looked at it again. After having an opportunity to discuss it with SAPS, a provision like this would be important if the functions are transferred to the Criminal Records Centre. However, the provision also poses a solution to the question raised by one of the members as to if it would be possible to make provision for a future transfer. This is precisely because the provision determines that up to the stage where this Amendment Act is implemented, the obligation will remain on the Minister to transfer the database of the Registrar to the National Commissioner of SAPS, as well as the information that the Registrar receives during this period. The Committee had gone through the provisions on Friday and asked if there was anything else the Committee wanted him to address.
The Chairperson asked if the transfer provision referred to the Minister of Justice or of Police.
Mr Du Preez replied that it is the Minister of Justice and Constitutional Development because the term Minister is defined in section 1 of the Act. The reason why the Department proposes that it should be the Minister, rather than the Registrar, is because Chapter 6 places the obligation on the Minister to establish the register. It would then be technically more correct to place that obligation on the Minister.
The Chairperson asked if a Minister of another Department can transfer functions to an official that is not under their authority. He asked if it would make sense in governance for a Minister of one Department to transfer functions to an official in another Department.
Mr Du Preez replied that he had asked the same question to SAPS and asked for their advice. The response that he received is that SAPS did not foresee a problem with it as it was not a two-way interaction as it was merely the Minister referring a database to the National Commissioner. However, if the Committee was concerned about that, it could rephrase it as the Minister ‘must ensure’ that the transfer is effected, perhaps through the Director General of Justice to the National Commissioner.
The Chairperson asked what Members thought about this.
Ms Mofokeng said that that she felt it was in order.
Ms Botha said a question which is important to think of and not to give a reason for the Committee not to transfer the Register to SAPS. She referred to the section on removal of a name from the register. As it stands now, if someone is found guilty, his or her name is entered into the register. There is a provision which says if you behave nicely, then after a number of years, depending on the offence, your name will be removed from the Register. The way she sees this removal, it is an automatic one, without any decision-making. The consideration would be if the person was again found guilty, then that person's application for removal will be refused. In the normal sense of the word, however, there is a legitimate expectation that has been raised by the register and the fact that if you behave properly, your name will be removed. If one's name is removed, the consequence is that then you would be able to become a teacher, because that prohibition is then no longer applicable to you. If one then looks at giving the register to the police, the purpose is then so that the police access it during the transitional period. However, the provision on the removal of names from the register is one where the Committee will think about what process then needs to be followed on the removal of names from the register. It also needs to consider if the person should go through the pardon process to get their name cleared, which was a completely different process.
The Chairperson said this should be linked to the question of process asked by Ms Mofokeng about the legitimate expectations of whether the victims would be consulted when a person applies for the removal of their name from the register. He asked that Dr Loots respond, or that Members keep it in mind when thinking about how the process will be managed. He asked if it would be a purely administrative process, or if there would have to be a process that ensures that the victims are also consulted. He also asked what the unintended consequences of this would be. He asked Ms Mofokeng if he correctly captured her concerns properly.
Ms Mofokeng said that he did and if one thought about it, it goes even beyond that. There is the experience in departments where people pry on systems and remove criminals from the system. She recalled that there was a case where they checked the system only to find that someone was released and the criminal records were removed. In that case, the responsible party for the removal could not be traced. It goes further to say that systems should be able to talk and self-verify so that they know who dealt with the application before it is sent to the person who authorises it. There should be a way to see that the process has been followed and is recorded.
Dr Loots said that this was dangerous territory for her because it had the potential to influencing the functioning of two departments. The route which needs to be followed is very much a policy decision. After these policy decisions were made, she would then be able to interrogate the process. She could not comment on a decision that would clearly impact on the workings of two different departments and their powers, responsibility and administration as she did not think she had the mandate or the knowledge to comment on this. Once such a policy decision is made, she would gladly help the Department with checking any drafting.
The Chairperson said they should keep this in mind so when they return to this Bill on 5 March, these were areas that should deal with. He raised these issues so that as a Committee, it could sufficiently apply its mind to some of these problems. The Committee did not intend to ambush Dr Loots and understood what she said. It was, however, a task for all of them to think about this. He asked Members if this was alright.
Mr Du Preez said he did not have anything further to add. He presumed that the Committee would like a cleaned up document before 5 March and the team would do its utmost best to do so.
The Chairperson said that he understood that the Department drafting team and the parliamentary legal advisers were working under very difficult conditions. These are conditions not of anyone's choosing as the Committee has just found itself having to deal with a number of Bills at once. Due to the pandemic facing us that is domestic violence engulfing the country, the Committee needs to act as expeditiously as it can to ensure that the Bills are passed. It also wants to ensure that the Bills can withstand constitutional scrutiny and are implementable without collapsing the public service but which simultaneously do justice in fighting the scourge of domestic violence against women, children and vulnerable groups.
The next day it would start with the Domestic Violence Amendment Bill. It would be the first working document after the public hearings on it.
Mr Du Preez noted that Mr Sarel Robbertse and Ms Dellene Clark would be presenting it.
The Chairperson thanked Mr Du Preez, saying that the date by which the Committee wants to conclude the Bills is 21 March, which is why it is putting everybody under pressure. He thanked Members and adjourned the meeting.