Criminal Procedure Amendment Bill: DOJCD response to public submissions & adoption; GBV bills: NCOP amendments; with Deputy Minister
07 September 2021
Chairperson: Mr G Magwanishe (ANC)
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Tracking GBV bills
ATC210812: Report of the Select Committee on Security and Justice on the Domestic Violence Amendment Bill [B 20B – 2020] (National Assembly – sec 75), dated 11 August 2021.
ATC210816: Report of the Select Committee on Security and Justice on the Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill [B 16B 2020] (National Assembly – sec 75), dated 11 August 2021
In a virtual meeting attended by the Deputy Ministe of Justice and Constitutional Development, the Committee adopted the Criminal Procedure Amendment Bill, and finalised the content of the Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill and the Domestic Violence Amendment Bill.
The Committee had only received one submission, from the Centre for Child Law, on the Criminal Procedure Amendment Bill. The Department agreed with both amendments proposed by the Centre. As a result, clause 1 of the Bill had been amended such that section 154(3) of the Act would explicitly prohibit the publication of protected information on electronic and social media platforms; and section 154(3B) would no longer require all relevant persons to apply for a court order if they wished to publish or reveal their own identity.
The Committee adopted the Bill as amended by the Department, with the DA reserving its position. The Bill would be introduced in the House on Friday without a debate.
The Department also briefed the Committee on the amendments that the National Council of Provinces (NCOP) had made to the Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill and to the Domestic Violence Amendment Bill. Most of the amendments to both bills were consequential or technical.
In the Criminal Law Amendment Bill, the NCOP had somewhat reduced the scope of the prohibitions on certain types of employment by sexual offenders in section 41 of the Act.
In the Domestic Violence Amendment Bill, the NCOP had sought to make the language of the principal Act gender-neutral and therefore more inclusive. It had also broadened the definition of harassment to include stalking, and broadened the scope of the maintenance relevant to emergency monetary relief.
Two Members were concerned about the use of gender-neutral pronouns, which they thought was grammatically incorrect and could cause confusion. The Deputy Minister dispensed swiftly with their concerns by assuring them that “they” had a grammatically acceptable singular denotation and by reminding them that the Committee had already passed gender-neutral legislation in the past. The ACDP asked the Department to nonetheless consider whether gender-neutral language would cause interpretation problems going forward, given that most future legislation would probably be drafted in such terms.
The Committee agreed with the NCOP amendments to both bills. It planned to adopt its reports on the bills in its meeting the following day, so that the bills could be submitted to the House for final adoption. The Committee intended to submit the bills together under a single declaration and without a debate.
The Committee considered its programme for the rest of the week, given that the parliamentary term would be suspended after Friday to accommodate the local elections.
The Chairperson said that in the current meeting the Committee planned to finalise the Criminal Procedure Amendment Bill (CPAB), so that it could comply with the court deadline. It planned to adopt its report on the CPAB the next day.
The Committee would also continue processing two other gender-based violence (GBV) bills, the Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill (CLAB) and the Domestic Violence Amendment Bill (DVAB). The Committee was prioritising the GBV bills because Parliament was under a lot of pressure to process them – society expected that they should have been enacted “yesterday.” The National Council of Provinces (NCOP) had made some technical amendments to the bills, which the Committee had to consider.
In its meeting on Wednesday, the Committee would begin the process of filling the vacancies at the Information Regulator (IR) by agreeing on a timetable for interviews. The IR’s term ended on 1 November, so the National Assembly (NA) should ideally consider the vacancies during its first sitting of the next parliamentary term.
In its meeting on Thursday, after the plenary sitting, the Committee would receive a briefing from parliamentary legal services on the procedure to follow when dealing with the referral, relating to Judge President John Hlophe, from the Judicial Service Commission.
Finally, a meeting of the Subcommittee on Correctional Services had been scheduled for after the plenary sitting on Friday. The Department of Correctional Services had been scheduled to brief the Subcommittee on the state of education in correctional facilities. However, the Chairperson understood that there had been a request to postpone that meeting until the next term.
Adv S Swart (ACDP) conveyed his apologies in advance. That week’s parliamentary programme was busy and he had to attend plenaries, though he would attend the Committee meetings when possible.
When the Chairperson asked if anyone was opposed to the programme, Mr X Nqola (ANC) joked that he was opposed to anyone who was opposed.
The Committee adopted the programme.
The Chairperson suggested that, in the current meeting, the Committee should adjourn for a one-hour lunch break at 1 p.m.
Criminal Procedure Amendment Bill [B12-2021]: DOJCD responses to public submissions
Mr John Jeffery, Deputy Minister of Justice and Constitutional Development, thanked the Committee for accommodating the GBV bills in its programme. There had only been one public submission on the CPAB, from the Centre for Child Law (CCL), which had recommended two amendments. The Department agreed with the CCL’s recommendations, and it proposed two corresponding amendments to the Bill.
Mr Dingaan Mangena, State Law Adviser, Department of Justice and Constitutional Development (DOJCD), briefed the Committee.
Clause 1(a): The meaning of “publish” in section 154(3)
Mr Mangena said that the CCL’s first comment concerned clause 1(a) of the Bill, which amended section 154(3) of the Act. The CCL proposed clarifying that the legislation prohibited the publication of protected information on social media and electronic platforms, as well as by any other manner. The Department agreed (see document).
As suggested by the CCL, the Department proposed inserting the phrase “including on any social media or electronic platform” into the prohibition on publication in section 154(3)(a).
Clause 1(b): Extension of protection in section 154(3B)
Mr Mangena said that the CCL’s second comment concerned clause 1(b) of the Bill, which inserted subsection 154(3B) into the Act. The CCL proposed that relevant persons should be able to publish or reveal their own identity without needing a court order, except if there had been a court order authorising their protection. The Department agreed (see document).
The Department proposed inserting the phrase “and where the court has granted an order that extends into adulthood” into section 154(3B)(a), to limit the applicability of that provision.
Dr W Newhoudt-Druchen (ANC) and Ms N Maseko-Jele (ANC) agreed with the proposed amendment to clause 1(a).
No Member expressed an objection.
Ms Maseko-Jele and Mr W Horn (DA) agreed with the proposed amendment to clause 1(b).
No Member expressed an objection.
The Chairperson said that he took it that the Committee agreed with the Bill as amended, and that it could adopt its report on the Bill the following day.
Ms Maseko-Jele agreed.
Deputy Minister Jeffery asked whether, if the Committee adopted the Bill today, Parliament would still have to suspend the three-day rule in order to introduce the Bill in the House on Friday.
The Chairperson replied that the Committee would ask Parliament to suspend the three-day rule.
Deputy Minister Jeffery said that he was asking whether the rule would have to be suspended even if the Committee adopted the Bill in the current meeting.
Mr R Dyantyi (ANC) replied that it would.
Deputy Minister Jeffery asked whether, if the Bill was adopted today, the three days would not include Friday.
Mr Dyantyi replied that Deputy Minister Jeffery could leave that matter to the Committee.
Deputy Minister Jeffery said that he was just trying to be helpful. The Committee tended to favour long reports, but on this Bill its report could be very brief – there had only been one submission and two amendments. However, if the Committee wanted to take the longer route and suspend the three-day rule; that was fine.
The Chairperson said that he thought Deputy Minister Jeffery was concerned about whether the Bill would be passed timeously. The Committee would take all necessary steps to ensure that the Bill was passed on Friday, whether or not that involved suspending the three-day rule. It would adopt its report on the Bill tomorrow.
Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill [B16-2020]: DOJCD on NCOP amendments
Deputy Minister Jeffery said that the NCOP had made a substantial number of amendments to the CLAB. The phrase “person who is mentally disabled” had been replaced – he was not sure why the NA had not attended to that correction. That change had resulted in many consequential amendments, and there were also a few other amendments, most of them technical.
Overview of amendments
Mr Henk Du Preez, State Law Adviser, DOJCD, briefed the Committee on the NCOP amendments. He said that the NCOP appeared to have made a lot of amendments, but that this appearance was deceiving, since few of the amendments were substantive.
The Select Committee had proposed three main categories of amendments:
- Replacement of the phrase “person who is mentally disabled” with the phrase “person with a mental disability”;
- Renumbering of clauses; and
- Technical amendments.
On Deputy Minister Jeffery’s question about why the NA had not itself removed the phrase “person who is mentally disabled,” Mr Du Preez explained that the change had been proposed to the Select Committee by the South African Human Rights Commission. That change had had a “snowball effect,” necessitating several amendments to the Bill.
Clause 6: Prohibitions on employment in section 41(b)
Mr Du Preez said that the NCOP had deleted the reference in section 41(b) to places “where children are present or congregate.”
That wording was too broad and had unintended consequences. This issue had in fact been raised in the Committee previously.
The NCOP had amended the long title of the principal Act to include reference to “sexual intimidation.”
Dr Newhoudt-Druchen noted that the NCOP had made a technical amendment replacing a reference to “child” with a reference to “person who is vulnerable.” She did not want to delay the passage of the Bill, because it was urgent, but she wanted to clarify this. Since persons who were vulnerable could be either children or adults, how would the Bill refer specifically to children when it needed to do so?
The Chairperson said that he had the same concern.
Mr Du Preez replied that there were two categories of provisions in the principal Act. The first category related to offences committed against children specifically. The amendments Ms Newhoudt-Druchen referred to would not affect that portion of the Act. Instead, the term “child” was only replaced in chapter 6 of the Act. Members would recall that the Committee had agreed that, in chapter 6, all references to children or persons with mental disabilities should be replaced by references to persons who are vulnerable. That would extend the ambit of the protections afforded in chapter 6.
Mr Du Preez added that the amendment was a technical amendment because it corrected an unfortunate oversight. The Department had not realised that it had not made the relevant substitutions consistently throughout chapter 6. The NCOP had sought to correct that, since having a remaining reference to “child” in chapter 6 would create interpretational problems.
The Chairperson asked whether he could take it that the Committee agreed with the NCOP amendments.
Ms Maseko-Jele said that she agreed with the NCOP amendments, including with Mr Du Preez’s rationale for the “person who is vulnerable” amendment.
Mr Horn said that the DA reserved its position. It did not necessarily disagree with the Act, but it had to take decisions internally.
Deputy Minister Jeffery said that he knew that the DA always reserved its position. However, he wanted to note that the NCOP had agreed unanimously to the amendments to both the CLAB and the DVAB. Thus the DA had supported the amendments in the NCOP.
The Chairperson said that the Committee would, in the next day’s meeting, consider its report adopting the Bill. It would finalise and adopt that report so that the Bill could be submitted to the NA for debate and final adoption.
Domestic Violence Amendment Bill [B20-2020]: DOJCD on NCOP amendments
Deputy Minister Jeffery said that the many of the NCOP’s consequential amendments to the DVAB stemmed from its decision to make the language of the principal Act gender-neutral. Some of the public submissions had requested this shift.
Overview of amendments
Ms Kalay Pillay, Deputy Director General: Legislative Development, DOJCD, said that the Department’s responses to public submissions in the NCOP had been quite lengthy, due to the nature of the public comments received. However, most of the amendments were technical, and the Bill was improved by the one or two substantive amendments.
The Select Committee had proposed three main categories of amendments:
- Gender neutrality and non-binary inclusivity, with corresponding technical amendments (especially the replacement of “he or she” with “they” and related pronouns);
- Renumbering of clauses; and
- Technical amendments.
Clause 2: Definitions in section 1
The NCOP had amended the Bill’s definitions of:
- “Emergency monetary relief,” to expand the scope of the relevant maintenance; and
- “Harassment,” to include stalking.
Clause 6: Application for protection order in section 4
In clause 6, which amended section 4 of the Act, the NCOP had inserted “immediately” to set the time frame. Similarly, in clause 9, which inserted section 5B dealing with electronic communication service providers, a time frame of “immediately” had been inserted for removing access to electronic communications.
Clause 10: Issuing of final protection order in section 6
The NCOP had amended clause 10 to:
- Extend the notification and return date for the interim protection order and include the respondent as well as the complainant under subsection 6(2A); and
- Require protection orders to be served “within 48 hours or as soon as reasonably possible.”
Clause 12: Court’s powers in section 7
In clause 12, which amended section 7 of the Act, the NCOP had extended the scope of protection to include the non-disclosure of information about where the complainant or a related person studied. A related amendment had also been made in clause 17, which amended section 12 of the Act.
Clause 23: Directives for clerks of court in section 18
In clause 23, the NCOP had added the further requirement that “The directives referred to in this section must ensure that adequate disciplinary steps are taken against a functionary or person who fails to comply with any directive.”
Clause 24: Regulations in section 19
The NCOP had amended clause 24 such that legal aid at state expense could be used to assist the complainant, respondent, a person with a disability, or an older person – instead of only a child – with applying for a protection order.
Ms Pillay also said that the short title of the Bill had also been erroneous – it was the Domestic Violence Amendment Bill.
The Chairperson suggested that the Committee should first discuss the use of non-binary language in the Bill. It could then discuss the technical amendments and the few substantive amendments that the NCOP had made, especially the inclusion of stalking under harassment and the reference to a child’s age.
Adv Swart said that he was trying to understand the Bill’s use of gender-neutral language. He appreciated that it was desirable to extend the Bill’s protections as widely as possible, and he appreciated that the Bill was urgent. However, the gender-neutral provisions did not make grammatical sense to him. For example, it made sense for the Bill to refer to “a functionary” in the course of “his or her duties.” Yet the amended Bill referred to “a functionary” in the course of “their duties.” “Their duties” should have a plural subject, but “a functionary” was singular. The provision would surely now have to refer to “functionaries” in the course of “their duties.” He did not understand how the English language had been applied in such provisions, and he thought it would cause confusion. It seemed that every piece of legislation from now on would be drafted in a way that confused the singular and the plural, and, “from an English-language perspective,” he had a problem with that.
Deputy Minister Jeffery replied that the DVAB was the second bill that had been drafted in non-binary language. The first had been the Cybercrimes Act, which had similarly been amended by the NCOP to be gender-neutral. Non-binary language was more inclusive. Not everyone was a “he” or a “she” – some people were intersex, and some simply did not identify as either. To use gender-neutral language was to “move with the times,” and the legislature had used gender-neutral language before. The CLAB was not drafted in gender-neutral language – he thought that the late Ms J Mofokeng (ANC) had raised that issue, but it had not been pursued. In any case, he thought gender identity was certainly very important in the context of domestic violence.
To Adv Swart’s grammatical concern, Deputy Minister Jeffery said that “they” could be singular or plural. In this respect it was like “you,” which also, and unlike in many other languages, could be singular or plural. It was therefore correct to refer to “a functionary” in the course of “their duties.”
Mr Horn said that he wanted to avoid a general debate about non-binary language – for the purposes of the current discussion, he would accept that non-binary language was going to become the norm in new legislation. However, he thought that the foremost duty of legislators was to ensure that legislative provisions remained clear and unambiguous. He also thought that there was “simply no way” in which “they” could correctly be used in the singular, unless the English dictionary had been rewritten. “They” had always been plural. He therefore shared Mr Swart’s concerns. Although the non-binary language might not have a material impact on the interpretation of the current Bill, he urged that in the future Parliament should be very careful to avoid passing ambiguous legislation.
Ms Pillay said that she noted Members’ concerns. She agreed that the Department had to be careful in using non-binary language, so that there would be no confusion when the legislation was interpreted, such as during the prosecution of a court case. The Department would look carefully at the Bill again, but it had taken very special care to read the pronoun changes in context and to foresee their possible interpretations. It was satisfied with the changes that it had made to the Bill. However, if there were any grammatical challenges, those could be easily addressed.
Deputy Minister Jeffery read out a definition of “they” taken from the Oxford Languages dictionary and provided by Google. The definition accommodated the plural usage that Mr Horn and Mr Swart were familiar with, but it also accommodated the singular usage for “a person of unspecified gender.” Language changed, and, anyway, the singular usage of “they” was evidently nothing new.
Deputy Minister Jeffery said that he understood where Mr Swart’s concerns came from, given the position of the ACDP on LGBTIA+ issues. However, the DA’s position on the issue, as articulated by Mr Horn, puzzled him. As he had mentioned, the Committee had already passed the Cybercrimes Bill, its gender-neutral language notwithstanding. He was not sure what Members’ confusion was.
Adv Swart said that his concerns were largely covered if dictionary definitions accepted a singular usage of “they.” However, the ACDP would be “putting down a marker” on the broader issue. At the same time, the ACDP held that all persons were worthy of full protection in terms of the current legislation.
Ms Maseko-Jele said that she had been slightly concerned to hear Ms Pillay say that the Department was going to go back and look at the language of the Bill again. It had not sat well with her, because she thought that all the NCOP amendments should be dealt with conclusively during the current meeting. The Committee had to decide on this matter today – it could not give the Department an opportunity to revisit the draft. But Mr Swart’s remarks had allayed her concerns, because, if she understood him correctly, he was prepared to accept the current Bill.
The Chairperson said that he thought it would be standard, going forward, for legislation to be drafted in gender-neutral language, so that the laws would be inclusive of everybody. It would be important for government to make an investment in ensuring that parliamentarians and department officials were trained to write in gender-neutral language. Society was evolving, and South Africa’s legislation should also evolve. However, it was also important to ensure that the resulting legislation did not lead to confusion – both Parliament and the executive had to be careful not to draft or pass ambiguous or unclear laws.
Adv Swart said that the ACDP would support the Bill as amended by the NCOP, including with the gender-neutral language. It appreciated the urgency of this Bill, and it supported providing everybody full protection under the Bill. In fact, the need for inclusivity probably applied broadly across all criminal justice legislation. However, the ACDP’s support in this case did not mean that the ACDP would always support the use of gender-neutral language. He asked the Department to look at the issue of gender-neutral language for the purposes of future legislation, as Ms Pillay had undertaken to. How would the courts interpret such language?
Technical and consequential amendments
The Chairperson said that the NCOP had made several grammatical and consequential amendments to the Bill. Was the Committee satisfied with those amendments?
Ms Maseko-Jele said that she was satisfied, and had found Ms Pillay’s briefing helpful.
No Member expressed an objection.
Inclusion of “stalking” under “harassment”
The Chairperson asked whether the Committee agreed with the NCOP that “stalking” should be inserted under the definition of “harassment.”
Dr Newhoudt-Druchen and Ms Maseko-Jele agreed with the proposed amendment.
No Member expressed an objection.
Reference to a child’s age
The Chairperson noted the NCOP’s technical amendment to clause 6 of the Bill, in which the reference to the age of a child had been deleted to prevent misinterpretation. He thought the Bill had said a child was anyone under the age of 16, and asked the Department whether that was correct.
Ms Pillay replied that that was correct.
Ms Maseko-Jele agreed with the proposal.
Dr Newhoudt-Druchen asked whether a child was not anyone under the age of 18.
Ms Pillay apologised for the confusion. The Bill defined a child as a person under the age of 18, though the technical amendment in question had removed a reference to a threshold of 16.
Ms Maseko-Jele said that she agreed with the Bill’s definition. She had been thinking of statutory rape, which applied to anyone under the age of 16.
No Member expressed an objection to the amendment.
The Chairperson invited Members to raise any other amendments they wished to discuss. Could he take it that the Committee was happy with the NCOP amendments and prepared to adopt its report on the Bill tomorrow?
Ms Maseko-Jele and Ms Newhoudt-Druchen agreed.
No Member expressed an objection.
Programme for the remainder of the meeting
The Chairperson said that he had expected the Committee to spend the whole day on the bills, and it had exhausted its agenda much earlier than expected. He therefore wanted to return to the CPAB, to go through the A-version and adopt the Committee’s report on the Bill. On reflection, he thought that Deputy Minister Jeffery was right that the Committee should not burden the House unnecessarily by asking for the three-day rule to be waivered. If the Committee could adopt the report in the current meeting, there would be no need to waive the three-day rule in order to pass the CPAB on Friday. In his understanding, the rule would not apply to the other two bills, because those were returning from the NCOP and so were not new bills.
Adv Swart agreed. The Committee could also consider whether it was necessary for the CPAB to be debated in the House, given that the House was scheduled to consider a lot of legislation on Friday.
The Chairperson said that Adv Swart’s point was very important, and the Committee had to discuss it. Should it opt for a declaration rather than a debate on the bills? Another question was whether the CLAB and DVAB could be debated together, as they had been when they were first introduced in the House. The plenary would be sitting from 10 a.m. until late – the House probably would not adjourn until after 3 p.m. on Friday. So if the Committee could save the House time, it should do so.
Deputy Minister Jeffery said that the Department had not prepared an A-version of the CPAB, but one could be produced quickly. Perhaps the Committee could adjourn briefly.
The Chairperson agreed. It would be prudent to finalise the CPAB today. The Committee had to adopt many sets of minutes tomorrow, before the end of the parliamentary term, and it also had to discuss the vacancies at the IR. He suggested that the Committee should adjourn for three hours. The Committee secretariat had assured him that the Committee’s report on the CPAB was ready.
After some further discussion, the Committee decided to adjourn for only an hour, in order to accommodate Ms Maseko-Jele and Adv Swart’s schedules.
Mr Nqola asked whether the Committee would still adjourn for lunch as planned later.
The Chairperson replied that it depended on how quickly the Committee worked, but there was a good chance that the meeting would end before then. The Committee had expected to adjourn at 6 p.m., but it had been assisted a great deal by the Department’s efficiency. The Committee commended the Department, which had done extremely well, despite working under very difficult conditions and serious time constraints. The Department’s briefings had facilitated easy decision-making. He thanked the Department officials and the Deputy Minister.
The Committee adjourned for an hour.
Criminal Procedure Amendment Bill: adoption
Adoption of report
Mr Mangena led the Committee through the A-version of the CPAB [B12A-2021], which outlined the two amendments the Committee had discussed and agreed to earlier in the meeting (see above).
The Committee then considered its draft report on the adoption of the CPAB.
Deputy Minister Jeffery asked why the Committee secretary had changed the colour of the date to green in the text of the report.
Mr Horn joked that it was because it was Arbour Month.
Deputy Minister Jeffery began to make another comment on the report, but withdrew it upon a second look.
Adv Swart joked that the Deputy Minister missed being a Member of the Committee – the Committee missed him too.
The Committee adopted the report with minor corrections, noting a reservation from the DA.
Mr Horn said that, though the DA had reserved its position as usual, he did not expect the DA to oppose the Bill.
Decision to forfeit debate in the House
Deputy Minister Jeffery reminded the Committee that it had not made a formal decision about the necessity of debating the Bill in the House when it was tabled on Friday.
The Chairperson said that Adv Swart’s proposal was that the Bill should be dealt with by declarations only.
Adv Swart agreed. Debate was unnecessary, given that the Bill was very straightforward and that there was a lot of business for the House on Friday.
No Member expressed an objection to this approach, and the Committee agreed that the Bill should not be debated.
Way forward and closing remarks
The Chairperson wondered whether the other two GBV bills, the CLAB and the DVAB, could also be tabled without a debate.
Adv Swart agreed that they could. In fact, the Committee could also consider dealing with both of those bills under a single declaration. They had previously been debated together.
The Chairperson asked whether the NA rules would allow this, given that the bills had now been amended by the NCOP.
The Committee secretary replied that he was not sure. The Committee should consult the NA Table.
Adv Swart said that, in his understanding, the two bills would remain separate items, but those two items could be taken together for the purposes of the declaration.
Deputy Minister Jeffery agreed with Adv Swart, and apologised for participating as though he was a Member of the Committee. When the two GBV bills had originally been passed in the NA, there had been a single debate on both. His understanding was that there could be a single declaration for both bills – he was sure it had been done before. But the House would have to vote separately on each bill.
The Chairperson said that the Committee would consult the NA Table, so that the question would be settled by the time the Committee adopted the bills at its meeting the following day. For now, the Committee’s preference was that the CLAB and DVAB should be submitted together under one declaration.
No Member expressed an objection to that approach.
The Chairperson thanked the Department and Members. He asked the Committee secretariat what time the Committee’s meeting would begin the following day.
The Committee secretary replied that the meeting would begin at 2 p.m.
The meeting was adjourned.