GBV Bills: deliberations
21 May 2021
In a lengthy virtual meeting, the Committee continued with clause-by-clause deliberations on the Domestic Violence Amendment Bill and the Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill, under the guidance of legal advisers from the Department of Justice and Constitutional Development.
Although the tone of deliberations remained respectful and collaborative, the Committee failed to reach agreement on several provisions, which it flagged for further discussion. There will be one last session of deliberations, the following week before the Committee voted on the bills.
On the Domestic Violence Amendment Bill, the ACDP was concerned that defining domestic violence too broadly would infringe upon religious freedom and upon the parent-child relationship. It thus raised concern with the proposed definitions of physical and spiritual abuse. Members disagreed about whether the Bill should require, rather than merely allow, the court to order respondents to pay emergency monetary relief to complainants. Members also debated the Bill’s provisions for arrest without a warrant, arrest for the contravention of a protection order, and the consideration of applications outside ordinary court hours. In these matters, Members sought to balance the needs of victims of domestic violence with the legal rights of respondents and with the desire not to broaden excessively the powers of police or to overload the criminal justice system. The Committee also remained unsure whether to criminalise the failure to report domestic violence involving children, older persons, and persons with disabilities.
Deliberations on the Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill resulted in more conclusive decisions. The Committee decided that the National Register for Sex Offenders would remain at the Department and that its functions would not be transferred to the police criminal record centre. It also decided that the Bill should extend the obligation to report sexual offences to apply to all sexual offences involving persons with disabilities. Finally, it decided to omit the subsection of the Bill which provided for making publicly available the particulars of convicted sexual offenders. Members were concerned about the constitutionality of the provision, the effects on the offenders’ family members, and the integrity of the National Register’s data. The only unresolved issue was whether the Bill should consider females under the age of 25 years to be vulnerable persons, alongside children, persons with disabilities, and elder persons. The Department was concerned that to include all such women would overburden the employment sector and the National Register, but that the current proposal to include only students might be discriminatory.
The Committee considered and adopted its report on Budget Vote 25: Justice and Constitutional Development and on the annual performance plans of related entities.
Committee Report on Department 2021/22 Budget Annual Performance Plan
The Committee considered its draft report on the annual performance plans 2021/22 of the Department of Justice and Constitutional Development (DoJ&CD), National Prosecuting Authority, Legal Aid South Africa, Special Investigating Unit, Public Prosecutor South Africa, South African Human Rights Commission, and Information Regulator; and Budget Vote 25: Justice and Constitutional Development.
The Committee Report was adopted but the DA, ACDP, and EFF reserved their positions on the report.
Domestic Violence Amendment Bill: clause-by-clause deliberations
Adv Sarel Robbertse, State Law Adviser, DoJ&CD, said that he would continue from the where the Committee had stopped during its last session. This was paragraph (j) of the definition of domestic violence in clause 2(i) of the Bill. Adv Dellene Clark, State Law Adviser, DoJ&CD, was also present to respond to Members’ questions.
Clause 2(i): Definition of “domestic violence”
Adv Robbertse said that paragraph (j) of the definition of domestic violence was a “catch-all provision,” intended to cover any conduct that should fall within the Bill’s ambit but that was not captured by other provisions of the definition. As discussed in prior deliberations, the redrafted Bill omitted the harm requirement, which defined domestic violence as conduct from which harm ensued. However, Members, including Mr S Swart (ACDP), had been concerned that the definition required some kind of limiting provision, to ensure that the definition of domestic violence was not unduly wide. Adv Robbertse presented three options for paragraph (j), where the third incorporated a harm requirement.
The Chairperson asked which option Adv Robbertse recommended.
Adv Robbertse replied that he recommended the third option. That option referred to “intimidating, threatening, abusive, degrading, offensive or humiliating” conduct, and required that such conduct must harm, or inspire the “reasonable belief” that harm may be caused to, the complainant.
Ms N Maseko-Jele (ANC) said that she was satisfied with the third option. It made sense to her, and it incorporated provisions from both other alternatives.
Mr W Horn (DA) agreed that the third option seemed like the broadest option. He asked Adv Robbertse for information about how the term “reasonable belief” had been interpreted in other legislation and by the courts. This was relevant to the Bill’s implementation. Would the provision allow courts to deal with possible criminal action in a simple way?
Adv Robbertse replied that the Criminal Procedure Act (CPA) spoke of “reasonable suspicion” in relation to search warrants and, in section 40, in relation to arrests without a search warrant. Reasonable suspicion or reasonable belief was a qualifying criterion that could be added to certain conduct. He would probably want to discuss the point in more detail later, but, in short, it prescribed a set of minimum and objective criteria that had to be met. The courts had usually interpreted the requirement in reference to a factual situation – the question was whether, from the factual situation, the court could assume that the relevant suspicion or belief was reasonable. The requirement was usually interpreted under the “reasonable man” standard.
Clause 2(j): Definition of “economic abuse”
Adv Robbertse said that economic abuse was one of the conducts included in the definition of domestic violence. He proposed a new definition of economic abuse, which extended the definition currently in the Bill to include further conducts. It also provided that for disposal of the complainant’s property to qualify as economic abuse, that disposal had to take place without the complainant’s permission. He thought this definition was preferable. It was in line with legislation in the Australian Capital Territory.
The Chairperson said that, since there was no comment from Members, he would take it that they were satisfied with this proposal.
Ms Maseko-Jele agreed.
Clause 2(k): Definition of “educator”
Adv Robbertse said that he had previously believed that the Bill’s definition of “educator” should be removed, because the Minister could specify certain functionaries by notice in the Government Gazette. However, upon reflection, and because the definition of “functionary” referred to various other categories of persons, he now believed that the current definition of “educator” should be retained. However, as he would discuss later, the other functionaries mentioned in the definition of “functionary” should also be defined.
Clause 2(k): Definition of “elder abuse”
Adv Robbertse presented two possible definitions of elder abuse – the first was the definition currently in the Bill, and the second defined elder abuse by reference to the Older Persons Act. However, he proposed a third option: deleting the definition entirely. Elder abuse did not necessarily have to be included as a form of domestic violence in the Bill. Elder persons would, for all practical purposes, be considered complainants under the Domestic Violence Act. That is, any conduct that was already covered by the definition of domestic violence would still be covered if that conduct was committed against elder persons. The second option referred to the Older Persons Act – but section 33 of that Act defined elder abuse as including various conducts, such as physical harm and sexual abuse, which the Bill already included in its definition of domestic violence. Moreover, the current definition of elder abuse in the Bill was extremely vague and prescribed only a subjective test.
Ms W Newhoudt-Druchen (ANC) said that she understood that other forms of abuse also applied to elder persons, but she would prefer the definition of elder abuse to remain in the Bill.
Ms Maseko-Jele agreed. She agreed with Adv Robbertse that the first option, currently in the Bill, was too wide, and that the definition should specify certain kinds of conduct. However, the definition should remain in the Bill. There had been many domestic violence incidents involving elder persons, and if the definition was omitted, elder persons would feel as though the Bill did not accommodate them.
Mr Swart acknowledged that, according to Adv Robbertse, the definition was not strictly necessarily. However, given what other Members had said, the Committee should therefore consider retaining the definition, purely for reference purposes. In that case, he recommended the second option, because it cross-referenced the very clear definition of elder abuse provided in the Older Persons Act. That way, if there was an instance of domestic violence involving elder persons, the Act would direct people to the Older Persons Act, which they might not otherwise have been aware of.
The Chairperson concluded that Members thought that the definition should remain in the Bill and that, for now, they preferred the second option.
Ms Y Yako (EFF) agreed.
Clause 2(k): Definition of “electronic communications”
Adv Robbertse said that the Bill currently defined electronic communications by reference to the Electronic Communications Act. He proposed a new, more detailed definition, which captured the definition used in the Electronic Communications and Transactions Act as well as that used in the Electronic Communications Act.
Ms Maseko-Jele said that she agreed with the recommendation. However, for interest’s sake, she wanted to know what was meant by “moving images,” which was included in the definition as amounting to electronic communications.
Adv Robbertse replied that moving images could include, amongst other things, comics or GIFs used online. The definition referred separately to “video,” but videos captured real events in electronic form. Comics or images that were used to make a movie would be covered by “moving images.” A “picture” was something different – a photograph.
Ms Maseko-Jele asked if he meant something that was like a picture, but that was not live like a video – like a moving picture.
Adv Robbertse replied that, for example, in anime or Japanese comics, many movies mainly consisted of hand-drawn art. Together, those moving images made up a movie.
Mr Horn added that GIFs circulated on Whatsapp. If you downloaded a GIF, it was saved as an image – even though it was, in fact, something like a two-second video. So it was necessary to include “moving images” in the definition to encapsulate the kinds of graphics that were used on social media platforms like Whatsapp.
Ms Maseko-Jele said that she was satisfied with Adv Robbertse’s proposal.
Ms Newhoudt-Druchen asked if memes and TikTok videos were covered by the definition. There was a lot of “teasing” in TikTok videos.
Adv Robbertse replied that he thought that almost all electronic representations transmitted by electronic communications services would be covered by the definition. The definition was extremely comprehensive.
Clause 2(k): Definition of “electronic communications identity number”
Adv Robbertse proposed a shorter definition than that currently in the Bill. It defined an electronic communications identity number as “a technical identification label which represents the origin or destination of electronic communications.” This captured the main purpose of the number. All other information included in the number was needed to identify the origin or destination of the electronic communication. Section 21(8) of the Cybercrimes Bill used his proposed definition in relation to the information needed to identify a communication.
The Chairperson asked if he could take it that Members accepted the proposal.
Ms Maseko-Jele replied that he could.
Clause 2(k): Definition of “electronic communications service provider”
Adv Robbertse proposed specifically including private electronic communications networks and related services in the definition of “electronic communications service provider,” because such networks could be used for the purposes of domestic violence. This was important for the enforcement of the obligations imposed on electronic communications service providers later in the Bill.
Clause 2(l): Definition of “emergency monetary relief”
Adv Robbertse said that the provision related to the powers of the court in relation to protection orders. He thought it should probably make express provision for the maintenance of a child in the care of the complainant, pending finalisation of maintenance procedures in terms of the Maintenance Act. That would ensure that the needs of such a child were taken into account. Section 7(7)(b) of the current Domestic Violence Act could then be used to qualify the provision, restricting the ambit of the application of maintenance.
Ms Newhoudt-Druchen said that she thought that the Act granted that the court may order the respondent to pay emergency monetary relief. If so, the Act had to be amended to require that the court “must” order the respondent to pay emergency monetary relief. The Bill should contain a stronger term than “may.” If a family was forced to leave their house in an emergency, they might not have access to the requisite resources.
Adv G Breytenbach (DA) said that she agreed with Adv Robbertse’s proposal to include the provision about maintenance. However, she disagreed with Ms Newhoudt-Druchen about the word “may.” One did not easily prescribe to the courts or interfere with their discretion. One had to accept that the courts would apply judicial discretion. In that context, that the court “may” make an order did not mean that the court would make an order if it felt like it. It meant that the court would make an order if the circumstances warranted it. She was therefore satisfied with the word “may.”
The Chairperson asked Ms Newhoudt-Druchen and other Members whether they were satisfied with Adv Robbertse’s proposal about the maintenance provision. Did Members’ disagreement pertain only to the difference between “may” and “must”?
Ms Newhoudt-Druchen replied that she was satisfied with Adv Robbertse’s proposal. However, she thought – specifically for the purposes of emergencies – that the Act should require that the court must make an order on emergency monetary relief.
Ms Maseko-Jele said she was satisfied with Adv Robbertse’s proposal. Like the definition of elder abuse, it should be included for reference. On the “may” issue, she acknowledged that changing the wording to “must” might give the impression that the legislature was dictating to the courts and limiting their discretion. However, she also understood Ms Newhoudt-Druchen’s view. She did not want to undermine the decisions of the courts, but there had been issues with magistrates in the past. Some magistrates did not send a “strong message” on domestic violence. If the Committee wanted to take domestic violence seriously, which of course it did, then it should consider putting more stringent requirements on the courts.
The Chairperson asked if the Committee had fully considered the unintended consequences of limiting the courts’ discretion.
Mr Swart said that, though he understood the view of the other Members, he agreed strongly with Adv Breytenbach. If the Act prescribed to the courts, there would be constitutional problems and unintended consequences. The definition of emergency monetary relief listed several things that the courts would have to consider. And, where a magistrate acted incorrectly, that judgement could always be appealed.
The Chairperson asked Ms Newhoudt-Druchen whether she had changed her view.
Ms Newhoudt-Druchen replied that her view had not changed. The point of the Bill was to serve the victims of domestic violence. It should not allow the courts, or anybody else, to increase the victims’ suffering. She was not saying that the Bill should prescribe to the courts, but the Committee should take the victim’s experience into account. However, the Committee could discuss the issue later during clause-by-clause deliberations, once they knew what the Bill would look like overall.
The Chairperson said that the Committee was currently in the midst of clause-by-clause deliberations. Next week would be clean-up of the Bill, where the Committee would deal with the Bill one final time before it was approved by the House. The Committee might come back to the “may” issue later in the meeting, or possibly in a meeting next week. But the Committee would not be revisiting any provisions on which it reached agreement in the current meeting. Next week it would revisit only those provisions on which there had been disagreement.
Clause 2(m): Definition of “emotional, verbal or psychological abuse”
Adv Robbertse proposed two definitions, both of which added additional grounds – beyond those currently included in the Bill – that might amount to emotional, verbal or psychological abuse. The second option was more comprehensive – it also included threats to other persons and threats to commit self-harm. Both definitions included a reference to harm. The reference to harm could be omitted from the current definition if Members decided to include a harm requirement in the definition of domestic violence, because the latter requirement would qualify the definition of emotional, verbal or psychological abuse.
Mr Swart said that both definitions were extremely broad. He was not necessarily opposed to them but he wondered whether they might have unintended consequences. He noted that both options listed types of conduct after the word “including,” so the provisions were not exclusive. He was not certain that it was desirable to make all the additions that Adv Robbertse proposed. Also, the definition was broad enough that it would surely cover other types of abuse included in the Bill, such as elder abuse. Would the definition of emotional, verbal or psychological abuse cover spiritual abuse, which the Committee had discussed previously?
Adv Robbertse replied that the definition might cover spiritual abuse to some extent, because it contained the word “including.” If the word “including” was removed, the definition would prescribe a closed category of conduct that could meet the definition, excluding others. But there might be some instances where emotional, verbal or psychological abuse did not fall into the types of conduct expressly listed under the definition. On the other hand, the definition was indeed broad. But the broadness and any unintended consequences would be mitigated, to a large extent, by the inclusion of a harm requirement in the definition of domestic violence. The Bill would then require that the complainant had to suffer at least some kind of harm. Most foreign legislation included most of the conducts listed in his proposals.
Mr Swart clarified that he was not suggesting that the word “including” should be removed. However, the current Bill said that emotional, verbal or psychological abuse involved degrading or humiliating conduct. Adv Robbertse’s proposal extended this to include manipulating, threatening, offensive, or intimidating conduct. However, he was satisfied with the proposal and happy to move on for now – though the Committee should consider whether the proposal had unintended consequences.
Adv Clark said that this clause of the Bill had arisen from concerns that it was currently difficult to prove emotional, verbal or psychological abuse, because the existing Act defined such abuse as involving a “pattern” of associated conduct. It was difficult to prove such a pattern. She also agreed that the proposed definition would cover spiritual abuse.
The Chairperson asked Mr Swart whether he was opposed to the proposal.
Mr Swart replied that he was not opposed.
Clause 1(n): Definition of “functionary”
Adv Robbertse proposed that each of the specific functionaries mentioned by the Bill should be defined, since clause 3 of the Bill imposed obligations on these functionaries under the inserted section 2A. He therefore proposed inserting definitions for “medical practitioner,” “health service personnel” (substituting for “health service provider”), “social worker,” “official in the employ of a public health establishment,” and “care-giver.”
Clause 1(o): Definition of “harassment”
Adv Robbertse said that the definition provided by the current Bill was in line with the Protection from Harassment Act. However, since the drafting of that Act, there had been substantial developments in legislation dealing with harassment and stalking. He therefore proposed various amendments to the definition. His proposed definition retained the Act’s requirement that electronic communications had to be repeated to constitute harassment – since one or two communications clearly did not constitute harassment. His proposal also included additional conducts under the scope of harassment, including unauthorised access to a complainant’s communications and the monitoring or tracking of the complainant. The additional provisions were recognised in foreign legislation, including that of the Australian Capital Territory. He thought his proposed definition was broader, better, and would provide wider protection.
Ms Maseko-Jele said that she did not disagree with Adv Robbertse’s proposal. However, she wanted to know if the proposed definition would cover certain family disagreements that arose between married couples. For example, she might decide to go through her husband’s phone without his consent, because she was unhappy with him. If he became angry with her, could he claim that he had harassed her?
Adv Robbertse said that such conduct would be covered by the addition of paragraph (d) in the proposed definition, which referred to “unauthorised access to a complainants [sic] communications or electronic communications.” The Bill of Rights awarded communications very high protections, and it was an offence to intercept someone else’s communications. However, again, if a harm requirement was included, that would qualify the definition.
The Chairperson said that he would take it that Members accepted Adv Robbertse’s proposal.
Clause 1(p): Definition of “harm”
Adv Robbertse recommended that the definition of harm should be excised from the Bill, so that “harm” would be open-ended and have its ordinary dictionary meaning. The definition in the Bill was quite wide. The current Act, and legislation from New Zealand and Australia, did not prescribe a specific harm requirement, referring instead to “abuse.”
Adv Clark agreed with the proposal.
Adv Breytenbach also agreed.
Clause 1(p): Definition of “integrated electronic repository”
Adv Robbertse recommended that a definition of “integrated electronic repository” should be inserted to facilitate interpretation, since many provisions of the Bill referred to such repositories.
Clause 1(q): Definition of “intimidation”
Adv Robbertse provided two alternatives to the definition of “intimidation” in the current Bill. The first alternative was quite wide, and the second was qualified by the intent of the conduct. He recommended the latter.
Clause 1(r): Definition of “person in a close relationship”
Adv Robbertse proposed inserting a definition of “person in a close relationship” into the Bill. The term was relevant to the definition of a domestic relationship and to further conduct that constituted domestic violence. The definition of “related person” in the Bill was not informative.
Mr Swart noted that the proposed definition outlined several criteria to be considered in evaluating the closeness of a relationship. Should all the criteria be read together? The first criterion, the “degree of trust” between the persons, was very broad. For example, there was a large degree of trust between an employer and an employee, or between members of a political party. Would those relationships qualify as close relationships? If so, that was a possible unintended consequence of the provision, since the Bill sought to focus on domestic violence. He was not objecting to the proposal, but he wanted to understand it better.
Adv Clark replied that the criteria were to be read conjunctively, because the last criterion was introduced by the word “and.” That is, the criteria were seen collectively, not individually, such that a high degree of trust would not alone be sufficient for a close relationship. The provision aimed to address abuse of protection orders. For example, currently, some tenants applied for a protection order to avoid eviction, claiming that they had a relationship with the landlord. The framing in the proposed definition would exclude such abuse.
The Chairperson asked Mr Swart if he was satisfied.
Mr Swart replied that he was. The word “and” made a big difference to the provision.
Clause 2(s): Definition of “physical abuse”
Adv Robbertse said that the Bill substituted a new definition of “physical abuse,” which constituted domestic violence. He proposed extending the current definition by inserting several additional provisions that added further types of relevant conduct. Because the types of conduct were introduced by the word “includes,” the definition was open-ended.
Mr Swart said that he thought he had previously raised concerns about this provision, in relation to the parent-child relationship. He was aware of the Constitutional Court ruling on corporal punishment at home, and he understood that there were other ways of disciplining one’s children. However, parents did threaten to smack their children unless they followed their instructions. His understanding was that the parent-child relationship did fall within the scope of the Bill and the Act – and rightly so, because of course there could be domestic violence within such a relationship. But, with regard to the definition currently under consideration, the Committee had to be alert unintended consequences.
Adv Robbertse replied that the proposed definition, by way of paragraph (a), dealt specifically with “physical violence.” Physical violence could be interpreted as on the level of assault, which was an offence in South African law, or it could be interpreted as something less. Of course, physical violence and threats of physical violence could take place in a parent-child relationship. Members had expressed concern – not with respect to this provision, but with respect to another provision dealing with conduct constituting domestic violence – that the provisions might be too broad. That is, specifically, there was concern that the provisions might affect a parent-child relationship, because they might include certain disciplinary behaviours on the part of the parent. However, again, if a harm requirement was included in the definition of domestic violence, then some demonstrable harm would have to be present. That might, to a large extent, mitigate the broadness. For example, a father might tell his child to stay in his room for two days because he had been naughty. If that child applied for a protection order on that basis, the court would have to consider whether there had been a reasonable harm.
Adv Swart acknowledged the response and said that he thought he supported the qualification stemming from the harm requirement. He also thought that a strong argument could be made under the de minimis rule, such that prosecution probably would not be brought in such cases. He was satisfied with the proposal for now, but he would like the Committee to look at the issue more closely.
Ms Newhoudt-Druchen noted that paragraph (d) of the proposed definition included “withholding or threatening to withhold a complainants [sic] medication” as conduct constituting physical abuse. If someone gave the complainant an overdose of his medication, without his knowledge, would that be covered by the definition?
Adv Robbertse replied that the definition was open-ended, so an overdose would be included.
Clause 2(t): Definition of “related person abuse”
Adv Robbertse proposed inserting a definition of “related person abuse.” In the current Bill, certain conduct that could be committed against the complainant could also be committed against a person related to the complainant. His initial submission had been that the related person was a complainant in his own right, but that submission was removed in the working document. There was, however, a need to address related person abuse, and to include it as a new ground of domestic violence.
Clause 2(t): Definition of “residence”
Adv Robbertse proposed inserting a definition of “residence,” which he had discussed with the Committee previously. The definition was relevant, among other things, to the powers given to police to enter a residence to obtain evidence in connection with domestic violence.
Mr Swart noted that the definition began with the words, “‘residence’ means…” He wondered whether the definition would therefore exclude certain structures that people used as residences and that were not expressly mentioned in the definition. Unfortunately, some people lived under pieces of plastic. Would it not be better for the definition to begin inclusively, with the word “includes” rather than “means”?
Adv Robbertse replied that the definition began, “‘residence’ means any part of any structure, including…”, and went on to list examples of such structures. “Structure” had its dictionary meaning and was therefore broad. So the definition was already very wide. Still, he would consider broadening the definition to accommodate Mr Swart’s concerns, perhaps by using the word “includes.”
Clause 2(t): Definition of “respondent”
Adv Robbertse proposed inserting a new definition of “respondent,” with a definition of “co-respondent." His proposal broadened the definition to include not only those who had committed or allegedly committed an act of domestic violence against the complainant, but also those who had used or allegedly used a co-respondent to commit or allegedly to commit such an act. There was a trend, recognised in foreign jurisdictions under the term “associated respondent,” whereby respondents used third parties to commit domestic violence. The current Bill was not clear about whether third parties could be cited in cases under the Act, and about whether the Protection from Harassment Act had to be used to deal with a third party’s conduct. There might be procedural implications of including third parties under the Act.
Ms Newhoudt-Druchen supported the proposal. If a husband had a third party kill his wife, that qualified as murder, not harassment. Because of situations like that, she supported the proposal.
Clause 2(v): Definition of “sexual harassment”
Adv Robbertse said that he thought the proposal to amend the definition of “sexual harassment” had been explained before the Committee previously. The proposal intended to clarify the definition.
The Chairperson solicited feedback, and Members expressed approval of the proposal.
Clause 2(w): Definition of “spiritual abuse”
Adv Robbertse said that the Bill’s insertion of a definition of “spiritual abuse” had previously been discussed in the Committee. Mr Swart had expressed concerns that the definition was too wide and would breach constitutional rights. As a second option, Adv Robbertse proposed a new, narrower definition which took Mr Swart’s suggestions into account. Central to the matter was Freedom of Religion South Africa v Minister of Justice, in which the Constitutional Court had found that corporal punishment in the home was unconstitutional. Also important was Prince v President of the Law Society of the Cape, in which the Court found that religious freedom could permissibly be limited to prevent harm to others.
Mr Swart said that he preferred a third option: deleting the definition of “spiritual abuse.” Since the Committee’s last discussion, the working document had been changed and new proposals had been made on various definitions. As Adv Robbertse and Adv Clark had said earlier, the definition of emotional, verbal or psychological abuse was now broader and included spiritual abuse. Other provisions, including the catch-all provision of the domestic violence definition, also covered spiritual abuse. It was therefore unnecessary to define spiritual abuse, since, if such abuse involved harm, it was sufficiently covered by other definitions in the principal Act and in other legislation. However, he would understand if other Members wanted a “belts-and-braces” approach. In that case, he would prefer the second option to the definition currently in the Bill, because the second option was in line with the Constitution. He was concerned about the right to religious freedom. For example, within a household, there might be discussions of a religious nature – perhaps an exchange of ideas between parents and an atheist child.
Ms Maseko-Jele said that she recognised elements of the Committee’s prior discussions in the new proposal. She thought that the new proposal covered her, but she wanted to check. Her concern with the definition in the current Bill had been about abuse within spiritual training practices. It had been on television recently – participants in the practices had been beaten and felt abused. She did not want to interfere in the religious practices of others, but she wondered whether such abuse was covered by the proposal.
The Chairperson said that Members should bear in mind that they were dealing with spiritual abuse within the confines of domestic violence.
Adv Robbertse said that physical violence within a religion was not covered under spiritual abuse, though it would probably be covered under physical abuse. However, if it took place within a domestic violence relationship, paragraph (c) of the proposed definition might apply. Paragraph (c) included as spiritual abuse “using the complainant’s religious or spiritual convictions and beliefs to justify or rationalise abusing the complainant.” That might cover any violence that had a religious undertone – for example, violence justified by the proverb, “spare the rod, spoil the child.”
Ms Yako said that she supported the new proposal. She approved of the broadness of paragraph (c). It captured how religion could be used to perpetuate abuse against women.
Mr Horn said that he also supported the new proposal. However, in paragraph (c), he wondered whether the word “using” should be replaced with the word “manipulating.” The provision seemed ultimately to be about manipulation. “Using” was broader, so “manipulating” might accommodate Mr Swart’s concerns better.
Adv Robbertse said that he did not understand Mr Horn’s point.
Mr Horn said that, taking into account Mr Swart’s reservations, he wondered whether “using” at the start of paragraph (c) should be replaced with “manipulating,” a narrower term. He did not necessarily oppose the current proposal, but such an adjustment might be worth considering.
Adv Robbertse replied that the word “manipulating” could probably be used, but “using” was probably more appropriate. The underlying basis of the provision was that the respondent might use the complainant’s beliefs to justify abusive conduct. It did not actually relate to manipulation of the complainant’s beliefs. It was the complainant who was manipulated, not his convictions.
Ms Newhoudt-Druchen thanked Mr Swart for being willing to assist the Committee by accepting the new proposal, the second option. She knew that he had reservations around spiritual abuse, but spiritual abuse could and did occur. Some religious sectors deviated from the Constitution, causing harm and abuse. She supported the new proposal. However, it did not mention economic abuse by those in the religious sector. For example, people lost their pensions because they were giving money to the church.
Adv Robbertse replied that economic abuse in a religious environment was not included under spiritual abuse, but it might amount to economic abuse. However, as the Chairperson had indicated, to fall under the scope of the Act, it would have to be economic abuse within a domestic violence relationship.
Mr Swart said that he was between a rock and a hard place, because he was trying to support the Committee but was fundamentally opposed to the definition. He appreciated his colleagues’ support, and Mr Horn’s suggestion was helpful. However, he had to record a reservation. He was particularly troubled by the biblical example that Adv Robbertse had used in responding to Ms Maseko-Jele’s question. The ACDP would clearly object to the implication that it constituted abuse for a parent to adhere to “spare the rod, spoil the child.” He wanted to assist the Committee, but his preferred option remained to delete the definition. He therefore reserved his position.
Ms Maseko-Jele said that she understood Mr Swart’s reservations. She was also uncomfortable with the example Adv Robbertse had used – she did not think that that example would be covered by the proposal. Members should put the example aside and concentrate on the proposal itself, which she agreed with.
Clause 2(y): Definition of weapon
Adv Robbertse said that the definition of “weapon” was important because the court had the power to order the confiscation by police of certain weapons. However, the definition in the current Bill excluded various other harmful objects and substances that could be used to commit domestic violence. These might include medications, like date-rape drugs; sulfuric acid or hydrochloric acid; or intimate communications and private information. He asked the Committee for guidance on whether the orders of the court should be broadened so that such objects could be confiscated. Importantly, powers to confiscate had to be specifically authorised by legislation.
Ms Maseko-Jele noted that paragraph (a) of the definition referred to airguns, ammunition, firearms, and so on. She asked if traditional weapons could be referred to specifically in that paragraph.
Adv Robbertse replied that traditional weapons would be covered under paragraph (b), which referred to any other object “likely to inflict grievous bodily harm or a dangerous wound” if used to commit an assault. But the other objects and substances he mentioned would not be covered by that provision, although they could be used to cause harm.
Ms Newhoudt-Druchen said that she supported retaining paragraph (b), because objects other than guns were used to commit sexual violence. Did paragraph (b) cover those other objects?
Adv Robbertse replied that paragraph (b) probably would not cover an object used, for example, in compelled sexual assault. Such cases were why he proposed broadening the orders of the courts under the Act, to authorise the police to confiscate other objects or material that were relevant to domestic violence and which could be used to inflict grave psychological or emotional harm.
Adv Clark said that the definition of “weapon” in the Bill was intended to replace the archaic definition of “arm” in the existing Act. It should also be read together with section 9 of the existing Act, which dealt with the seizure of arms and dangerous weapons, or, in the consolidated version, with the seizure of weapons. Members should bear in mind that if the relevant powers were broadened too far, the police would be allowed excessively far-reaching powers of seizure. For example, hydrochloric acid could be used in domestic violence, but it was also a household item, normally used for a legitimate purpose. On the other hand, a firearm or a dangerous weapon, like a traditional weapon, could be used for direct physical violence.
The Chairperson asked Adv Robbertse to move onto the next clause.
Adv Robbertse said that he would take it that the Committee did not want to proceed with extending the provisions for seizure of objects and materials.
Clause 3: Obligations of functionaries relating to domestic violence
Adv Robbertse said that the proposed changes to the inserted subsection 2A had already been discussed in the Committee. He reminded Members that the criminalisation provision in respect of the provisions had been removed, such that non-compliance with the obligations by functionaries would no longer be an offence.
Clause 3: Obligation to report domestic violence and to provide information
Adv Robbertse said that the insertion of section 2B had also already been discussed in the Committee. The section pertained to the reporting of domestic violence involving a child, a person with a disability, or an older person. However, the Committee still had to make a decision on subsection (4), which criminalised the failure to report knowledge or reasonable suspicion of such domestic violence. The criminalisation of the failure to report had been criticised during the public consultation process. Only the Older Persons Act criminalised a failure to report – the Mental Health Care Act and the Children’s Act did not. The Committee had previously raised several concerns about the criminalisation provision. One issue was the effect of criminalisation on health, counselling, and other emotional and psychological support services that were offered and accepted on the basis that they were confidential. Those confidentiality obligations were imposed by legislation. Another issue was the situation, for example, of a mother who failed to report domestic violence against her child. In addition, the criminalisation provision might discourage persons from assisting complainants. For example, if a friend or family member was approached to provide advice or assistance after an incident of domestic violence, he would be required to report suspected domestic violence to the South African Police Service (SAPS). Furthermore, other proposals in the working document narrowed down the definition of domestic violence, but the definition still incorporated a subjective element. That is, it might be difficult for third parties to evaluate domestic violence “at face value.” If the criminalisation provision was retained, it ought to be restricted, perhaps so that it applied only in cases where there was a serious danger of harm to a complainant. If all cases were reportable, the provision might lead to a “system overload.” He asked for guidance from Members.
Mr Swart said that it was a very difficult question and that Members needed to consider it. On the one hand, he fully understood that the Bill had to encourage people to report domestic violence, especially in the circumstances set out in the proposed section 2B. Currently, many people who should report issues did not report them – they were aware of domestic violence but chose to ignore it, and lives were lost as a result. Legislation should ensure that such people did report issues. On the other hand, criminalising the failure to report could have unintended consequences, and indeed could have consequences opposite to those intended. He was undecided. He understood both sides, and he was interested to hear what other Members thought.
Mr Horn agreed with Mr Swart. The Bill should impose an obligation to report, but he did not support criminalising non-compliance with that obligation. Criminalisation would have an adverse or “chilling” effect, making people unwilling to involve themselves constructively in domestic violence issues that affected their immediate circle or neighbourhood. It could make people unwilling to involve social services when they were aware of such issues, and it would also make the work of social services in respect to such issues intolerably complex. The Committee had heard ample evidence to that effect during the public hearings on the Bill.
Adv Breytenbach agreed, and was “very hesitant” to include a criminalisation provision. She wanted to give the issue further thought. She was not rejecting the provision outright. Perhaps it could be reworded to make the obligation less onerous. However, for now, she was not really willing to support criminalising the failure to report.
Ms Maseko-Jele also agreed with other Members. It was a difficult issue, and it was necessary to encourage the community to report domestic violence. Maybe Adv Robbertse could propose a rewording of section 2B. A related issue was the anonymity of those who reported domestic violence. Currently, there were incidents where a person reported an incident of domestic violence, expecting the police to keep his report confidential. Yet later on the person’s identity was revealed, allowing the perpetrator to intimidate him. How could the Committee assist in that regard?
Ms Newhoudt-Druchen said that it was a very complex issue, because many factors, including family pressures and socioeconomic situation, could play a part in non-reporting. The Bill should contain some form of encouragement or obligation to report. It should strongly express that certain people – social workers, teachers, or doctors – had an obligation to report domestic violence to the police, even if they also had confidentiality obligations.
In summation, the Chairperson said that there was no disagreement about the obligation to report, but Members wanted to think further about the issue of criminalisation. The Committee would return to that issue in its deliberations the following week. He asked Mr Robbertse to draft two options, one criminalising the failure to report and the other merely imposing an obligation, especially, as Ms Newhoudt-Druchen said, on people like doctors and social workers.
Adv Robbertse replied that he thought the obligation of doctors and other such people was probably covered by the Bill’s insertion of section 2A. However, he acknowledged that the Committee needed another version of section 2B for consideration, one which did not impose a criminal offence but which did provide measures to encourage and facilitate reporting.
Clause 4: Arrest by police officer without warrant
Adv Robbertse said that clause 4, which amended section 3 of the principal Act, provided for arrests by a peace officer without a warrant of arrest. SAPS had raised many issues with the provisions. There were two central questions about section 3(1) as amended. The first was whether the Bill should retain subsection (1)(a), which provided for the arrest of respondents suspected of committing “an act of domestic violence which constitutes an offence in terms of any law.” He was concerned that this provision afforded police excessively broad powers to arrest respondents, and that it might be abused. It might allow the police to arrest people on very minor offences. Possibly, the Domestic Violence Act did not need to afford police officials the relevant powers. Section 40 of the CPA already provided for a peace officer to arrest, without a warrant, a person suspected of committing a schedule 1 offence, including assault and other such offences. The provision should also be read in conjunction with the Criminal and Related Matters Amendment Bill, which the Committee had approved and which placed very onerous conditions on such a person for application of bail.
The second question was whether the Bill should retain subsection (1)(b), which provided for the arrest of respondents suspected of contravening a protection order. Adv Robbertse thought that this provision was in conflict with other provisions of the Act, which prescribed a specific procedure for the arrest of such a person. Specifically, before the police could arrest a person for contravening a protection order, the complainant had to provide an affidavit and the protection order. But section 3(1)(b) would allow the arrest to take place without this procedure being followed.
The Committee adjourned for a three-minute break. On return, Members agreed to adjourn at 1pm for a half-hour lunch break, since the meeting would continue through to the evening.
On clause 4 of the Bill, Ms Maseko-Jele asked Adv Robbertse to remind Members of his concerns. She was broadly happy with the proposal.
The Chairperson said that he thought the issue was whether section 3 should be omitted from the Bill, and the CPA relied on instead.
Adv Robbertse repeated the two questions he had posed. The ultimate question was indeed whether the provisions should remain in the Bill.
Mr Horn said that the provisions should not be included if they were not necessary. The Bill would not work in isolation once enacted. He was concerned that if the provisions were retained, and unless they were very carefully phrased, they might enable abuse of the law and of the processes. He would opt for retaining the discretionary powers of peace officers and police officials as provided by current legislation. Hopefully, those officials had a clear and proper understanding of their powers in terms of current legislation. To include further provisions in the Bill might “muddy the waters.”
Ms Maseko-Jele asked if Members could have time to consider the issue. They could make a final decision in the next session of deliberations.
The Chairperson said that the Committee had to bear in mind that it could not push forward too many issues. If too many issues were left outstanding at the end of the current meeting, it would be difficult to finalise the bills. Currently, it was only halfway through the Bill, and there would only be one more meeting on the Bill before the Committee voted on it.
Ms Maseko-Jele said that, for now, she agreed with Mr Horn’s position.
Ms Newhoudt-Druchen said that gender-based violence and domestic violence were increasing, and that if a violent person was not removed from a domestic violence situation immediately, there could be very dire consequences for the family. She would therefore prefer for the provisions to remain in the Bill. However, if other Members agreed to remove them, she would accept their decision.
Adv Breytenbach said that legislation already provided for arrests to be made without a warrant if there was a reasonable suspicion that a crime had been committed or was about to be committed. Therefore she was not sure that the provisions were necessary. And if they were not necessary, they probably should not be included in the Bill – they would just encourage abuse.
Adv Clark said that she thought there was a misunderstanding. It might be helpful to highlight that the police’s concerns about section 3 of the Act centred on certain powers that the police currently lacked. The police were frequently called out to a scene where a person had committed an act of domestic violence, but that act had not been committed in the presence of the police. Then, if the perpetrator left the scene of the incident, for example to hide in a neighbour’s garden, the police could not arrest him – because current legislation required that the suspect had to be at the scene. That was why Adv Robbertse’s proposed provisions referred to a peace officer “who attends the scene of an incident of domestic violence.” That would allow the officer to arrest a perpetrator who had left the scene.
The Chairperson asked if the central issue was about who was present at the scene of a domestic violence incident.
Adv Clark replied that it was. If the perpetrator hid in the field or home next door to the scene, the police could not arrest him, because the offence had not been committed in the presence of the police as required by current legislation.
The Chairperson asked for confirmation that the CPA did not cover such a scenario.
Adv Clark replied that it did not. The police had highlighted that as a concern, in relation to the powers afforded to peace officers by the existing Domestic Violence Act.
The Chairperson asked if Adv Clark recommended that the Committee retain the provisions.
Adv Clark recommended that the Committee should not omit section 3 in its entirety.
Mr Swart said Adv Clark’s explanation was helpful, because it reminded Members of concerns about what happened when a peace officer arrived at a scene after an incident of domestic violence had taken place. He had initially been concerned about including a provision which was basically the same as a provision of the CPA, where the latter had already been subject to jurisprudence. But Adv Clark’s remarks changed the situation and warranted the Committee reconsidering. He would possibly support retaining the provisions, with the qualifier “who attends the scene” as proposed by Adv Robbertse.
The Chairperson asked other Members whether their views had changed.
Adv Breytenbach replied that she was comfortable with retaining the provisions.
Mr Horn agreed, but said the Committee would obviously have to discuss the phrasing of the provisions.
Ms Maseko-Jele agreed. She was happy with Adv Clark’s explanation.
Adv Robbertse said that subsection (1)(b) still had to be considered. The Bill could not prescribe two different procedures on the contravention of a protection order. But the Committee could return to that issue later.
Adv Robbertse moved onto section 3(2), as amended by clause (4) of the Bill. The Bill currently required that “a peace officer must arrest a person who is reasonably suspected of having committed an act of domestic violence where physical violence is involved.” He thought that this provision was sufficient, and would not give rise to problems in practice. However, he provided two further options for the Committee’s consideration, both of which clarified the provision further. The police had raised concerns about incidents involving self-defence, and the two other options tried to provide “belt and braces” to ensure that there had to be a reasonable suspicion or belief that an offence had been committed. He thought the second option was sufficient.
Adv Clark said that the second option was fine. There had been concerns about the provision currently in the Bill, because the obligation it imposed on peace officers implied that both parties to a domestic violence incident would be at the risk of arrest.
The Chairperson asked if the Committee was satisfied with the second option.
Adv Robbertse said that in the second option, he had made a change that was not reflected in the working document. The proposal would now refer to a respondent who the peace officer on reasonable grounds suspected of having committed an offence. Suspicion was a less onerous burden than the prior reference to belief.
The Chairperson approved.
Adv Clark noted that the provisions referred to the arrest of a person, rather than the arrest of a respondent. This would significantly broaden the scope of arrest. Any person at the scene of the incident, and not just the person who had committed the offence, would then be at risk of arrest. That would extend the police’s powers, so the issue might require consideration.
Adv Robbertse said that the remainder of clause (4) – which amended section 3(3) – had already been explained to the Committee. It pertained to the powers of peace officers who did not belong to SAPS.
Clause 5: Entering of private residence for purposes of obtaining evidence
Adv Robbertse said that clause 5 inserted section 3A into the Act. The section afforded police additional powers through an exemption to section 26 of the CPA, where the CPA provided that police could gain access to a premise without a warrant but only with the owner’s consent. His only proposal was to substitute the word “residence” for the word “dwelling” wherever it appeared in the section, since the former was the terminology used elsewhere in the Domestic Violence Act.
Clause 6: Application for protection order
Adv Robbertse said that clause 6 amended section 4 of the Act. Various amendments were proposed, including to provide for electronic procedures for applying for a domestic violence interdict. The first issue for the Committee’s consideration was section 4(3)(b). Subsection 4(3) provided that an application for a protection order could be brought on behalf of a complainant, but only with the complainant’s written consent. Subparagraph (i) of section 4(3)(b) made an exception for complainants under the age of 16 years, providing that an application could be brought on the child’s behalf without his permission if the court considered the application to be in his best interests. The exception had previously sparked discussion in the Committee, with Members expressing concern that children should retain the autonomy to have a say in whether an application was brought. For example, a child would not always want other people to know about sexual offences involving him. The Committee therefore had to consider whether to retain the exception provided for by the proposed insertion of subparagraph (i).
Ms Newhoudt-Druchen noted that section 4(3)(a) used the term “mentally retarded,” which was considered unacceptable in the disabled community. She requested that the language be amended.
The Chairperson asked Ms Newhoudt-Druchen to suggest the correct terminology.
Adv Robbertse said that the term “mentally retarded” appeared in bold and in square brackets, so it was repealed by the current Bill and would no longer appear in the Act.
Ms Newhoudt-Druchen was satisfied.
Ms Maseko-Jele said she was also satisfied.
Moving onto section 4(4), Adv Robbertse proposed an amendment that was not in the working document. He proposed that a representative of an approved organisation should be allowed to apply for a protection order on behalf of a child. Foreign legislation made such provisions. Several South African organisations worked with children and might assist children to apply for protection orders. Members should consider the issue.
On section 4(5), Adv Robbertse said that the subsection provided for the consideration of applications outside ordinary court hours. He proposed various textual corrections to the provision currently in the Bill. However, he also proposed a narrower alternative, which provided certain specific criteria that would be used to determine whether an application outside ordinary court hours should be considered. Under the proposal, an application could be considered by the court outside ordinary court hours if the court was satisfied that (a) domestic violence had taken place; (b) the complainant was suffering or might suffer harm; and (c) the complainant might suffer undue hardship if the application was not dealt with immediately. The current provision was broad and referred only to the reasonable belief that the complainant was suffering or might suffer harm. The proposed alternative would mitigate an influx of applications outside ordinary court hours.
The Chairperson asked if the proposed alternative was comprehensive enough.
Adv Robbertse replied that the alternative provided additional criteria that were not in the current provision and that had to be met before a person could make an after-hours application. It would make it more difficult to apply for a domestic violence interdict. The proposal emanated from discussions with magistrates, who said that many applications were brought after-hours.
Ms Maseko-Jele said that she was satisfied with the proposed alternative.
Mr Swart agreed.
When the Committee returned, Mr Swart raised a concern with Adv Robbertse’s proposed alternative under subsection 4(5) as amended by clause 6. The proposed section 4(5)(c) referred to the possibility that the complainant might suffer “undue hardship” if the application was not immediately attended to by the court. But people had reported that undue hardship was difficult to prove. The onus was on the complainant to prove undue hardship, and, since the application was urgent, the complainant already had to make his case on the basis of urgency. How could the Committee assist complainants in reducing this burden?
Adv Robbertse replied that paragraph (c) of subsection 4(5) was intended to exclude cases where immediate action was not necessary. For example, there might be cases where domestic violence had taken place in the past, but where the matter could be dealt with in ordinary course and was not urgent. “Undue hardship” was meant to provide some sort of criterion for a court to determine the urgency of the application. The term was not defined, so it would have its ordinary dictionary meaning, and should be interpreted as meaning that the complainant would suffer “adverse consequences” if the application was not dealt with urgently.
Adv Clark said that “undue hardship” had been raised as a concern. She recommended that the word “undue” should be removed, so that paragraph (c) would require only hardship, not undue hardship, to the complainant. That way, the court did not have to determine how much hardship qualified as undue hardship. The court could instead consider whether the hardship was significant enough to merit urgent consideration.
The Chairperson asked for confirmation that the recommendation was to remove the word “undue.”
Adv Clark and Adv Robbertse replied that it was.
Mr Swart said that he remained concerned. The provisions pertained to applications brought outside court hours. The complainant already had to persuade a magistrate, under the proposed paragraph (b) of subsection 4(5), that he was suffering or might suffer harm as a result of domestic violence. That was an objective test that the complainant had to meet. Section 4(5)(c) then imposed the additional requirement of proving that hardship was suffered. Was that warranted, or was section 4(5)(b) sufficient? However, if DoJ&CD believed that section 4(5)(c) had to remain, he appreciated the suggestion that “undue” should be removed.
Mr Horn said that, in studying comparative pieces of foreign legislation, he had gotten the impression that undue hardship was relevant when the court had to decide about the provision of alternative accommodation, immediate medical care, and social services. The undue hardship requirement seemed to have “crept in” unnecessarily to the consideration of urgent applications for protection orders. Undue hardship would be applicable when what was being considered was the provision of other services to the complainant, and not simply the provision of assistance from the legal system.
Adv Robbertse said that if harm was proved, as required by section 4(5)(b), then one could conclude that there had been domestic violence that adversely affected the complainant. But section 4(5)(c) was to ensure that urgent applications for protection orders could be considered outside ordinary court hours. It was true that foreign legislation did provide for such applications, without any real limitation or requirement of immediate adverse consequences. But elsewhere in South African law, where urgent applications for orders were permitted, there was a requirement that immediate adverse consequences should be at stake if the order was not considered. However, he had provided two options. The first option was a lightly amended version of the provision currently in the Bill, and did not require undue hardship. If the Committee felt that was more appropriate, they should retain that option instead of his proposed alternative.
Mr Swart said that he preferred the first option to Adv Robbertse’s proposed alternative. That option did already require the objective determination that harm was suffered or would be suffered.
Ms Maseko-Jele agreed with Mr Horn. She suggested that Adv Robbertse look into “beefing up” the first option, to make it stronger, so that women could be satisfied with the provision.
The Chairperson asked if she supported the first option, but thought it should be reworked.
Ms Maseko-Jele replied that that was correct. The first option, which she agreed with, should be rephrased to be made stronger and to incorporate some of the second option which Adv Robbertse had proposed.
Adv Robbertse said that he would redraft the provision to include less onerous obligations or criteria for the complainant.
Adv Robbertse moved onto section 4(7) as amended by clause 4 of the Bill. He proposed that section 4(7)(b) need not require that the clerk of the court had to immediately submit the application to the court. The directives applicable to the clerks of the court in terms of the proposed section 18A should regulate this aspect. He proposed an alternative wording of the provision, but his primary recommendation was to omit the word “immediately.”
Mr Swart said that he understood the rationale behind the proposed omission and was inclined to support it.
Clause 6: Domestic violence safety monitoring notice
Adv Robbertse said that, as discussed previously in the Committee, he proposed inserting section 4A to the Act under clause 6 of the Bill. The section provided that a complainant could apply for a domestic violence safety monitoring notice, which in effect would ensure that the police monitored the safety of the complainant. He was not sure whether the section should be included, and the Committee had deferred its decision. He therefore asked for Members’ guidance.
Ms Newhoudt-Druchen said that she supported inserting the section.
Mr Horn agreed. The Committee should legislate on the assumption that other departments would ultimately put in place the requisite support services. The Department of Social Development and others had seemed willing to assist in this regard. The section was, in theory, a good idea.
Adv Robbertse said that there were other issues that arose in connection with the section. SAPS had to make officials available for monitoring purposes and had to provide certain information to the complainant. The clerk of the court also had to inform the respondent that the notice had been approved, and had to provide a copy of the notice to the complainant. He would insert the relevant provisions into a future draft of the Bill.
Clause 7: Consideration of application and issuing of interim protection order
Adv Robbertse said that clause 7 amended section 5 of the Act. His proposed changes were not substantive. Under section 5(2), he proposed drafting changes, providing factors that had to be considered before the court could issue an interim protection order, but the proposal resembled the provisions in the current Bill. He proposed inserting section 5(4)(b) to provide for the capture of additional documents by the clerk of court. Finally, he proposed inserting section 5(8)(b) to address a lacuna in the current Bill, providing that the interim protection order must be forwarded to a police station of the complainant’s choice. This would ensure that police were informed that an order had been issued.
Clause 8: Electronic communications service provider to furnish particulars to court
Adv Robbertse said that the Committee had previously discussed the insertion, under clause 8, of section 5B, which addressed electronic communications harassment in line with other legislation. He proposed minor drafting corrections. He also proposed amending the section such that the obligation to provide information about electronic communications service providers would fall on the Director-General: Communications and Digital Technologies.
Clause 8: Existing and reciprocal orders and applications
Adv Robbertse said that the Committee had also previously discussed the insertion of section 5C. The provisions in the current Bill mainly provided for the issuing of protection orders, requiring that during that process the court must consider various other orders that might have been issued by a court. He proposed extending the section to also include applications.
Clause 9: Issuing of final protection order
Adv Robbertse said that his proposed amendments to clause 9, which amended section 6 of the Act, mainly involved redrafting and clarification. Section 6(1A) was inserted to provide for circumstances in which a respondent failed to appear; section 6(2)(c) was inserted to provide for a dispute of fact; and section 6(3)(a) brought the provisions in line with the amended Magistrates’ Court Act and attempted to minimise the harm that could be caused when a respondent questioned a victim in a hearing.
Mr Horn agreed with the proposals.
Adv Robbertse also proposed inserting section 6(6)(b) to provide for the capturing of various documents by the clerk of the court on the integrated electronic repository.
Clause 10: Establishment of an integrated electronic repository for domestic violence protection orders and related matters
Adv Robbertse said that clause 10 inserted section 6A into the Act to provide for the establishment of the integrated electronic repository. During the public consultation process, stakeholders had raised various shortcomings with the provisions currently in the Bill. Information security was critical, and access to the repository had to be regulated. He recommended that the provisions in the Bill should be replaced by his more comprehensive alternative proposal.
The Chairperson noted that the Information Regulator had to be defined in the Bill, because it was mentioned in the proposed section 6A.
Ms Maseko-Jele asked if the integrated electronic repository pertained only to protection orders. Was it not supposed to include everything?
The Chairperson asked what Ms Maseko-Jele meant by “everything.”
Ms Maseko-Jele replied that if the Act had a broader scope than merely protection orders, the Bill should align with the Act.
Adv Robbertse said that the repository had two purposes. First, it was a repository of information – it provided entities in the criminal justice system with access to information relating to domestic violence orders and applications. Second, it might also be used to facilitate electronic applications for protection orders. That second aspect would mainly be dealt with in subordinate legislation, since it was not currently known what the repository would ultimately look like. However, even if the repository was not used to accommodate electronic applications, there was ample authority for the use of fax and email to process applications for protection orders.
Ms Maseko-Jele said that she was satisfied, as long as the Bill was aligned with the Act.
Ms Newhoudt-Druchen asked if the electronic repository would supplant the current manual application procedure for protection orders.
Adv Robbertse said that it would not. The proposed version of section 4(1)(b) of the Act would specifically provide that an application for a protection order could be lodged with the clerk of the court, as well as electronically.
Clause 11: Court’s powers in respect of protection order
Adv Robbertse said that clause 11 amended section 7 of the Act, which regulated the powers of the court in respect of protection orders. Previously, the Committee had discussed inserting reference to a “co-respondent,” under section 7(1)(b). He proposed doing so, to avoid having to deal with interdicts issued under multiple different laws in cases where third parties were involved in the commission of domestic violence. He also proposed rephrasing the amended section 7(1)(h) to improve clarity.
Adv Robbertse said that section 7(7)(b) was relevant to the earlier discussion about the definition of emergency monetary relief. The provision should be read alongside that definition, which he had earlier suggested should specifically include maintenance. He proposed that the current version of the paragraph was sufficient, provided it was supplemented with reference to maintenance orders as a form of emergency monetary relief.
Adv Breytenbach agreed.
Clause 12: Warrant of arrest upon issuing of protection order
Adv Robbertse drew Members’ attention to section 8(4) of the Act as amended by clause 12. The section prescribed the procedure following the contravention of a protection order by a respondent, allowing a police official to either arrest the respondent or to serve him with a written notice to appear in court. In discussion earlier in the meeting, he had highlighted this section as in conflict with section 3(1)(b) of the Act as amended by clause 4, because the latter allowed police officials to arrest such a respondent without following the procedures prescribed in section 8(4). The Committee had to consider the issue.
Adv Clark said that grassroots non-governmental organisations, and other people who supported women with domestic violence issues, were concerned about section 8(5). Under section 8(4)(b), the police official had to arrest a respondent for contravention of a protection order if the official had a reasonable suspicion that the complainant had suffered or might suffer harm due to the alleged breach. Section 8(5) listed factors that the official had to consider when determining whether the complainant suffered or might suffer harm. Stakeholders had said that arrests were not performed because cases failed to meet all the criteria, and they asked for the omission of (c) and (d) from these criteria. The factors (c) and (d) referred to – the length of time since the alleged breach occurred, and the nature and extent of the harm previously suffered in the domestic relationship – were irrelevant. The other criteria were sufficient for officials to make the necessary assessment about the presence of harm and the need for intermediate intervention.
The Chairperson asked for Members’ views on the omission of section 8(5)(c)-(d).
Mr Horn requested more time to consider the issue and the concerns expressed. What Adv Clark said made sense, but he did not want the whole system established by the Bill to become unbalanced or too “lenient.”
The Chairperson said that the Committee would return to the issue the following week.
Clause 17: Service of documents
Adv Robbertse said that clause 17 amended section 13 of the Act. He proposed the insertion of section 13(1)(b), which required that where the complainant and the respondent shared a residence, any documents served must be served personally to the complainant or to the respondent. This would prevent a situation in which documents destined for the complainant were served to the respondent, or attached to the door of the shared residence for the respondent to intercept. He also proposed the insertion of section 13(1)(c), which would accommodate electronic service of documents if there were no other means by which the document could be served.
Clause 20: Offences
Adv Robbertse said that the proposed amendments to clause 20, which amended section 17 of the Act, were merely technical redrafts. Specifically, references to first and second offences had been replaced by references to first and second convictions.
Adv Robbertse said that there were no significant amendments proposed to any other clauses, beyond what had previously been discussed in the Committee. He highlighted in closing that the Bill amended section 40 of the CPA, to provide for the arrest of respondents under certain circumstances. The decisions made by Members about other provisions of the Bill might necessitate minor drafting amendments to the provision specifying the extent of the CPA amendment. In particular, arrests for the contravention of a protection order were, again, problematic.
Ms Newhoudt-Druchen asked what the Committee had decided, after its last session, about the Bill’s definition of disability. She had been unhappy with the proposal in that session.
Adv Robbertse replied that, as instructed by Members, the definition currently in the Bill would be retained. Adv Clark had consulted with the appropriate departments.
The Chairperson asked Adv Robbertse to return to the next meeting bringing only the unresolved issues – those on which Members had been undecided or had disagreed. Then, hopefully, the Committee would be ready to vote. It was under serious time pressure. He thanked Adv Robbertse, Adv Clark, and everyone else who had worked on the Bill.
Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill: clause-by-clause deliberations
Mr Henk Du Preez, State Law Adviser, DoJ&CD, said that the working document consisted of two parts, each corresponding to a different decision the Committee might take on the National Register for Sex Offenders (NRSO). Each corresponded to a different option that the Committee had discussed at its meeting the night before. The first part of the document (pages 2-24), corresponding to the first option, was primarily the Bill as introduced, with the ambit of chapter 6 expanded by an extension to all sexual offences and by the expansion of the definition of vulnerable person. The second part of the document (pages 25-47), corresponding to the Committee’s second option, was a version of the Bill which omitted the NRSO from chapter 6 and transferred its functions to the SAPS criminal record centre. He would begin with the first option. Ms Ina Botha, Principal State Law Adviser, DoJ&CD, was also present to provide input.
Long title and clause 1: Objects of the Act
Mr Du Preez said that, depending on what the Committee decided about other provisions, the long title of the Bill might have to change, and amendments might have to be affected to clause 1, which amended section 1(g) of the Act. Among other things, he proposed specifying that “sexual offences” in that paragraph referred to “sexual offences as defined in section 40.” This was because the Act contained two definitions of sexual offences – one in section 1, and one under chapter 6 in section 40. He would explain the latter definition to Members later.
Clause 3: Incest
Mr Du Preez said that the Committee had already discussed the amendments made by the Act to section 12(1), which pertained to incest. He asked if the Committee was satisfied with the proposed provision.
Mr Swart said he thought the Committee was satisfied.
Mr Horn agreed.
Clause 4: Sexual intimidation
Mr Du Preez said that the Committee had also already discussed the insertion of section 14A, dealing with sexual intimidation, to the Act. However, he could not remember whether he had drawn Members’ attention to the portion which provided that a person who was guilty of sexual intimidation might be “liable on conviction to the punishment to which a person convicted of actually committing a sexual offence would be liable.” He asked if the Committee approved.
The Chairperson took Members’ silence as approval.
Clause 5(a): Definition of “employer”
Mr Du Preez said that clause 5 amended the definition of “employer” under section 40 of the Act. The Bill merely affected consequential amendments, including referring to a “person who is vulnerable” rather than a “child.” However, where the provision referred to employees who had “access to” a vulnerable person, Members had previously been concerned that this requirement was very wide, and that it should be reconsidered in view of the proposed definition of vulnerable persons, which had been expanded. He therefore proposed two further options for the definition. The first option restricted “access to” to refer only to access to children and certain persons with disabilities, rather than access to all vulnerable persons. The second option removed the “access” requirement, and referred only to employees who worked with vulnerable persons. DoJ&CD recommended the second option. It would be very helpful to the legal advisers if the Committee could make a final decision on the provision.
Mr Horn said that, in principle, the second option seemed best. However, at a Committee meeting the night before, Members had heard that adult females under the age of 25 would be included as vulnerable persons. He wondered how that should be factored in.
Mr Swart agreed. He thought the concern with the provision in the current Bill had been about unintended consequences, so a narrower definition would be better. If DoJ&CD recommended narrowing the definition by way of the second option, the Committee should do that.
Ms Newhoudt-Druchen said that she would support the second option, provided that it covered all vulnerable persons – for example, regardless of what kind of disability they had.
Mr Du Preez said that he would discuss the definition of vulnerable persons next. But, to Ms Newhoudt-Druchen’s concern, that definition did include persons who had “a physical, intellectual or sensory disability” and who were cared for in specific facilities.
Clause 5(c): Definition of “person who is vulnerable”
Mr Du Preez said that clause 5 inserted a definition of “person who is vulnerable” under section 40 of the Act. The working document provided three options, all of which included, under paragraph (b), any “female under the age of 25 years.” The first option was very similar to the provision in the current Bill, and had been discussed previously in the Committee. The second option was very wide. The third option was the Committee’s preferred option in previous deliberations, but he would like Members’ final approval. However, there was a further issue to consider. Though all three options included females under the age of 25, Members would recall that DoJ&CD had always been hesitant to include this group as vulnerable persons. The third option added criteria restricting the category to females under the age of 25 who were still undergoing higher education or training. But, apart from whether the third option was still the Committee’s preferred option, he wanted to know whether paragraph (b) – the provision that referred to females under the age of 25 – should not be omitted entirely.
Mr Swart said that he preferred the third option. On females under the age of 25, and especially female students under the age of 25, he said that this was a group which was known to be very vulnerable to sexual offences. The provision conveyed that the legislature wanted to protect that group, and he was inclined to keep it. The Committee had already discussed the issue at length. He would like to think about it more, though he knew the Committee had limited time. He asked Mr Du Preez to remind Members what the practical implications were of removing the reference to females under the age of 25. Would there be unintended consequences, and would it result in any harm to those women?
Mr Horn said that in the meeting of the night before, the Committee had heard that it could have adverse effects or unintended consequences to include females under the age of 25 without limitations of the kind provided by the third option. Without those limitations, females under 25 might be discriminated against in some way, because their presence in a workplace would put an additional burden on employers once the Bill was enacted. The third option did address that issue. Further guidance from Mr Du Preez would be helpful.
Ms Newhoudt-Druchen agreed that the third option seemed better, although she had not yet studied it in detail. To add to Mr Swart’s question about the unintended consequences of removing paragraph (b), she would also like to know about the unintended consequences of retaining paragraph (b). The Committee wanted to protect vulnerable women.
Mr Du Preez said that DoJ&CD’s concern with retaining paragraph (b) was that it would necessitate the vetting of a huge number of employees. Even with the limitations provided by the third option, the workforce employed at higher education institutions and facilities was huge. Moreover, the provision might even create “a false sense of security.” On the other hand, he did not currently foresee any unintended consequences of removing paragraph (b). Females under 25, and particularly those identified in the third option, were vulnerable to sexual offences, but DoJ&CD did not have the necessary empirical knowledge or data to establish whether employees at higher education institutions and facilities – those whose vetting would be necessitated by the provision – were a particular threat to the group. So it was unclear whether the retention of paragraph (b) was justifiable.
The Chairperson asked Members whether they still favoured the third option and whether they favoured removing paragraph (b), even as reworked by the third option.
Mr Swart replied that the Committee should approve the third option, but should seriously consider removing paragraph (b). The provision applied only to the employment environment, and there were clearly possible unintended consequences of retaining paragraph (b) – a large number of lecturers would need to be screened.
Mr Horn agreed.
Ms Newhoudt-Druchen said that she was not convinced that paragraph (b) should be removed. She asked Mr Du Preez to look into how Title IX was handled in the United States. Title IX had been enacted in the United States because of the risks to university students, and a survey was being conducted about it.
Mr Du Preez asked for more details about Title IX.
The Chairperson asked if the workforce that Mr Du Preez referred to – the employees who would need to be vetted under the Bill – was limited only to lecturers and other staff at universities and colleges.
Mr Du Preez replied that it depended on how “employer” was defined in the Bill. It seemed as though the Committee was leaning towards restricting the very wide definition of “employer,” precisely because the definition of vulnerable person was being extended beyond children and persons who were mentally disabled. But the provision would affect not only professors but everyone who worked at universities. DoJ&CD could not determine precisely how many such employees there were. A further concern about the provision, which had been mentioned previously to the Committee, was that it might have a “knock-on effect” or “snowball effect.” The provision would necessitate the vetting not only of existing employees but also of those who applied for jobs at higher education facilities and institutions. The NRSO might be “flooded” with applications. This could be to the detriment of job applicants, if it caused a delay such that applicants were not able to submit their job applications timeously.
Mr Du Preez said that he really needed guidance from the Committee. The Chairperson had said that after the current meeting, the Bill would only be discussed once more the following week, because the National Assembly wanted to vote on both bills on 4 June. He had to express to the Committee that he was very concerned about time pressures – not necessarily on the Committee, but on him. He undertook to do his utmost best to finish his work as and when required, and not to disappoint the Committee. But he had to do a lot of work “behind the scenes” after that day’s meeting. He had to go back to the Bill as introduced and prepare all the amendments for submission to the Committee at its next meeting. He also had to work on the translation of the Bill, so all his work was in fact duplicated and thus took a lot of time. He did not know how the deadlines would be met if the Committee left matters outstanding and was not in a position to vote on all the amendments. The Committee might have to add a further meeting about the Bill to its programme.
The Chairperson said that Mr Du Preez had raised a similar concern in a previous meeting last term. Due to that, the Committee had postponed the Bill to the current term. The Bill had also previously been postponed in 2020 because of concerns about workload. The Bill had to be passed on 4 June; it was “politically unfeasible” to postpone it again, and the Committee could not afford to do so. Mr Du Preez had to work to that deadline.
Mr Du Preez said that he would undertake to do so. But DoJ&CD needed the Committee’s guidance about the final provisions of the Bill.
The Chairperson said that Members should try to give as much guidance as possible in that day’s meeting, so that DoJ&CD would know what they were working with and could work efficiently towards the deadline. The Committee would deliberate on the Bill once more the following week, and then it would meet to vote on both bills. It did not have any time for further engagements on the bills.
Mr Swart agreed that the Committee had to “start moving quickly.” Though it was not ideal, if the Committee could not agree on one or two issues, those issues could always be left to the National Council of Provinces (NCOP) processes. The Committee was under pressure from the Chief Whips’ Forum and from Parliament, who wanted the bills finalised as quickly as possible.
Returning to the definition of “person who is vulnerable” in clause 5(c), Ms Botha said that the third option tried to narrow down the group of females who were protected by the provision – because keeping it wide would have a huge effect on the working sector. The third option narrowed it down by referring exclusively to female students. This meant that a 23-year-old woman who worked at Checkers or the Post Office would not be covered by the definition. The government might be accused of discriminatory practices.
The Chairperson asked Ms Botha to repeat her point about discrimination.
Ms Botha said that under the third option, only students received “improved protection.” That protection did not apply to other females under the age of 25 – for example, to young women who worked at Checkers or the Post Office. To that extent, the government could be accused of discriminating against those who were not students – the working citizens of the country. At the same time, Members had to remember the reason that the limited scope of the third option had been proposed. She was not advocating for the unlimited scope that paragraph (b) had in the first and second options. She just wanted to point out that retaining paragraph (b) under the third option might make the government subject to accusations of discrimination.
The Chairperson asked for confirmation that with regard to paragraph (b), the Committee had to balance between two things. On the one hand, the first two options, which sought to protect all females under the age of 25, were “cumbersome.” On the other hand, the third option had the unintended consequence of possible discrimination.
Ms Botha replied that that was correct.
Mr Swart said that Ms Botha’s point was valid. The Committee wanted to protect all vulnerable women, but why should students receive the relevant protection and not women who worked until late at night at Checkers or elsewhere? Many of those working women were just as vulnerable. Far more women under the age of 25 were employed than were students. The government could rightly be asked why it was only protecting one category of females under 25. That made it difficult to justify retaining paragraph (b) of the definition. All vulnerable women would be protected under the general provisions of the Bill.
Ms Newhoudt-Druchen said that, because of the time pressures, she thought that the Committee should go with the general provision that protected all women.
The Chairperson asked if Members were recommending that the Committee should choose the third option, but delete paragraph (b).
Mr Swart replied that he was.
The Chairperson said that the Committee would flag the issue and return to it when it was finished with the rest of the Bill.
Clause 5(d): Definition of “sexual offence”
Mr Du Preez said that clause 5(d) inserted a definition of “sexual offence” into section 40 of the Act. Following public comment, DoJ&CD had conceded that the definition currently in the Bill posed a problem. He proposed an option which drew a distinction between two categories of sexual offence, depending on whether it had been committed before or after the enactment of the Bill.
Mr Swart thanked Mr Du Preez for his assistance.
Clause 6: Prohibition on certain types of employment by certain persons who have committed sexual offences
Mr Du Preez said that clause 6, which amended section 41 of the Act, was the first clause dealing with the substantive provisions of chapter 6 of the Act. The clause in the current Bill primarily made consequential amendments to insert the phrase “person who is vulnerable,” as defined above, where appropriate. He had prepared two other options. The first option threw the net very wide, and again encountered the issue discussed above about the breadth of the requirement of “access to” vulnerable persons. The second option, which the Committee had preferred in a previous meeting and which DoJ&CD recommended, attempted to restrict the ambit of the prohibition on employment only to those who worked with persons who were vulnerable.
Mr Swart said that it was important that the definition of vulnerable persons had been broadened, and that section 41 dealt with prohibitions on certain kinds of employment. The Committee therefore had to be very sensitive to the constitutionality of the prohibition, and the provision should be as narrow as possible. He therefore agreed with DoJ&CD’s recommendation.
Ms Maseko-Jele agreed.
Clause 7: Establishment of NRSO and designation of Registrar
Mr Du Preez said that clause 7 amended section 42 of the Act. The amendments were primarily consequential. He noted that clause 7(b) made insertions – specifically, of paragraphs (b) and (c) of subsection 42(3) – which aimed to facilitate the decentralisation of NRSO functions to the provinces. That had been discussed at the Committee’s meeting the night before. Clause 7(c) inserted subsection 42(4) on the public availability of NRSO information on the DoJ&CD website. He provided three alternative versions of section 42(4) for the Committee’s consideration. The first option made certain exceptions to the requirement that the NRSO must make publicly available the particulars of offenders. This meant that the names of fewer offenders would be publicly available. The second option went further, and entailed that the information would not automatically be made available to the public – instead, it provided for persons to apply to the NRSO for the relevant information. Finally, the third option also provided for applications to be made, but extended the criteria for applications. Under the third option, only “interested persons” – defined in section 42(7) by their relation to vulnerable persons – could make applications for the information. In short, the issue at stake was that raised in the Committee the night before: the public availability of information. If he remembered correctly, the Committee had been cautioned against “going in that direction.”
The Chairperson asked if Mr Du Preez recommended the second option.
Mr Du Preez replied that the second option had been the preferred option during prior deliberations. However, the Committee should consider its stance on the public availability of information. DoJ&CD was not sure whether public availability would “serve any useful purpose.”
The Chairperson agreed that Members should first address the issue of public availability as a matter of principle.
Mr Horn said that the Committee had to be certain “beyond reasonable doubt” about the integrity of the information that was to be made available. If there were doubts about the integrity of the information, making it publicly available would be “a big risk” and would unduly expose DoJ&CD to liability in the event of an “honest mistake.” Moreover, an honest mistake could have very severe consequences for a person whose information was wrongly included in the NRSO. He was not inclined to place too much emphasis on the rights of offenders, but he was looking at the issue from the perspective of implementation. Although Parliament should legislate on the assumption that implementation would be of a high standard, he was concerned about the integrity of the NRSO data. He was therefore “very hesitant” to make the information publicly available on a website, especially if safeguards were not built into the Act to require auditing and triple-checking to verify the information’s veracity.
The Chairperson added that even if the Committee was not considering the rights of offenders, the family members of offenders could be negatively affected if the information was made public. Members should treat the issue “very sensitively.”
There was no objection to the proposal that the information should not be published online, and that the Bill should place limitations on the procedures for obtaining the information.
The Chairperson asked if Members preferred the second option or the third option, as presented by Mr Du Preez, for subsection (4).
Ms Botha said that if the Committee did not want the information to be publicly available, then subsection (4) would be deleted in its entirety – all three options would fall away. She also added that in the previous night’s meeting, concern had been raised about vigilantism and about the possibility that the children of offenders would be targeted.
Mr Du Preez said that he did not want to “sound like a broken gramophone,” but his concern with public availability – beyond all the risks to offenders’ innocent family members – was that it might create a false sense of security. Conviction rates were low, and not all sexual offenders were convicted. Moreover, such a provision could not predict who would commit an offence in the future. He therefore doubted that the public availability provision served a useful purpose.
Mr Horn said that he had been in support of the second option, which at least provided a route for information to be made available on application. However, did DoJ&CD think that the second option should incorporate the protections that the first option gave to offenders who had been children at the time of the commission of the offence? The first option exempted those offenders’ particulars from inclusion.
Ms Maseko-Jele said that she was worried that there had been an “outcry” from community members. People were unhappy that government was more concerned about protecting perpetrators – and their identities and families – than about protecting victims. People were “really complaining.” Was the Committee adequately considering the rights of victims?
The Chairperson said that it was important that the Committee passed laws that could pass constitutional scrutiny. The question about making the NRSO publically available had to be considered through that lens.
Mr Du Preez said that it was unfortunate that there was an impression that DoJ&CD was more concerned about the rights of convicted offenders than the rights of victims. Chapter 6 of the Bill was entirely focused on the protection of potential victims – it was not about protecting convicted offenders. The Bill placed stringent prohibitions on sexual offenders, including prohibitions on employment, which in turn affected their livelihoods. Those prohibitions were an important tool in protecting victims and potential victims. Moreover, the Chairperson was correct that the provisions had to be constitutionally compliant. The Committee had received an opinion from a parliamentary legal adviser, in which it had been warned that making the NRSO publicly available might pose risks in that regard.
Ms Newhoudt-Druchen asked for clarification. Would the NRSO still exist, even if it was not publicised? That is, would the information still be available – for example, to employers – but just not publicly available?
Mr Du Preez replied that the information would still be in the NRSO. Certain parties, including potential employers and employees, would have to apply for certificates to be issued, as currently provided for by chapter 6. The certificates would indicate whether or not the person had been included in the NRSO, and if he had, there would be certain consequences, for example through the prohibitions on certain types of employment.
Ms Newhoudt-Druchen said that, as raised in a previous meeting, the Information Regulator would have to play a part in the matter, because the protection of privacy and of personal information were at stake.
There were no objections to omitting subsection 42(4) from the Bill.
Clause 15: Persons whose names must be included in the Register and related matters
Mr Du Preez proposed a technical amendment to clarify the definition of “sexual offence” as it appeared in clause 15 in relation to retrospective information about historical offences.
Clause 16: Removal of particulars from the Register
Mr Du Preez said that clause 16 amended section 51 of the Act, primarily by amending the periods after which offenders’ particulars could be removed from the NRSO. The amendments had not been subject to much discussion in public comments or in the Committee. However, he proposed amending the inserted section 51(4) to ensure that all persons who qualified for removal of their particulars before the commencement of the Bill could apply for removal.
Clause 18: Obligation to report commission of sexual offences against children or persons who are mentally disabled
Ms Botha asked if Members were satisfied with the amendments to section 54 of the Act as contained in clause 18 of the Bill. The section dealt with the obligation to report sexual offences against children or persons who were mentally disabled.
Ms Newhoudt-Druchen asked why the term “mentally disabled” still appeared in the section as amended. Was the provision not supposed to refer to all disabled people?
Mr Du Preez replied that the Act as a whole dealt with two broad categories of offences. Apart from offences that could be committed against all persons, there were chapters that dealt specifically with offences that could exclusively be committed against children and people with mental disabilities. Since 2007, those two groups had been “highlighted” as especially vulnerable groups. DoJ&CD wanted to retain the reference to those two groups in section 54, because they were groups who could not always “speak for themselves” or who might be “easily intimidated.” That was why section 54 imposed an obligation with specific reference to those groups.
Ms Newhoudt-Druchen said that she fully understood, but she was asking whether the provision could be changed now to include people with other disabilities. As had been discussed previously in the Committee, it was not only people with mental disabilities who could not “speak out” – some people with other disabilities also could not. Could the references to “mentally disabled” people be replaced with references to “disabled” people?
Mr Du Preez apologised; he had misunderstood Ms Newhoudt-Druchen’s question. DoJ&CD would not object to making that change and would be guided by the Committee.
Adv Breytenbach and Ms Maseko-Jele agreed with Ms Newhoudt-Druchen’s suggestion.
Mr Du Preez asked if the provision should refer to “physical, intellectual or sensory disability,” since that was the term that appeared in the definition of a vulnerable person.
Ms Newhoudt-Druchen agreed.
The Committee adjourned for a five-minute break.
When Members returned, Ms Newhoudt-Druchen said that she had just consulted with the former chairperson of the South African Disability Alliance. He had said that mental disabilities and intellectual disabilities were different, so the provision had to refer to mental disabilities alongside the other disabilities. That is, the provision should refer to persons with a physical, intellectual, mental or sensory disability.
Ms Maseko-Jele said that she would support whatever Ms Newhoudt-Druchen suggested, because she was better informed than other Members about the appropriate terminology.
To clarify, Mr Du Preez said that wherever the Bill referred to disability, it catered for all four categories of disability. In its definition of “person who is vulnerable,” clause 5(c) referred to all four categories, but they were listed across two separate paragraphs – paragraph (a) referred to persons with a mental disability, alongside children, and paragraph (d) referred to persons with a physical, intellectual or sensory disability. They were separated in this way because the existing Act had always included specific reference to persons with a mental disability.
Mr Du Preez said that there were amendments to the long title and to the index, but that there were no other significant amendments to other clauses beyond consequential amendments and amendments that had previously been discussed in the Committee. However, the Chairperson had said that he wanted to return to paragraph (b) of clause 5(c), which referred to females under the age of 25.
The Chairperson clarified that the Committee would return to it, but not in that day’s meeting.
Mr Du Preez apologised for the misunderstanding. In that case, he had concluded the presentation on the first part of the document, and the Committee could turn to the second part of the document.
Transfer of functions to SAPS criminal record centre
Mr Du Preez said that the second part of the document dealt with all the proposed amendments that would have to be effected to chapter 6 of the Act if the Committee decided to close the NRSO. In that case, an obligation would be introduced such that if a person wished to apply for certain kinds of employment, he would have to submit a SAPS clearance certificate to his potential employer. Persons who had been convicted of sexual offences would still be prohibited from working with vulnerable persons. The Committee had discussed the second part of the document on several previous occasions. It would entail extensive amendments to chapter 6 of the Act, and also consequential amendments to the CPA and the SAPS Act. He would be guided by the Chairperson on what aspects of the working document he should present to Members.
Ms Botha raised an issue on which she would appreciate the Committee’s guidance. In regard to the second option, and as mentioned in the previous evening’s meeting by Adv Praise Kambula, it was important to distinguish between a clearance certificate and a clearance report. A police clearance certificate would reflect all offences, not just sexual offences. A police clearance report, in addition to the information reflected on a SAP 69, also indicated any pending charges against the person. That issue had been discussed in the Committee in the past. The problem was whether it was constitutional, given the presumption of innocence, to provide potential employers with information about pending charges.
The Chairperson asked for clarification about the structure of the presentation. In his understanding, the first part of the working document was applicable if the NRSO stayed with DoJ&CD, and the second part was applicable if the NRSO’s functions were transferred to SAPS.
Mr Du Preez replied that that was correct. The first part of the working document, which the Committee had just discussed, extended the NRSO. The second part assumed that the NRSO would cease to exist. The recommendations of the interdepartmental task team, which had been mentioned in the previous night’s meeting and whose report the Committee had received, were reflected in the first part of the working document.
Mr Horn said that, in his understanding, the Committee ultimately had to make the policy choice between keeping the NRSO and abolishing it. If it decided to retain the NRSO, then the second part of the working document became superfluous.
The Chairperson agreed. The Committee’s decision about the NRSO would determine which part of the working document it needed to consider. The two options before the Committee had been briefly discussed at the previous night’s meeting. First, it could retain the NRSO as it was, at DoJ&CD. In favour of this option was the fact that it would retain the functionalities built up by the DoJ&CD and would minimise costs – millions of rands had already been spent on the NRSO. The second option, supported by Adv Breytenbach, was to use police clearance certificates instead, because the SAPS criminal records centre was much more “effective” than the NRSO. The Committee had to discuss the options and settle on one policy choice.
Ms Maseko-Jele said that following the discussion during the previous night’s meeting, she still supported keeping the NRSO at DoJ&CD.
Mr Horn said that he was personally in favour of retaining the NRSO. The criminal records system would still stay operational under that option. South Africa faced “massive problems” with sexual violence, especially against women and children. If the government decided in the future that something like the NRSO was needed, it would be “highly problematic” to re-establish it from scratch.
Mr Swart agreed. At least for now, the current system should stay in place, given budgetary constraints – most departments were facing budget cuts. In addition, the public expected urgent action against gender-based violence, and the transition from the NRSO to SAPS would take time. However, Parliament did need to exercise greater oversight over the efficiency of the NRSO.
The Chairperson said that the Committee agreed that the NRSO should stay at DoJ&CD, which meant that the second part of the working document was irrelevant. He asked Mr Du Preez whether DoJ&CD had received the guidance it needed.
Mr Du Preez replied that he had received the necessary guidance. The second part of the working document would be removed and the DoJ&CD had nothing else to present to the Committee.
The Chairperson asked if it was okay for the Committee to wait until the following week to deal with the outstanding issue – namely, the question of whether females under 25 should be included as vulnerable persons.
Mr Du Preez replied that that was fine. He understood that Members wanted to consider the issue. He had received a lot of guidance from the Committee during the meeting, for which he was grateful.
The Chairperson thanked Mr Du Preez, Ms Botha, Adv Kambula and others at the NRSO, and everyone else who had worked on the Bill. He thanked Members for their dedication and commitment to fighting gender-based violence. The Committee was “on track,” thanks to Members’ hard work and “team spirit,” and had covered a lot of ground on the both bills. The Committee would meet for another full day the following week, but after that it would be ready to vote on both bills. He asked Mr Du Preez to focus only on the unresolved issues in his next presentation to the Committee.
Mr Swart offered his apologies in advance. Although he wanted to participate in the meeting the following week, he had mini-plenaries. He would try to join for as much of the deliberations as he could.
The Chairperson said that the Committee understood but that Mr Swart should try make time to participate when he could, because his input would be appreciated.
The meeting was adjourned.