GBV Bills: deliberations; Committee report on filling SAHRC vacancies
Justice and Correctional Services
28 May 2021
Documents:
Meeting Summary
The Portfolio Committee on Justice and Correctional Services met on a virtual platform for briefings by the Department of Justice and Constitutional Development on three Bills.
In a previous meeting, changes had been made to the Memorandum On the Objects of the Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill. The amended Memorandum was presented. The Committee noted the reference to the new clause 10 in the Bill which granted the National Commissioner of South African Police Service access to the National Register of Sex Offenders. Clause 10 also contained an obligation for the Director-General: Home Affairs to inform the Registrar of the Register of Sex Offenders whenever a person’s change in identity has been formally approved and recognised.
The Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill was presented with amendments as previously requested by the Committee. One of the changes was the replacement of the phrase “children and persons who are vulnerable” with “persons who are vulnerable”. That led to many consequential amendments in the Bill. Another amendment had been to deny members of the public access to the National Register of Sex Offenders. However, the Committee considered allowing anyone who wished to access the Register the right to apply to the Registrar for access. The Registrar would use the criteria of “good cause shown” to determine whether a member of the public had the right to access names on the Register. Following discussion, the amendment was approved. The State Law Advisor returned later in the meeting and presented the amendment in the Bill to the Committee for approval.
The A-list relating to the Amendment Bill was also presented to the Committee. The document showed that where there were extensive amendments, the Committee had rejected the clause and substituted it with an amended clause. Where the amendments were not extensive, sections had been amended. The A-list also indicated where new clauses had been included in the Bill.
The Committee then considered the Domestic Violence Amendment Bill. A new Section 1: Definitions and Interpretation had been incorporated with all the changes, including a definition of a “third party actor” which replaced the term “co-respondent”. Operational issues, such as the issuing of directives by the National Commissioner of Police, were included in the Bill. The Bill determined that protection orders had to be extended in cases where either or both the respondent and the complainant did not appear on the set. The Bill included processes, including referral to a relevant magistrate’s court, where an inquiry showed that a respondent appeared to require treatment for substance abuse. The Committee discussed and approved of the need for a second magistrate to determine whether there was a case of substance abuse. The Committee also discussed why the complainant was liable for the costs relating to electronic material used in a case of cyber abuse and not the respondent. The clause related largely to the need to refund the costs of the electronic service provider that would have provided evidence in the matter but the Committee determined that an addition should be made to the section stating that that if a respondent was found guilty of cyber abuse, consideration could be given to ordering the respondent to bear the costs.
The Committee agreed to meet the following day to pass the two Gender-based violence bills.
The Committee was briefed on a new Criminal Procedure Act Amendment Bill amending section 154(3) of the Criminal Procedure Act to give effect to the judgement made in the case in the Constitutional Court of the Centre for Child Law and Others versus Media Ltd and Others, 2019. The Court had found that the Act protected the identity of child accused and child witnesses but not child victims. Furthermore, the provision did not extend the protection into adulthood for child accused, witnesses and victims. The Bill rectified that unacceptable anomaly. The Committee confirmed that that the Amendment would allow an adult confidentially when he or she brought a case relating to abuse in his or her childhood. In general, child victims could never be identified, even as adults. It was agreed to advertise the Bill for public comment.
Meeting report
Opening remarks
The Chairperson welcomed Members and everyone on the platform.
The Chairperson indicated that he would like to begin with the presentation on the Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill. However, the Department of Justice and Constitutional Development (DoJ&CD) had connectivity problems. While that was being addressed, he turned to the Report on the South African Human Rights Commission (SAHRC) vacancies.
Report of the Portfolio Committee on the appointment of Commissioners to the South African Human Rights Commission (SAHRC)
The Report to the National Assembly had been circulated to Members. The Chairperson stated that he would take the Report as read and requested Members to cite any corrections. There being no corrections, Dr W Newhoudt-Druchen (ANC) moved for the adoption of the report. There was no seconder.
The Chairperson asked whether any Member reserved his or her right to adopt the report.
Adv G Breytenbach (DA) stated that the DA reserved its right.
Mr W Horn (DA) queried the procedure. He suggested that the Chairperson could not move to positions of reservations in the absence of a seconder.
The Chairperson agreed with Mr Horn. He stayed the report in abeyance until the following week as he did not want to run into serious procedural problems.
The Chairperson noted that the State Law Advisor had joined the virtual meeting.
Presentation on the Memorandum On the Objects of the Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill
Memorandum
Mr Henk Du Preez, State Law Advisor, DoJ&CD, requested guidance on the procedure to be followed. He had prepared a working document on the Bill as well as the Memorandum on the Objects of the Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill, 2020 as there had been some changes to the Memorandum. He suggested that he share the changes to the Memorandum.
Neither the Chairperson nor the Members of the Committee objected to his proposal.
Mr Du Preez made his presentation although it was difficult to hear exactly what he was saying at times as his voice became distorted.
Mr Du Preez flighted the document but indicated that he was only going to address amendments that had been made. The majority of amendments were consequential amendments as a result of changes to numbering and so on and were in the paragraphs of point 2. Point 2.8 dealt extensively with the new clause 10 in the Bill which inserted new sections, section 44(b) and 44(C).
“2.8 Clause 10 aims to introduce two new provisions in the principal Act. The proposed new section 44B deals with access to be granted to the National Commissioner of the South African Police Service for the purposes of complying with section 36D(2) of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), and section 15A(2) of the South African Police Service Act, 1995 (Act No. 65 of 1995). The proposed new section 44C will require that the Director-General: Home Affairs must inform the Registrar in writing whenever a person’s change in identity has been formally approved and recognised by the Department of Home Affairs by providing the Registrar with that person’s old and new identity details. The provision further requires that the Registrar must endorse the NRSO accordingly, where necessary.”
The other amendments dealt largely with re-numbering and the majority of the Memorandum was unchanged.
The Committee accepted the Memorandum.
Mr Du Preez presented on the amendments to the Bill.
Long title: Two amendments – one deletion and the word “children” was replaced by the words “persons who are vulnerable”. That replacement became a technical amendment in a number of clauses.
Clause 1: “In relation to the National Sex Offenders Register, the amendment was that such people were prohibited from working with “persons who are vulnerable”, which replaced the term “children and persons who are vulnerable”.
Clause 2: Consequential amendments.
Clause 3: The options selected by the Committee had been included: “(b) sexual violation with each other where one of them is a child and the act of sexual violation was of such a nature that it was reprehensible for the adult person to have acted in that manner under the circumstances concerned,”
Clause 4: The sexual intimidation amendment was included as requested by the Committee:
14A. A person ("A") who unlawfully and intentionally utters or conveys a threat to a complainant ("B") that inspires a reasonable belief of imminent harm in B that a sexual offence will be committed against B, or a third party ("C") who is a member of the family of B or any other person in a close relationship with B, is guilty of the offence of sexual intimidation and may be liable on conviction to the punishment to which a person convicted of actually committing a sexual offence would be liable.”.
Clause 5: Related to the employment of a person who is vulnerable. The phrase “a person who is vulnerable” replaced previous descriptive phrases in the clause.
Clause 6: Consequential amendments. Mr Du Preez found 6(c) to contain a technical mistake - he had not removed the underlining of a phrase, which he committed to correcting.
Clause 7: The clause remained largely the same.
Clause 8: Consequential amendments.
Clause 9: Consequential amendments.
Clause 10: New clause: “Obligations of Director-General: Home Affairs and Registrar. 44C.
(1)The Director-General: Home Affairs must inform the Registrar in writing whenever a person’s change in identity has been formally approved and recognised by the Department of Home Affairs by providing the Registrar with that person’s old and new identity details.
(2) The Registrar must endorse the Register accordingly, where necessary.”.
Clause 11: Consequential amendments.
Clause12: Consequential amendments.
Clause 13: Consequential amendments.
Clause 14: Amendment of section 48 of Act 32 of 2007, as amended by section 6 of Act 5 of 2015. Insertion of (b) and (c): “(b) A person referred to in paragraph (a) who fails to comply with paragraph (a), is guilty of an offence and is liable on conviction to a fine or to imprisonment not exceeding seven years or to both a fine and such imprisonment.
(c) A child who is in the custody and care of a person contemplated in paragraph (a) must, as soon as reasonably possible, be removed from the care of such person in accordance with Chapter 9 of the Children’s Act, 2005 (Act No. 38 of 2005).".
Clause15: Consequential amendments.
Clause16: Consequential amendments.
Clause17: Substituted for section 51 of the principal Act and dealt with the removal of particulars from the Register (NRSO). Amendments had previously been approved by the Committee and increased the period after which a person who had been mentally ill could be removed from the Register after recovery. The period was changed from five years to ten years but the following was inserted in respect of children: “(2B) The periods applicable in subsection (1) should be reduced by half if the person was a child at the time of the commission of the offence.”
Also inserted was (4): “Any person who has qualified for the removal of his or her particulars from the Register before the commencement of the Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Act, 2021, may submit an application to the Registrar in terms of subsection (3)(a) and the Registrar must consider the application as if the Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Act, 2021, had not commenced.".
Clause18: Consequential amendments.
Clause19: This had been discussed by the Committee and the amendments had been effected.
Clause20: Consequential amendments.
Clause 21: Contained the amendment to the long title of the Act by the substitution of the following bullet for the fourth bullet: “creating new statutory offences, for adults, by criminalising the compelling or causing the witnessing of certain sexual conduct and certain parts of the human anatomy, the exposure or display of child pornography, [and] the engaging of sexual services of an adult and sexual intimidation;”.
Clause 22: Amendment to the index of the principal Act.
Clause 23: Short Title: This Act is called the Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Act, 2021, and comes into operation on a date fixed by the President by proclamation in the Gazette.
Ms Ina Botha, Director: Secondary Legislation, DOJ&CD stated that her team had deleted a sub-section in section 42 regarding the names of persons on the National Register of Sex Offenders being made available to the public, as previously requested by the Committee. She wished to confirm that that the deletion of sub-clause 4 was the correct action as she recalled that, at the time, Mr Horn had requested that Option 1 be adopted, i.e. that access was available to the public only by applying to the Registrar. Currently the Act did not make it possible for a person to get access to the names on the Register.
Discussion
The Chairperson requested comment by Members. The revised Bill made no provision for access to names on the Register by the public.
Mr Horn stated that he had asked about the sub-section Option 1 at the time because he had thought that it had been a good suggestion as to how to operationalise access to the Register, in the event that it were not made publicly available. There had to be a procedure for access to the information. Criteria would have to be fixed or the criteria could be simply “good cause shown”. It would be on application only and for “good cause shown”. He understood that it would mean that every application would become an administrative procedure and therefore would be subject to review, but what would happen in the absence of a procedure?
The Chairperson called for the views of other Members. He asked for confirmation that if the clause were included, access could be requested via the Registrar.
Ms Botha confirmed his understanding. The Registrar would have the discretion to disclose information.
The Chairperson asked under what guidance the Registrar would be operating in respect of a disclosure.
Ms Botha explained that no criteria had been laid down for the Registrar to make the decision – it was down to the opinion of the Registrar. She reminded the Committee that the Department was working within the scope of the Promotion of Access to Information Act which allowed for an approach to the Registrar to request access. There were procedures to be followed and if access were not granted, one had the right to request the reasons for not allowing access to the information. It was not as if leaving that provision out left someone without recourse as there were provisions in other legislation. It was the Department’s view that disclosure or non-disclosure would be an administrative action.
The Chairperson asked if Ms Botha had discussed that point with the team.
Ms Botha stated that her team had believed that the Committee wanted to leave out section 4 completely but later they had considered Mr Horn’s consideration of Option 1. The team had also considered the legislation in the light of other applicable legislation because the disclosure or non-disclosure would constitute an administrative action.
Mr Du Preez concurred with Ms Botha. (His explanation was unclear.) He apologised if there had been a misunderstanding.
The Chairperson requested a suggestion from Mr Horn as he was concerned that such a process could lead to a lot of litigation.
Mr Horn stated that his suggestion remained that the original Option 1 should be included. Regarding criteria, the Department had not responded to his suggestion that the phrase “on good cause shown” be utilised, but he believed it would suffice as a criterion for accessing information as a person would be required to substantiate why the person was in need of the information on the Register.
Adv Breytenbach supported Mr Horn’s suggestion.
The Chairperson suggested that if there were no contrary views, once Mr Du Preez had completed his presentation, he should prepare a proposal for an amendment to the clause during the time that the Committee was working on the next Bill. He could bring the proposed amendment later in the meeting.
Mr du Preez stated that he would go away and prepare a proposal for the Committee.
The Chairperson proposed that discussion on the Bill would be held in abeyance until after the discussion on the Domestic Violence Amendment Bill.
The Committee agreed.
Presentation on the Domestic Violence Amendment Bill
Mr Sarel Robbertse, State Law Adviser, DoJ&CD presented the draft Bill to the Committee. He had made the amendments requested by the Committee and had noted on the cover page that it was a re-draft Bill by the Committee. It was a B Bill.
Clause 2
Mr Robbertse explained that he had decided not to make any more amendments to section 1: Definitions and Interpretation because he had made so many changes to section 1 that the number of amended paragraphs exceeded “z”. He had rejected the original section 1 and had substituted a new section 1 in toto, firstly, to provide for third party involvement and because the numbering was simpler. He had kept definitions that the Committee had not changed and made the amendments and additions requested by the Committee in the new section 1.
The first major change referred to the so-called co-respondent. Previously, he had included a definition for a co-respondent but he had changed that to a “third-party actor” who was defined as any person who “is not or has not been in a domestic relationship with the complainant” and who was “used by the respondent to commit an act of domestic violence.” The full definition was included in the Bill in a new subsection. He had also included definitions of medical practitioner, educator and others. Section 1(2)(a), (b), (c) provided for cases where domestic violence involved a third party actor.
The Chairperson requested a focussed discussion on co-respondents or third party actors. The Committee needed to read the new sub-section which was inserted as section 1(2) (a), (b), (c).
Mr Robbertse read out section 1(2)(a), (b) and (c):
(2) (a) This Act does not prevent a complainant from applying for relief in terms of the Protection from Harassment Act, 2011 (Act No. 17 of 2011), where a third party actor committed an act, if committed by a respondent would amount to domestic violence against the complainant, and which constitutes harassment in terms of that Act.
(b) A complainant may simultaneously with an application for protection order in terms of section 4, also apply for the relief referred to in paragraph (a).
(c) A respondent who uses a third party actor to commit an act of domestic violence against a complainant, is for purposes of this Act regarded as to have committed such act of domestic violence, personally."
There were no objections from Members.
Mr Robbertse had used definitions from other legislation to provide a definition for educator, medical practitioner, healthcare worker, social worker, etc.
Clause 4
The criminalisation provision in 3(4) was retained as requested by the Committee.
The two options the Committee had discussed in relation to violence were contained in sections 3(1) and 3(2). Adv Breytenbach had said that there had to be an arrest if there was violence. It was necessary to include the phrase “on reasonable grounds” as that was more demanding than “suspects”.
Clause 7
Clause 7 contained the requirements for Domestic Violence Notices. The Bill allowed for the implementation of one or all of the functions set out in paragraphs 7(a), (b), (c). The court could order a police official to carry out one or more of a range of functions.
A new subsection 12 had been inserted in clause 7: The National Commissioner of the South African Police Service (SAPS) had to consult the Minister of Justice and Constitutional Development before issuing national instructions to facilitate the implementation of that function by SAPS. That provision would also regulate the availability of officials.
(12) The National Commissioner of the South African Police Service in consultation with the Minister must, in terms of section 18(3), issue national instructions as may be necessary for the purpose of giving effect to the provisions of this section by the South African Police Service.”
The Chairperson raised a concern about the Minister acting in consultation with the Commissioner of another Department. A Minister and a Head of Department had to be in the same department or they had to engage with their equivalents.
Mr Robbertse agreed that it was better to change the requirement to consultation with the Minister of Police. However, in consideration of the fact that the Commissioner was responsible for implementation, he suggested that the Commissioner should act in consultation with DG of DoJ&CD.
Mr Horn agreed that it was correct to make the change to the DG of DoJ&CD.
Dr Newhoudt-Druchen concurred.
The Chairperson requested Members to indicate if they had issues with the proposed changes as Mr Robbertse proceeded.
Adv S Swart (ACDP) agreed with the proposed change.
Ms Y Yako (EFF) agreed and thanked the Chairperson for adding that amendment.
Clause 8 (section 5)
Mr Robbertse explained that he had removed the word “immediately” from clause 5(4)(b) as it would be dependent on the processes which would be regulated by the clerk of the court.
Clause 9 (section 6)
There was an amendment related to the provisions if the respondent did not appear in court.
6(2A) in section 5 stated that if the complainant and respondent did not appear on a date set by the court, the court could set a new return date but had to extend the protection order to that date.
The Committee accepted the extension of the Protection Order.
Section 6(2B) dealt with a case where the respondent and complainant did not appear. The court could consider the protection order and court could set new return date or to discharge the matter.
The Amendment was approved by the Committee.
Mr Robbertse explained that in the light of the above amendments, 6(2c) could be removed.
6.3(a) had been amended as per the Committee decision to ensure that complainants or witnesses were not exposed to harm.
Clause 11
Section 7 of the principal Act related to the types of protection orders that a court might make. The current provision in 11(b)4A allowed the court to conduct an enquiry into the respondent in respect of substance abuse in terms of section 35 of the Prevention and Treatment for Substance Abuse Act, 2008 (Act No. 70 of 2008), and commit the respondent to a treatment centre for substance abuse. But if one looked at the provisions of the Prevention and Treatment for Substance Abuse Act, it provided comprehensive procedures to be followed. A person could be committed for up to 12 months.
Mr Robbertse had, consequently, redrafted subsection 4A to include a hearing and the prerequisite consideration had to be given to the matter, following which the respondent could be ordered to appear before a specified magistrate in connection with an enquiry in terms of section 35 of the Prevention and Treatment for Substance Abuse Act. If the person did not appear, the court the respondent had been referred to could issue a warrant of arrest. Certain aspects of the relevant Act had been included in the paragraphs under 4A.
The Chairperson enquired whether Members were satisfied with paragraphs (a) to (d).
Adv Swart stated that Mr Robbertse had done very well with a very complex piece of drafting. He wanted to clarify the sequence of events: One began with the Domestic Violence court which heard evidence but had to refer the matter to another court. Why did the respondent have to be referred to another court? Why could the same court not hold the hearing? It could be an urgent matter.
Mr Robbertse said that certain evidence was essential to referral. If the court had made up its mind that domestic violence had taken place, he questioned whether it was appropriate for the same court to hear the matter in respect of substance abuse, especially considering sections 255 and 296 of the Criminal Procedure Act. Section 255 allowed for the referral of a person to another court in a case of possible substance abuse. Looking at section 255, it was obvious that it had to be another court. Section 296 states that a person convicted of an offence should be referred to another magistrate’s court for the substance abuse enquiry.
The problem was that other documents had to be obtained but the Act allowed the court to submit a record of proceedings to the relevant magistrate. If a court had made up its mind in respect of a respondent that substance abuse might have contributed to the offence, that court should not hear the matter of the substance abuse.
Adv Swart was satisfied with the explanation.
Mr Robbertse added that sections 255 and 295 of the Criminal Procedure Act allowed that a record of proceedings might be made available to the other court and paragraph 4A(e) incorporated that, but there was a restriction on certain information in subsection 5. He considered that a belt and braces provision and asked whether the Committee considered it adequate.
The Chairperson suggested that the Committee might wish to come back to it.
Clause 22
Mr Robbertse stated that the next significant change was in clause 22, section 18(B). Section 2 and the amended section 3 stated that the peace officer and police official had to assist a complainant but a directive had to be issued and section 18B(2)(d) excluded officers other than SAPS officers. Police officials had a function there and then to intervene or arrest someone. It was not adequate for the National Commissioner to give a directive regarding the assistance that had to be given to victims of domestic violence or to the children involved. Section 18A(4) provided for directives to be issued by the Departments of Health, Social Development, Basic Education, Higher Education and Training and Communications and Digital Technologies. The Department of Social Development was particularly relevant in providing care for the victim and for children. He believed that the Department of Social Development, in conjunction with the Department of Health, should issue the necessary directive. The amendment would also refer to peace officers that were not SAPS officials.
The Chairperson asked whether there should be timeframes for the Directives to be issued.
Mr Robbertse stated that he was in favour of timeframes for action by functionaries. He would gladly include that in sections 18A and 18B.
Mr Horn agreed with the incorporation of timeframes.
Dr Newhoudt-Druchen supported the amendment and the timeframes.
Mr Robbertse stated that the bill catered for the Minister of Police to be consulted when directives by the National Commissioner of Police were issued in terms of section 18B(a). He pointed out that certain peace officers were also under the direction of the National Commissioner of Police even though they were not police officers and there were conditions to be met for such appointments. That was why he had included the National Commissioner of Police in that section.
Amendment to Laws
Mr Robbertse referred to the laws that had to be amended or repealed. He had amended section 40(q) of the Criminal Procedure Act. He had not included the obligation that a person “must” be arrested. The Act currently stood at “may” and to change that to “must” would require significant changes to the Criminal Procedures Act. He believed that the Domestic Violence Act provided for conditions where an arrest had to be carried out.
The Chairperson called for comments.
Mr Horn stated that he was happy to use “may” as the obligation was found in another section of the Domestic Violence Act. There were already reservations about a blanket obligation.
Mr Robbertse stated that the Objects Memorandum was almost complete but subject to the Committee’s approval of proposals in the Bill. He was able to finalise the Memorandum at that point.
Mr Robbertse added that a provision in the Bill dealt with the confidentiality of witnesses and other persons appearing at a court proceeding. The court would give direction as to how confidential details of a person should be dealt with.
The Chairperson asked if there were any questions. There being none, he suggested that Mr Robbertse should go back and finalise the section.
The Committee agreed.
That was the conclusion of the amendments but Mr Robbertse returned to those clauses that the Committee had said it wished to return at the end of the presentation. Mr Robbertse pointed to the references to co-respondent/ third party actor in section 1(2).
The Chairperson believed that the issue had been concluded as there had been no objection by Committee Members.
The Committee agreed that it was satisfied with that point.
Mr Robbertse informed the Committee that the Memorandum of Objects could be made available the following morning.
Dr Newhoudt-Druchen asked, regarding point 10a, why the complainant was liable for the costs relating to electronic material. Why was it the complainant and not the respondent?
Mr Robbertse explained that in 10a, the de facto position was that the complainant was liable for the costs, irrespective of whether the complainant was responsible or not. The Bill also provided for the court to enquire about the complainant’s means and that the state could be required to pay for the costs. The court might also decide who should refund the costs and might make an order against any party. So, the court may order the respondent be liable for the costs. He did not think that a cost obligation should be put on the respondent because at that stage of proceedings, there was no evidence that the respondent was responsible for the cyber harassment. He could consider adding that if a court convicted a person, that person could be held liable for costs.
The Chairperson asked for the views of Members.
Dr Newhoudt-Druchen asked why, when the respondent had uploaded something, was the complainant responsible for costs. Why was the complainant liable for something that he or she did not post?
Mr Robbertse explained that the clause related largely to the costs borne by the electronic service provider in providing information to the court that had to be refunded to the service provider. Often the respondent in the case of cyber abuse was unknown, but he could make an addition that if a respondent was found guilty, consideration could be given to ordering the respondent to bear the costs.
The Chairperson was comfortable with that option.
Mr Horn asked whether the last option proposed by Mr Robbertse would be included.
The Chairperson agreed. He asked about the time required for the drafting regulations.
Mr Robbertse suggested that 12 months would be required to draft regulations.
The Committee was satisfied.
Mr Robbertse stated that he could have the Bill and the Memorandum ready for the next day.
The Chairperson asked for confirmation that the Committee agreed to meet the following day.
Mr Dyantyi agreed and suggested that the meeting could start early.
The Chairperson suggested that the Committee would meet at 9am the following day to adopt the report. It was an urgent issue that was long overdue. He thanked Mr Robbertse for his presentation.
Presentation on the Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill
Mr du Preez said that he would pick up on clause 7, the proposed Amendment to section 42. He read clause 7 subsections 4 and 5 and 6.
“(4) Any person may, subject to subsection (5), apply, in the prescribed form, to the Registrar to determine whether the particulars of any person have been included in the Register or not.
(5) The Registrar in considering the application must be satisfied that the—
(a) application is not frivolous or vexatious;
(b) person who has submitted the application has an interest in the disclosure of the information; and
(c) disclosure of the information is in the interest of an identifiable vulnerable person.
(6) Except in so far as it may be necessary for the purposes of this Chapter, any person who wilfully discloses or publishes any information to any other person which he or she has acquired as a result of an application contemplated in subsection (4) or in any other manner, is guilty of an offence and is liable on conviction to a fine or to imprisonment for a period not exceeding three years or to both a fine and such imprisonment.”
He added that the Amendment to the Objects Memorandum had been inserted.
The Chairperson asked Mr Horn for a comment.
Mr Horn supported the proposal by Mr du Preez.
Dr Newhoudt-Druchen agreed with the proposal and thanked Mr du Preez.
Ms Yako agreed with the amendment.
MEMORANDUM ON THE OBJECTS OF THE CRIMINAL LAW (SEXUAL OFFENCES AND RELATED MATTERS) AMENDMENT ACT AMENDMENT BILL, 2020
Mr Du Preez stated that a new paragraph, 2.8, had been inserted:
2.8 Clause 7 of the Bill aims to amend section 42 of the principal Act in order to provide for applications to be submitted to the Registrar of the NRSO by persons who have an interest in the wellbeing of vulnerable persons.
The remaining paragraphs had been renumbered and no further changes had been made to the Memorandum.
Mr Du Preez said that concluded the Bill. He said that the A-list had been completed but it had not been approved.
A-List: Portfolio Committee Amendments to the Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill, 2020
Mr Du Preez explained the methodology he had used in drafting the A-list. Where there were extensive amendments, the document stated that the Committee had rejected the clause and substituted it with an amended clause. Where the amendments were not extensive, the document stated that the Committee had accepted the clause, except for certain words that had been amended. He had also indicated where new clauses had been included in the Bill.
He added that he was aware of one technical error that he would correct.
Mr Du Preez had also included the amendments made by the Committee to the Memorandum on Objects.
The Chairperson asked the Committee for comments.
Mr Horn thanked the Department as the process had progressed well. He believed that it was as far as the Committee could go with the document that day. He requested a copy of the final B-list.
The Chairperson thanked Mr Du Preez and stated that the Committee would go over the final documents in the morning. He appreciated Mr Du Preez’s dedication and hard work. He also appreciated the work of the parliamentary Legal Services.
There was some confusion over whether the Parliamentary Legal Services would be presenting, but the Committee Secretary explained that Legal Services would present the following week.
Presentation on the Criminal Procedure Act Amendment Bill
In providing the background to the Bill, Adv Dingaan Mangena, State Law Adviser, DoJ&CD, stated that the Bill sought to amend section 154(3) of the Criminal Procedure Act to give effect to the judgement in the case in the Constitutional Court of the Centre for Child Law and Others versus Media Ltd and Others 2019 ZACC 46. The Constitutional Court had upheld the decision of the Supreme Court of Appeal and had declared section 154(3) constitutionally invalid for failing to protect the identity of child victims of crime in criminal proceedings and for failing to provide ongoing protection of anonymity to child accused, witnesses and victims.
He informed the Committee that the Constitutional Court had suspended the invalidity for a period of 24 months to afford Parliament an opportunity to remedy the defects that had given rise to the constitutional invalidity. Parliament had until 4 December 2021 to correct the impugned section.
Currently, section 154(3) protected the identity of child accused and child witnesses. Child victims were not covered by the provision. Furthermore, the provision did not extend the protection into adulthood for child accused, witnesses and victims. The section arbitrarily differentiated between classes of children and that breached the right to equality. Child victims were excluded from the right to equality, privacy and dignity and the principle of in the best interest of the child.
Clause 1 in the Bill amended section 154(3) as per the judgement while clause 2 amended the short title and dealt with the commencement of the Bill.
The Chairperson thanked Adv Mangena and called for questions and comments from Committee Members.
Dr Newhoudt-Druchen expected that the identity of all children would have been protected. She asked why child victims had not been covered when the Act was originally drafted. She asked if an offence or crime happened to a person under 18 and they turned 18 during the case, whether that person would continue to be protected. She understood the case of Zephaney (who had been kidnapped as a child), but if a person was raped as a child and the person only revealed that rape when an adult, could those victims remain confidential?
Mr Horn stated that it was once again one of the piecemeal Amendment Bills. He asked the DoJ&CD whether consideration had been given to the court judgement in the National Register of Sex Offenders in which victims’ names were included. Had the Department had considered the implications of that judgement on the Register? Had the Department taken that judgement on how children were to be dealt with in consideration in that Bill, and other Bills?
Adv Mangena lost connectivity.
Ms Theresa Ross, Principal State Law Advisor, DoJ&CD, asked for a repeat of Mr Horn’s question as she had been unable to hear him. Regarding Dr Newhoudt-Druchen’s question of why child victims were originally precluded, she stated that it had originally been a mistake that had persisted. In practice, the court was cleared when an underage person testified, so she could only suggest that it was a mistake or did not seem relevant because it was practice to clear the court in a case relating to under-age children but now greater protection was needed and a child accused and child witnesses as well as child victims should be protected.
Responding to Dr Newhoudt-Druchen who had asked about adults who had a complaint stemming from childhood, Ms Ross confirmed that, because the person would have been under 18 at the time of the offence, that person’s identity would be protected.
Mr Horn asked if the judgement had been appraised in respect of the three pieces of legislation on the table at the time, as well as the Sex Offenders Register. The judgement might have an impact on those Bills.
Ms Ross stated that she understood Mr Horn’s question, but she needed to liaise with the officials responsible and provide a response in next meeting.
The Chairperson agreed to Ms Ross’s proposal.
Dr Newhoudt-Druchen asked what the time framework was for a person above 18 to disclose a crime committed against the person as a child. How long was it before the names of those people could be disclosed? Zephaney had brought the case forward and had written a book, revealing her name, so what was the timeframe?
Ms N Maseko-Jele (ANC) agreed that Ms Ross should come back with the information.
Ms Ross stated that particulars of a person under-age remained confidential unless the court authorised disclosure or unless a person who fully understood the consequences was, in respect of Bill, permitted to disclose his or her name. The name of a child victim, witness or accused might not be disclosed even when that child became an adult.
The Chairperson stated that the Committee would allow for public comment on the Amendment to Criminal Procedures Act but they had to take into account the deadline of 4 December 2021 as given by the Constitutional Court. Did the Committee agree that the Chairperson and secretariat could process the advertisement for public comment so that it could be sent out the following week?
The Committee consented.
Concluding remarks
The Chairperson stated that those comments would be addressed as soon as the Committee returned from recess. The Bill on Cannabis would also be on the agenda after the recess and there might also need to be public hearings on that Bill. He thanked Ms Ross and her team.
The Chairperson requested that Ms Ross provide the Committee with any the Concourt judgements when they were made. He suggested that DoJ&CD provide an update to the Committee every six months, indicating whether there had been any judgements requiring legislative changes. The current Bill had been brought a few months before the deadline, even though the judgement had been issued in 2019.
The Chairperson thanked Members for pushing the Bills and he reminded Members of the meeting the following day to finalise the GBV Bills. He thanked Members of DoJ&CD.
The meeting was adjourned.