Gender-Based Violence Bills: Department response to public submissions
10 November 2020
- Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill: Summary of Submissions & Response by DoJ&CD
- Comments and Responses on the Domestic Violence Amendment Bill
- B20-2020 - Domestic Violence Amendment Bill
- B17-2020 - Criminal and Related Matters Amendment Bill
- B16-2020 - Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill
Chairperson: Mr G Magwanishe (ANC)
In this virtual meeting, the Committee met with the Department of Justice and Constitutional Development to receive its response following a series of public hearings held between 20 October 2020 and 28 October 2020 on the three Gender-Based Violence bills: Domestic Violence Amendment Bill, Criminal and Related Matters Amendment Bill and Criminal Law (Sexual Offences and Related Matters) Amendment Bill.
Concerning the Criminal Law (Sexual Offences and Related Matters Amendment Bill) some of the most notable concerns relate to the National Register for Sex Offenders (NRSO). A number of public organisations concluded that the NRSO is ineffective and that rather, the South African Police Service (SAPS) Criminal Records system should be used as it provides a comprehensive picture of an individual’s full criminal record of crimes committed against children as well as other serious offences. The Department opposed this recommendation because of the implications of providing full access to an individual’s criminal record which could prevent a person from working in any capacity and this then becomes a Labour issue. The Department did not support the recommendation of increasing the channels for reporting sexual offences to include hospitals and clinics because SAPS is the only entity Constitutionally mandated to do so. The Committee asked if the Department believes SAPS, the NRSO and relevant departments have the necessary resources and capacity to implement the Bills effectively.
During the public hearings, a recommendation was made that pronouns like “he or she” be replaced with “he, she, them or they” to ensure that the Act criminalises sexual violence against and by persons of all genders and sexual orientation. Although the Department believes this is unnecessary as the Bill uses gender neutral terms, some MPs suggested the Department engages further with the LGBT+ community to ensure their concerns are fully understood.
A crucial discussion to follow will be the debate on whether or not the Act is applied prospectively or retrospectively. At this stage, the Department is of the view that the majority of the concerns raised will be addressed if the Act is applied prospectively. However, whatever decision is reached will be in the best interest of victims.
During the hearings on the Domestic Violence Amendment Bill, numerous commentaries opposed a clause making it mandatory to report acts of domestic violence. The Department agreed to remove this clause form the Bill where it pertains to adults. Overall, the Committee was unanimously disappointed in the Department’s presentation on this particular Bill. MPs felt the presentation mostly detailed comments and differences between the Department and SAPS instead of the views of ordinary South Africans, as should be the purpose of public hearings. The Department had failed to provide the Committee with substantive options, ultimately leaving MPs with little to deliberate on.
The Committee agreed to resume the following day with the expectation that the Department would return with an improved presentation.
Summary of Submissions and Responses on the Criminal Law (Sexual Offences and Related Matters Amendment Bill)
Mr Henk du Preez, Senior State Law Advisor, DoJ&CD, gave a summary of the submissions previously made by participants during the public hearings. He highlighted that several of the comments received were similar in nature. The presentation was divided into two sections, Table 1 reflects general comments and the DoJ's response, while Table 2 provides a clause by clause summary of the submissions and the DoJ's response. Mr du Preez highlighted the most critical comments and recommendations which arose during the public hearings and detailed the DoJ’s responses.
Highlights from Table 1.
Gender neutral language
Access Chapter 2 recommended that references in the principal Act to “he or she” should be replaced with “he, she, them or they” to ensure that the Act criminalises sexual violence against and by persons of all genders and sexual orientation. A similar recommendation was made by the South African Women in Dialogue (SAWID). The Department concludes that this is not necessary. All the offences within the principal Act are expressed in gender neutral terms and apply to all persons equally, both victims and perpetrators.
Sexual violence against the LGBT+ community
Ms E Ndada recommended that corrective rape and sexual violence against the LGBT+ community should be categorised as hate crimes, this was raised by a number of other commentators. The Department responded that the Prevention and Combating of Hate Crimes and Hate Speech Bill, 2018, addresses all issues relating to hate crimes.
Increased channels to report sexual violence
Several recommendations were made for more channels through which sexual violence can be reported. The ANC Women’s League specifically recommended hospitals and clinics as additional channels in rural areas. The DoJ&CD believes the introduction of multiple channels will only create administrative red tape, confusion and traumatisation of victims. The South African Police Service (SAPS) remains the constitutionally mandated entity to investigate crime.
National Register for Sex Offenders (NRSO) and National Child Protection Register
Several concerns were raised regarding the NRSO. The Children’s Institute expressed that is not an effective tool for screening people and recommends the SAPS criminal record system instead. The Department said extending the prohibition to work with certain persons as a result of having committed any offence is a labour issue, this cannot be addressed in legislation dealing with sexual offences.
Mr du Preez summarised that there are two different views concerning the NRSO and the National Child Protection Register.
(For full summary of submissions see attached documents)
The Committee agreed to pose a first round of questions before proceeding with the rest of the presentation.
The Chairperson assured Members that they should not feel limited when asking clarity seeking questions on either sections of the presentation. These are very extensive Bills which require substantive discussion.
Dr W Newhoudt-Druchen (ANC) asked what the current status of the Hate Crimes Bill is and how it fits in with the three GBV Bills in as far as protecting different vulnerable groups is concerned.
The Chairperson responded that this is in fact a question that should be answered by the Committee as the Hate Crimes Bill is currently before the Committee. Once a judgment is made by the Constitutional Court, the Bill will be processed.
Adv S Swart (ACDP) expressed that the Committee was glad to have Mr du Preez following his recent illness.
He said that a lot of concerns will be addressed once the Committee decides if the application of the legislation will be prospective or retrospective. A number of the organisations concluded that the NRSO is not an effective mechanism for screening people and that the SAPS criminal record system should be used as it provides a comprehensive picture of an individual’s full criminal record of crimes committed against children as well as other serious offences. This is an issue that the Committee needs to unpack as this is an important consideration. Furthermore, the Committee will need to consider the monitoring and accountability of the implementation of the Act, more so following its amendment. The Committee has been concerned about the implementation of the Act.
Mr W Horn (DA) asked the Department to explain its response stating that the broadening of the list of offences may cause an issue of constitutionality if the amended Act is applied retrospectively. If the whole spectrum of offences across all three legislations is included in the Register, will this in itself not pose any Constitutional findings against the legislation?
Ms N Maseko-Jele (ANC) asked if the DoJ&CD has interrogated whether SAPS has the necessary capacity to implement the Bills given the current challenges it is experiencing. This is particularly important because GBV is a national priority and is currently the second pandemic faced by the country following COVID-19. Are we not underplaying the gravity of the matter if the DoJ does not provide additional channels for reporting? Specifically, for rural areas where communities have complained about how far police stations are located.
She further asked how often the Register is updated to make sure that no offenders are missed.
Ms J Mofokeng (ANC) referenced a proposal made by B Memela recommending “medical castration for repeat offenders”. She raised concern about the technicality of the Department’s response- “The most important question to be raised, not unlike the central question that was raised in the death penalty case, is whether castration as punishment will act as an effective deterrent. In addition to the aforementioned it is doubted that the type of punishment will pass Constitutional muster on, among other equality grounds, in view of the traditional perception that only men commit sexual offences”. The DoJ&CD must be simplistic in its responses because these are viewed by the general public who may not have a legal background.
Although she understands the DoJ&CD’s view that all offences in the principal Act are described in gender neutral language, it is important to engage further with the LGBT+ community to better appreciate Access Chapter 2’s recommendation to replace “he or she” pronouns with “he, she, them or they”. The LGBT+ community has a motto stating, “nothing for us without us”. Therefore, the Department should not make any assumptions in its response and should instead engage more.
The ANCWL and COSATU both expressed concern over resources and the capacity of role-player departments to implement the Act effectively. What is the DoJ’s response to these concerns?
The Chairperson echoed Adv Swart’s sentiments on Mr du Preez’s recovery. He welcomed Mr du Preez and encouraged him not to over-exert himself.
Mr du Preez thanked the Committee for the well wishes.
Retrospective application of the Act
Mr du Preez responded that this is an important consideration and that there are many technical aspects which will have to be considered. At this stage, the DoJ&CD is of the view that the majority of the concerns raised will be addressed if the Act is applied prospectively as indicated by most commentators.
Two recommendations were made during the submissions. The first was to combine the NRSO and the National Child Protection Register (NCPR) into one Register. This was previously recommended to the DoJ&CD when the legislation was initially enacted. The DoJ&CD and Department of Social Development have explored the feasibility of merging the two Registers, however, this presents several problems. The NCPR is limited to children while the NRSO is limited to sexual offences but goes further in scope by affording protection to people with mental disabilities. Because the Act is now being amended, the target group for protection will inevitably be extended further. The second consideration argues that the SAPS Criminal Record system would be more effective. An issue of concern when providing full access to an individual’s criminal record is what will be done with this information. Will this be used to prevent a person from working in any capacity? This then becomes a labour issue. The DoJ&CD had a meeting with SAPS on 28 October discussing the option of the Record Centre taking on the function of the Register, however, the focus was primarily on the resources required to make this possible. The general response was that this would be a challenge and huge undertaking to implement because SAPS would have to hire additional personnel, adopt a new system and platforms, and undergo training. The Criminal Record Centre currently processes approximately one million applications for police clearance certificates. Given this, it is reasonable that SAPS would require additional resources and personnel if it were to assume the role of the NRSO. However, this is not to say that it is not possible.
Mr du Preez noted and thanked Ms Mofokeng’s suggestion to use plain language in the DoJ&CD’s responses.
Broadening of sexual offences
Mr du Preez responded that broadening the sexual offences is not the issue because the Register currently reflects individuals who have been convicted of sexual offences against children or persons who are mentally disabled. The amended Act will now include persons who have been convicted of all sexual offences. The major concern is what should be done with this information if it is included in the Register. The concern around Constitutionality is around the implications of applying the legislation retrospectively. If this is done, individuals who were previously convicted of offences in the past will essentially receive a further punishment when included in the Register which will impact their employment.
The Act currently requires that once a person is convicted of an offence, the Magistrate or Judge must make an order to forward this information to the NRSO immediately.
Ms Ntombi Matjila, Registrar: NRSO, DoJ&CD, elaborated that the Register is updated on a daily basis once an order has been received from the Courts. When the Register was initially implemented it was done on a manual basis between 2009 and 2012, however, it is now fully electronic. The NRSO has a bird’s eye view of what occurs in the Courts and is able to flag cases which are pending conclusion. Upon conclusion, these are transferred to the Registrar’s office and once approved, certificates are issued.
Dr Newhoudt-Druchen asked Ms Matjila what she foresees would happen if the NRSO and NCPR systems were merged following recommendations for an integrated system as well as the current challenges with the Register.
Ms Matjila replied that when merging of the Registers was initially considered, the legislation relating to each Register was considered. It was found that the DoJ&CD and DSD implement the Register based on their own individual mandates. The first consideration was to leave both Registers as they are and to create a central hub combining data from both. Another consideration was to leave both Registers as they are. The third consideration was to include all vulnerable persons which are now included in the current dispensation. The NRSO initially experienced many challenges with implementing a new Act, however, over time it has updated the same to meet current needs. A central issue is now the capacitation of the office to accommodate new amendments. HR is currently exploring how this will be done.
The Register was initiated as the cornerstone for managing and monitoring what was a pandemic against children and those with mental disabilities. Merging the Register with the SAPS Criminal Record system will not be helpful because the NRSO is positioned to monitor how well the country is doing in protecting children and those with mental disabilities. It should not be reduced to a tool used to issue out certificates.
The Chairperson requested that Ms Matjila be part of the deliberations going forward as the Bill is processed. The DoJ&CD and NRSO need to find a middle ground that considers the Constitutional imperative and operational efficiencies of an effective register. Together the entities will advise the Committee on the kind of resources that would be required if the role is to be given to NRSO alone.
Ms Mofokeng made a correction that the “nothing for us without us motto” in fact belongs to persons with disabilities. However, she emphasised that more research and engagement need to be done concerning gender pronouns because this is an issue that the LGBTQ+ community feels strongly about.
The Chairperson said the use of non-binary language in legislation is a new standard which has been adopted globally. This has already been done with the Cyber Crimes bill. He agreed with Ms Mofokeng that this is an area that needs further discussion.
The challenges experienced by victims in rural areas who live far from police stations is a matter which the Committee should address internally. However, the Chairperson asked Mr du Preez to indicate his position for the purpose of drafting a point view.
Mr du Preez replied that the wording used in the legislation is very precise. The DoJ&CD has no obvious objections about adding more language to the legislation, however, this is always an issue of word economics. The DoJ&CD finds it better to use gender neutral terms when referring to offenses to ensure they apply to any person. The Department notes Ms Mofokeng’s concern and will discuss internally on how it can improve in this area.
Mr du Preez added that the DoJ&CD is not opposed to increasing channels of reporting in rural areas, however, the principal matter is on how this will be implemented which is of importance to the Committee.
Highlights from Table 2
Separate register for accused
The EFF Free State Legislature staff and several other contributors recommended a separate Register be introduced listing the particulars of persons accused of having committed sexual offences but who have not been convicted. The Department responded that “the presumption of innocent until proven guilty dictates against the proposed amendment and is therefore not supported”.
Casting the net too wide
Mr du Preez said there is a recurring theme in most of the Department’s responses because it is concerned about the knock-on effect of expanding the scope of the persons the Register aims to protect. This is specifically in response to proposals made by the Gauteng Provincial Legislature Multi Party Women’s Caucus and Wise4Africa. Proposals to widen the scope will cast the net too wide and will in all probability not be Constitutionally sound.
The Chairperson said the Department’s response to SAPS’s objection against the inclusion of “sexual violation” is too vague and requires more reworking for better clarity.
Adv Swart interjected and added that perhaps Mr du Preez should refer to the de minimis non curat lex rule which states that the law does not involve itself with trivialities which might be relevant to SAPS’s proposal.
Mr du Preez stated that the DoJ&CD will provide more details in writing concerning this matter.
Definition of “person who is vulnerable”
The proposed new definition of person who is vulnerable names a variety of categories, one of which is a female under the age of 25 years. Several commentators recommended that the definition should include females between the ages 26 and 59 and those above 60 years old. The DoJ&CD’s view is that extending the term will cast the net so far that it will be nearly impossible to implement the provision. Legal Aid South Africa’s view is that the definition is sexist and discriminates against male victims. Other recommendations suggest including all women and persons from the LGBTQ+ community.
Mr du Preez told the Committee that the DoJ&CD has done research which shows that females between the ages 18 and 25 are most affected and vulnerable to sexual offences which is why the definition is as it stands. He is convinced that this definition will still be discussed extensively but warned the Committee of the knock-on effects of extending the definition even further. One being that employers will have to vet even more people.
Mr du Preez highlighted that the Teddy Bear Clinic had provided a written submission recommending that the further amendments of Section 51 should not apply to child abusers. Constitutional Court Judgements have repeatedly indicated that child offenders must be treated differently. The entity recommended that “the time periods applicable in this section should be reduced by half if the person is or was below the age of 18 years at the time of the commission of the offence.”
The DoJ&CD noted this recommendation and is not opposed to the proposal but will be guided by the Committee on how to proceed.
Ms Ina Botha, State Law Advisor, DoJ&CD, highlighted Prof Skelton’s comment relating to Clause 1. Prof Skelton indicated that the Constitutional Court had found that it was unconstitutional to automatically include the particulars of child offenders without giving them an opportunity to make representations, therefore, their details should not be included. The DoJ&CD acknowledges that there are currently names of children in the Register. This will be alleviated if the Act is applied prospectively applied.
(For a full summary of submissions see attached documents)
The Chairperson highlighted that some Members would be participating in other National Assembly matters and would have to leave the meeting early. AdvSwart extended his apologies for this reason.
Mr Horn said he assumes that if the DoJ&CD agrees with the Constitutional Court judgement that automatically including the particulars of child offenders prior to allowing them to make representations is unconstitutional, a provision will be made in the amended Act to regulate this requirement.
He asked if the DoJ&CD should not consider casting the definition of “persons who is vulnerable” in a manner that will not require further amendment in the future. This is important given the current divergence of views on which group should be categorised as vulnerable. With various actions from the government and social changes, certain groups will hopefully no longer be categorised as vulnerable in the future. Should the definition not allow the Minister of Justice in consultation with other Ministers to change who is categorized as vulnerable to accommodate any shifts in the future?
Mr du Preez responded that the Act was amended following the Constitutional Court judgement to introduce a safety mechanism whereby the court must make a finding whether or not the child offender’s details must be included in the Register. Secondly, a child offender is free to approach the Court on application to for the Court to consider removing their particulars from the Register.
Ms Botha responded that Parliament must make the law and the Executive must implement it. By delegating the authority to the Minister to change the definition, even after consultation, one could say you are allowing the Minister to change the Act. Although this allows a degree of flexibility, she expressed concern over the constitutionality of the suggestion.
Dr Newhoudt-Druchen raised concern about the 25-year-old cut off for vulnerable persona as she firmly believes that any woman at any stage of life is vulnerable to abuse. She is concerned that the Act does not cover children with multiple disabilities such as deaf children, blind children and children who attend special needs school. This is an issue which requires further deliberation.
The Chairperson asked which studies the DoJ&CD had done to decide that vulnerable woman fall within the ages of 16-25. Oftentimes, studies are influenced by changing conditions. What if the group of vulnerable persons changes over the next five years, does this mean that the Act will need to be amended again?
Mr du Preez replied that given the manner in which Chapter six of the Act has been drafted, he is certain that no child in South Africa will be left out. However, the Department will be guided by the Committee if it needs to further define children.
He clarified that the DoJ&CD is not saying that women older than 25 are not vulnerable. The general issue with Chapter 6 of the Act is the knock-on effect which is inevitable once one expands definitions. This may create more issues where employment is concerned.
Ms Botha replied that the DoJ&CD had derived part of its definition of vulnerable persons from a study conducted by Statistics South Africa called “Quantitative research findings on rape in South Africa”. The study states that “victims of rape tend to be younger women aged from 16 to 25 years”. She said 16-year-old females are still classified as children. The Department will look if there are more recent studies which indicate any changes as indicated by the Chairperson. The DoJ&CD also consulted with an educational psychologist, whose research shows that the brain is only fully developed to be sensitive of dangerous or vulnerable situations at 25. Additionally, studies in the United States indicate that this age may even be extended to 29. If the Committee would like more expert opinions in this area, it can be arranged.
Summary of Submissions and Responses on the Domestic Violence Amendment Bill
Mr Makubela Mokulubete, State Law Advisor, DoJ&CD, gave a presentation on the Department’s response to public submissions relating to the Domestic Violence Amendment Bill. The Department’s presentation was divided into three parts: (i) proposals the Department intends on incorporating into the Bill, (ii) areas where further guidance is needed from the Committee and (iii) proposals which do not need to be included. However, all of these are subject to feedback from the Committee.
The Committee agreed to pose questions following the presentation of each section.
Highlights of proposals the Department agrees with:
Subjecting children to acts of domestic violence
The Department supports the Legal Resources Centre’s (LRC) comment that “exposing or subjecting children to acts of domestic violence could be interpreted that, if a mother who is living with an abusive partner, allow her child to witness domestic violence against herself, the mother will have committed an act of domestic violence. According to the commentator, the word ‘intentional’ may be used to qualify the overbroad application”. This recommendation will be considered during the revision of the Bill.
The DoJ&CD noted opposition against Clause 3 Section 2(A) which makes it mandatory to report cases of domestic violence. Action Aid South Africa submitted that the World Health Organisation (WHO) does not support mandatory reporting of intimate partner violence by health providers to police. The decision to report intimate partner violence should remain with the victim. The South African Catholic Bishops’ Conference also finds mandatory reporting problematic as it violates people’s dignity and agency. The Department noted comments in this regard and proposes that clauses dealing with mandatory reporting in relation to an adult be removed from the Bill.
The DoJ&CD received several objections from SAPS. SAPS is concerned about various definitions within the Bill, namely: “sexual harassment”, “coercive behaviour”, “elder abuse”, “related persons”, “sexual abuse”, “spiritual abuse”.
Mr Horn said it would be better for the Committee to deal with the proposals the DoJ&CD agrees with once a revised version of the Domestic Violence Amendment Bill has been finalised. However, at face value it appears that the Department has not accepted any of the proposals which have been made. This is concerning at this stage.
Ms Mofokeng agreed with Mr Horn and expressed that she is unhappy with the way the presentation was given and the delay caused by the Department due to connectivity issues. Additionally, the DoJ&CD failed to highlight key inputs made by smaller organisations and did not present the submissions in a chronological order as they appear in the document. This derailed the proceedings.
In their submission, Access Chapter 2 raised concern that the Bills refer to vulnerable groups but do not provide for survivors of sexual violence. The DoJ&CD had responded that “not all survivors of sexual offences would be considered part of a vulnerable group”. She asked the Department to clarify this response. She requested that the Committee pay attention to comments relating to mandatory reporting.
Mr Mokulubete apologised for the delay in starting the presentation. The reason he had not followed the chronological order of the comments as they appear in the document was so he could address the comments the DoJ&CD agreed with before proceeding to the areas that require the guidance of the Committee and those the Department does not support. He hopes this clarifies the way that the presentation was given.
Ms Mofokeng requested that the DoJ&CD should instead highlight the submissions they agree with so that Members can follow the order of the presentation. During the presentation, none of the comments were marked.
The Chairperson urged Mr Mokulebete to pick up the speed of his presentation given time constraints.
Highlights of proposals the DoJ&CD requires guidance on:
Inclusion of education expenses
Yvonne Wakefield: The Warrior project recommended inserting “education expenses” between “including” and “household expenses” in Section 1(j)(a) of the Bill. The DoJ&CD responded that education expenses would be covered under “economic or financial resources to which a complainant or related person is entitled under law”. Consideration will be given to the inclusion of education expenses. However, the Department seeks further direction from the Committee in this matter.
The LRC opposes the current definition for “sexual abuse” and provided a proposal for its expansion. The DoJ&CD explained that it was unable to accept the proposed definition which is why it seeks the input of the Committee.
SAPS submitted that the current definition of “sexual harassment” has far-reaching implications as it expands the ambit of the Act beyond persons in a domestic relationship to include “related persons”. The DoJ&CD’s view is that the inclusion of “related person” seems misplaced and should be removed and requires input from the Committee. SAPs raised several concerns about the obligations of functionaries relating to domestic violence. SAPS also commented that it is unclear what is expected of a police officer where a report is received of conduct that does not amount to a criminal offence and where the victim does not want to report the matter to the police. The Service listed several inherent risks in this regard. DoJ&CD noted the concerns and will revisit the related clause to remove mandatory reporting in respect of adults. Additionally, SAPS raised concern regarding the application and issuing of interim protection orders.
Again, the Chairperson urged Mr Mokulebete to pick up the speed of his presentation given time constraints.
Highlights of proposals the DoJ&CD does not support
Mr Mokulebete said the DoJ&CD has provided extensive responses to commentators whose recommendations it did not agree with.
Access Chapter 2 stated a need to address conversion therapy and to have specific laws dealing with acts that can be characterised as reparative therapy as part of new criminal offences. The Department’s view is that the Bill does not speak to what is commonly understood as conversion therapy. Behaviour therapy is included by way of section 7(4A) whereby the court may conduct an enquiry in terms of the Prevention and Treatment for Substance Abuse Act and commit the respondent to a treatment centre for substance abuse and may include referral for anger management etc. The aim is not to link this to a crime.
Bills shift blame on men
Charles Sterzel commented that all three Bills are an attempt to place the blame on men, and they do not consider that in most cases it is the women who are instigators and creators of the situations that lead to the violence against them. The DoJ&CD reported that it does not support this submission as the Bills are gender neutral and applicable to all perpetrators irrespective of gender. It is however common cause that the majority of victims of domestic violence are women and the majority of perpetrators are men.
Definition of domestic violence
The DoJ&CD opposes the proposal to broaden the definition of domestic violence to include “ukuthwala”-the abduction of women and girls with the intention of forcing them into marriage. This is already catered for and any conduct associated with assault, abduction and kidnapping is per se a criminal offence.
The Chairperson said while preparing for the second administration in 1997, the decision was made to adopt the British system of Cabinet clusters in order to improve government’s efficiency and coordination across departments and ministries. It is unacceptable that over 50% of the presentation has been submissions and comments between the DoJ&CD and SAPS. These entities have internal structures with senior management, Ministers and Deputy-Ministers through which any opposing matters should have been addressed prior to presenting the Bill to Cabinet. The purpose of public hearings is to allow ordinary South Africans who do not have the opportunity to sit in Cabinet a chance to present their views. Public hearings are not an avenue for Departments to express their differences. It is not the job of Parliament to go through clause-by-clause differences between Departments within the same cluster.
The Chairperson was vehement that this will not be accepted. If departments continue to use public hearings as an opportunity to address differences, the Bill will be referred back as this is an indication that Cabinet was not ready to present the Bill to Parliament.
Mr Horn said unlike the previous presentation on the Criminal Law (Sexual Offences and Related Matters Amendment Bill, this presentation does not give the Committee a clear sense of what the DoJ&CD expects MPs to deliberate on. The majority of the Department’s responses to submissions made by commentators is that these will be considered when the Amendment Bill is revised. This statement in itself indicates that a lot of work is yet to be done and is very helpful to the Committee. The Department has failed to advise the Committee on the available options on how to address the proposals received, this has made the deliberations difficult and will ultimately prolong the process. The Committee will only be in a position to deliberate once the DoJ&CD has indicated which proposals it considers should be included or omitted. Unfortunately, the presentation has not been very helpful.
Ms Mofokeng echoed the Chairperson and Mr Horn’s disapproval of how the Department has conducted the presentation. The engagement has been fruitless. On the issue of education expenses, she said one can give children money to go to school, however, they may not have food and other necessities at home. Economic abuse is currently included in the current Domestic Violence Act but most Magistrates have never presented an order relating to this issue, these are always referred to the Maintenance Court.
She queried why SAPS had proposed the substitution of National Commissioner with “the relevant station commander” in one of its comments. There is no reason for this and it serves as an example of how the DoJ&CD and SAPS have used the public hearings as an opportunity to present their differences. The Committee will look at what the contributions of ordinary South Africans and communities are and take these matters forward.
The Chairperson agreed with Mr Horn that the Department needs to provide clear options and not reduce MPs to drafters. This would be a reversal of roles. He recommended that the DoJ&CD reworks its presentation and provides options in the areas where there are fundamental differences. The presentation currently is not to the level that allows the Committee to deliberate adequately. The Committee is under immense pressure to deliberate on the three Bills and expects a degree of technical assistance and guidance from the DoJ&CD. He hoped Ms Kalay Pillay, Acting Director-General, DoJ&CD, will guide the Department in improving the presentation so they can return to present again.
Ms Pillay apologised sincerely for the quality of the presentation. She admitted that the DoJ&CD had rushed through the process with insufficient consultations when the Bills were introduced during the State of Emergency. The urgency to get the Bills through Parliament has been one of the main problems impacting the quality.
The Chairperson responded that urgency needs to be balanced with quality. If there are any issues with the Bill, it will be Parliament that answers to the courts and the South African people. He urged the DoJ&CD to come back with an improved presentation.
The Committee was scheduled to receive another presentation from the DoJ&CD on the Criminal and Related Matters Bill. However due to time constraints and the House sitting, MPs would not have been able to engage sufficiently with the Bill.
Ms Mofokeng suggested that MPs adjourn to attend the House sitting and return at 18:00 to hear the presentation.
Mr Horn replied that he did not object to this suggestion, however, the DoJ&CD had only provided the Committee with the final Bill during the meeting. He expressed disappointment that MPs had not been given an opportunity to peruse the Bill beforehand. If the Committee was to return at 18:00, significant time would have to be dedicated to firstly acquainting themselves with the content.
Dr Newhoudt-Druchen suggested that the Committee adjourn and resume presentations earlier than scheduled the following day.
Ms Maseko-Jele urged the DoJ&CD to elaborate sufficiently on the responses it has given
The Committee agreed to resume the following day with the expectation that the DoJ&CD returns with an improved presentation.
The meeting was adjourned.