Gender-Based Violence Bills: Department response to public submissions; with Deputy Minister
13 November 2020
- 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
The Office of the Chief State Law Adviser (Department of Justice and Constitutional Development) presented a working-document on the Criminal Law (Sexual Offences and Related Matters) Amendment Act, Amendment Bill [B16-2020] to the Committee. The Committee took a brainstorming approach to considering the various proposed sections of the Bill.
A number of issues were raised relating to the National Register of Sex Offenders (NRSO), such as whether it should be made publicly available on a website or whether information should be made available on an application basis. The Committee asked whether it was necessary to filter criminal records to only reflect sexual offences, given that in most cases employers or other interested parties would want a full criminal record. The Committee requested further information on whether the South African Police Services should be requested to filter a criminal record to reflect only sexual offences. Issues relating to identity fraud and the implications of victims or perpetrators changing their personal details, such as name or sex, were discussed.
Members discussed how to define acts of incest and the potential impacts of including certain acts. A ‘reasonable child test’ was proposed as a consideration in terms of determining whether a child’s sexual integrity was affected, particularly in cases of incest. Members asked why the provision that dealt with exposure was limited to ‘child pornography’ and not a wider spectrum of pornographic material.
The definition of who should be considered ‘vulnerable persons’ was extensively discussed. An unintended consequence might be that employers would be reluctant to employ those defined as a ‘vulnerable person’ as it involved additional vetting of employees as well as expense. The classification and inclusion of different types of disabilities, such as intellectual, physical and sensory disabilities was noted.
The Office of the Chief State Law Adviser also discussed amendments proposed in the Criminal and Related Matters Amendment Bill [B17-2020]. The presentation was structured in the format of an ‘A-List’ and the Committee said that it was difficult for them to engage with the issues and Bill in this format, however they appreciated the speed at which the Department had worked. An extensive discussion took place regarding the implications and purposes of bail generally and specifically in relation to persons who had a protection order issued against them. The balancing of rights and the constitutionality of bail was discussed in relation to domestic violence. Members agreed to give further consideration to the issues of bail, making the register for sexual offences public and the issue of parole.
Ms Kalayvani Pillay, Acting Director-General (DG), Department of Justice and Constitutional Development (DoJ&CD), asked to be excused from the meeting as she was required in a meeting with National Treasury and the Financial Intelligence Centre (FIC), which had been postponed on numerous occasions. She had designated a colleague to represent her in the Portfolio Committee meeting.
The Chairperson noted that Mr John Jeffery, Deputy Minister of Justice and Constitutional Development, was present. He then requested that Mr Sarel Robbertse, Senior State Law Advisor, DoJ&CD, present.
Mr Robbertse stated that Mr Henk Du Preez, State Law Adviser, DoJ&CD, would be presenting first.
Criminal Law (Sexual Offences and Related Matters) Amendment Act, Amendment Bill [B16-2020]
Mr du Preez first presented the functions relating to the National Register for Sex Offenders (NRSO) and the transfer to South African Police Services (SAPS) Criminal Records Centre (CRC).
Section 40 defines certain terms for purposes of Chapter 6
The heading of the chapter should read ‘the prohibition in respect of persons with previous convictions for sexual offences.’ Two definitions would be deleted, the definition of ‘register’ and Registrar.’ The first definition that would need to be inserted in section 40, would be ‘clearance certificate’. In terms of the clearance certificate, they would have to refer to SAPS for a clearance certificate indicating whether a person was convicted of a sexual offence or not. A criminal record included all the offences that one was convicted of. If one had to filter that, and only reflect previous convictions for sexual offences, then, as SAPS indicated to the Committee the day before, they would be required to build that filter into their system. That would require IT resources and financial resources.
Section 41, the prohibition on certain type of employment by certain persons who have committed sexual offences
This section dealt with the prohibition of different types of employment. This was at present restricted to a conviction of a sexual offence. He stated that many of the commentators had expressed that a person’s complete criminal record should be divulged to a potential employer. Those were the existing amendments that they copied there, because of the ambit of those provisions, which would not be limited to [sexual offences against] children and persons who are mentally disabled [but would include convictions for all sexual offences].
Section 42, the establishment of the NRSO and the designation of a Registrar for the NRSO
There were a number of provisions that would be deleted. For example, section 42, dealing with the establishment of the National Register for Sex Offenders (NRSO), would be deleted. In as far as the objects of the register were concerned, it would be amended to indicate the objects of the chapter. They proposed amendments to inform employers, licensing authorities and relevant authorities of persons who have previous convictions of sexual offences.
Section 44, persons entitled to apply for a certificate from the Registrar
They would remove the obligation on the employer to apply for the clearance certificate. The obligation would be transferred to the employee, a person who wants to apply for a license, or a person who wants to become a foster parent. The reason why they proposed that the employer’s role should be omitted from the chapter in the future was because if one applied for a clearance certificate, the CRC used fingerprints as the only reliable form of identification. In other words, they could place the obligation on the employer to apply for the certificate, as there were costs involved, in the region of R150.00 to get a clearance certificate but the employee would still need to appear to have their fingerprints taken.
There must be a transitional provision that would provide that the Registrar must forward the data in their custody to the National Commissioner of the Police Service, so that it could form part of the information that they had and they could do the necessary cross-checks.
Section 53, regulations pertaining to the NRSO
This section dealt with the regulations pertaining to the register which would be omitted from Chapter 6.
Section 271B of the Criminal Procedure Act
The other provisions that refer to the National Register for Sex Offenders, for example Section 271B of the Criminal Procedures Act, which dealt with the expungement of Criminal Records. There was reference made to the National Register for Sex Offenders which would have to be omitted.
Section 15A of South African Police Services Act
This also refers to the National Register for Sex Offenders would also have to be amended.
Section 36B of the Criminal Procedure Act
Mr du Preez that he was speaking under correction, but section 36B of the Criminal Procedure Act would also need to be amended. It was just a question of trawling through the Act, to ensure that all cross-references to the NRSO were corrected.
The Chairperson requested more detail regarding the discussion with SAPS pertaining to the resources and the technical and ICT changes that would be required. If they do not know how much would be required and the extent of the ICT changes, how would they know how long the process would take. He stated that they might land up giving a blank check to something that would take forever to be implemented. He requested further elaboration and certainty from both the Department and SAPS. They did not want to legislate something that would not be funded or something that would require a lot additional capacity.
Mr W Horn (DA) asked a question relating to the wording ‘sexual integrity,’ which he thought was an attempt to ‘tighten up’ the definitions. Is this a new definition? Is this in line with definitions elsewhere in our legislation? If not, is the Department satisfied that that will be good enough, to deal with all the situations contemplated in the previous version of the definition? In relation to the definition of ‘vulnerable groups,’ there was still the ‘conundrum’ relating to the females under the age of 25 years. The previous time there was an undertaking that there needed to be a rationale or scientific grounding for that proposal. Has the Department considered including members of the Lesbian, Gay, Bisexual, Transgender and Intersex plus (LGBTQI+) community in the definition of the ‘vulnerable groups’?
The Deputy Minister stated that he was not entirely briefed on all the discussions, he had some briefings from the officials, he was aware of the meeting with the Police yesterday in relation to the issue of the IT. Currently most employers want to know if a person has a criminal record, it does not matter what kind of record it was. He was not sure why, obviously in the Bill or the Act, there would be a restriction on employing somebody who had committed a sexual offence. Why was it necessary just to get that record and not any criminal record the person has? He stated that most employers ask for that, and they do not want to employ someone with a criminal record, but they can, they were not restricted from doing so. It may not be necessary to have software that filters records. He was not sure whether the Committee had looked at that.
Mr du Preez responded that he would like to let the questions raised by Mr Horn stand down, he had noted them but as they started at page 19, they had not looked at the first part of the document yet. He would respond to them later in the morning.
Mr Horn interjected and apologised for raising the question relating to the first part of the document, he had been disconnected and when he reconnected he assumed that that section had been covered. He accepted that these questions would be addressed later in the meeting.
Mr du Preez said that the only reason why they restricted the certificate to the requirement that it should only reflect sexual offences was that they thought that that would be a starting point for the whole discussion. The ambit of the principal act was limited to sexual offences. If the requirement was that one divulged one’s complete criminal record to potential employers, he wondered whether the Sexual Offences Act was the appropriate vehicle to achieve that. With regard to the question raised by the Chairperson relating to the resources required by SAPS, he handed over to Ms Ina Botha to respond, as she had been in attendance at the meeting with SAPS the day before.
Ms Ina Botha, Principal State Law Advisor, DOJ&CD, stated that they had a follow-up meeting with SAPS, specifically the CRC as it appeared previously that they perceived a lot of problems. How SAPS explained it to them was that, if the Committee felt that all the offences of a person must be made available, there was no problem whatsoever in doing so, their system was already in place. The problem was that their system did not allow them to filter and look for certain offences, such as proof from the Registrar relating to sexual offences. There were a lot of technical matters they discussed with SAPS; they also discussed the ‘readiness’ of SAPS. SAPS stated that they received about one million applications for clearance certificates. They tried to ascertain from SAPS what the timeframe would be and the resources required, if this function was transferred to them. Ms Botha suggested that SAPS present directly to the Committee as to what that would entail as it included a number of technical matters, and she did not want to give the Committee inaccurate information. It was the Committee’s decision whether they would like to receive a presentation and ask these questions directly to SAPS. In short, their capabilities and timeframes were discussed extensively the day before.
She referred to the last meeting, when she was asked by the Committee to obtain further statistics relating to the under 25 years age group. She suggested that she would provide this information to Committee when Mr du Preez covered the section about vulnerable people. Regarding the issue about research, as far as the development of the brain was concerned, she contacted Dr van der Wald, an education psychologist, who referred to research that she had come across. Dr van der Wald was out of town at the time of the meeting, but she would be back over the weekend, when she would have access to the internet, and she would get that information from her and provide it to the Committee.
Adv G Breytenbach (DA) queried what she was missing in the discussion regarding criminal records. Why would we want it filtered? If someone wanted to apply for a job, and they must disclose a criminal record, they must disclose their entire criminal record and failure to do so, would be fraud. There could be no possible good reason for wanting to filter a criminal record. You cannot hide it away. She stated that she could see no ‘earthly’ reason why one would want to filter a criminal record, unless she was missing something in the discussion.
The Chairperson stated that they cannot have a situation where you would apply for a criminal record and then separately you would apply for sexual related criminal offences. It makes this thing extremely cumbersome. This was something they needed to respond to. Why do you not have a consolidated list? If one had one criminal record that covered everything, whether it is fraud or rape or murder, it would give a complete picture of the character of a person. The employer would be in a better position to look at that person’s suitability for a job. He stated that they should also move away from what they were trying to do with the cannabis, where there were a lot of silo interventions. They must try to be holistic in their approach.
Dr W Newhoudt-Druchen (ANC) requested clarity, when an employer applies to do a criminal check, the certificate given, ‘Does it list all the crimes?’ For example, if she had a crèche for children, or children with disabilities, she would look for specific people, or specific crimes. She would check whether a person had committed a sexual offence or not but if she was the employer of a restaurant and she employed adults, she might not look for sexual offences necessarily, but she would check whether they committed a financial crime. She requested clarity whether the certificate given lists all the crimes or not. Does the certificate just say yes this person did a crime, or something like that? She would support what Adv Breytenbach had said. Why do we need to filter it? Why can’t we have all the crimes?
Ms J Mofokeng (ANC) wanted to know whether they could have a method of consolidating the records. She stated that she was largely covered by the questions posed previously. She wanted to know when SAPS would brief the Committee, as they had a number of questions that they wanted to ask SAPS.
The Chairperson stated that what they might need to do as a Committee would be to set a date to call on the SAPS and all other outstanding briefings that they wanted, including the Department of Communications. This was a program issue, they need to call them back as soon as possible, so that by the time the Bills were passed they were clearer on the role of each stakeholder. At some point they would need to do a program review as a Committee, to decide how and when they could accommodate the SAPS and other stakeholders.
Ms Botha stated that SAPS had indicated that when the Committee was ready and invited them, they would come and they would be ready to tell the Committee what exactly the implications would be. She responded to the question relating to the need to split the criminal record. It depended upon the decision taken, what the implication would be on the Police. If she applied today to the Police for a clearance certificate, she could go to any police station, they would take her fingerprints and they would send it to the CRC, who would do the check. If you ask for a clearance certificate, it lists all the offences that a person was convicted of. If this was the way the Committee was leaning, the Police would not have a problem with IT systems, because they already have it in place. Their problem at present related to resources, they were already overloaded with one million applications for clearance certificates every year. They do not know, depending on what decision was made by the Committee, how it would affect their readiness as well. The reason why they mentioned ‘the split’ in the sense of only sexual offences, was if you look at the Sexual Offences Act, the emphasis was on sexual offences, that was how the Act reads at present. Many of the commentators echoed what was raised by the Committee, in that one needed the entire record to assess suitability. From a constitutional point of view, there cannot be a problem relating to making the whole record available. As it stands now, they only asked for the register to focus on sexual offences. Presently the certificate issued by the Registrar was free of charge. You were charged about R150.00 for a clearance certificate if you approached the CRC.
Dr Newhoudt-Druchen stated that, now that she had a better understanding, she was worried. If they look at the number of cases that were withdrawn, there were 9 000 cases, but very few convictions. She clearly understood why it would be important to separate the two because sexual offenders get away with it, sexual offences were not necessarily convicted, people can travel around in provinces but there was no conviction, and their name would not be on the register, so they do the crimes elsewhere as well. Those on the register were only those who were convicted by courts and go to jail. What about the thousands that get away with it?
The Chairperson stated that it was a difficult issue to legislate for people who were not convicted. If there were presumptions of innocence, they would run into serious constitutional problems. He acknowledged that they were brainstorming, so they would not discard anything at present. They would refine their thoughts as they proceeded with the processing of the Bill.
The Deputy Minister echoed what was said by the Chairperson. In the current situation, the people who were on the NRSO were people who were convicted. They do not have to have gone to prison, the requirement was that they were convicted. The only people on the CRC were people who had been convicted. The people that Dr Newhoudt-Druchen was concerned about were not on any register at the moment, in fact all the people on the NRSO were already on the CRC Register. Constitutionally, people were innocent until proven guilty. You cannot have a register of people who were charged or suspected. He did not think any country had that.
Mr S Swart (ACDP) stated that he was covered by what was said by the Deputy Minister.
Mr du Preez continued and referred back to the first part of the document. This part reflected the discussions and some of the options raised in the previous committee meeting.
Section 12, incest
With regard to the provisions dealing with incest, he stated that they would recall that SAPS had raised the concern that the wrong people may be convicted in terms of the addition of paragraph (d) which dealt with sexual violation, and included acts such as ‘kissing’. What the Department proposed for the Committee to consider, was the addition of the words the act of ‘sexual violation’ was committed in such a manner that it violated or offended the sexual integrity of that child, in order to clarify the type of act that would qualify as a transgression of section 12. As to where they find the reference to ‘sexual integrity’ in any other piece of legislation, the definition of ‘child pornography’ in the principal act, used those precise words. It might be in a different context, but they thought that the words would define paragraph (b) in terms of sexual violation, better.
The Deputy Minister interrupted, he stated the problem was the speed they were moving at, he noted that it was because of the pressure of time. This was discussed with him previously in that there were concerns that parents touch their children, they kiss their children, but so do people committing incest. The proposal was to some extent, that it was inappropriate and the definition of sexual violation was quite broad. The suggestion he had made previously was that it needed to be a ‘reasonable child test’, rather than the individual and he was not sure whether that was shown there. That child could say that ‘my uncle rubbing my breasts was not offending their sexual integrity or dignity’ – but they have been groomed. So one actually wanted it as a reasonable child, an objective test, as a ‘normal’ child would not want their breasts touched like that. He noted that he and the Department should be on the same page about this, and apologised, but due to the speed in which they were moving he had been unable to be entirely on board.
The Chairperson stated that, as they were going through the document they would allow for a lot of brainstorming to express their views on each clause, so that they would start making decisions. He asked for Mr du Preez to respond.
Mr du Preez stated that they could look at trying to include a ‘reasonable child test’ however, the concern was that in paragraph (b), one can think of many examples that would qualify as incest, an act of sexual violation. He was concerned that they had moved into the territory of section 16, which dealt with statutory sexual assault of children, that was also a consent-based provision, to the extent that the consent of children to perform certain acts with adults was irrelevant for purposes of criminal liability. He stated that they were under a lot of pressure in terms of time constraints.
Mr Swart stated that he was going to raise the legal principle ‘de minimis non curat lex’ (the law does not concern itself with trifles); the Deputy Minister was with them when they drafted this legislation. Are we not trying to overkill? Are SAPS’ concerns well founded? He was not sure they were but if there was any doubt, he would rather err on the side protecting vulnerable children. If they were going to amend it, which he did not necessarily think was necessary, then they would need to look at what the Deputy Minister had said, as he was part of the drafting way back then. Having been part of that drafting process, he did not see the need arising. Has this need arisen since they drafted the initial Bill?
The Chairperson asked whether Mr Swart was happy with the way (b) was currently drafted? [In Clause 3 of Bill B16—2020]
Mr Swart responded that was not correct, he stated that he would tend to agree with what the Deputy Minister had said, if they were going to go this route, they were going to have to have a ‘reasonable child test.’ At the moment it could be seen as subjective and then a child that was being groomed would say that they did not have a problem with what happened. That was what made it more and more complicated. He did think that the Deputy Minister and the Department could come with a different option, if they were going to go to this route. He did not have a fundamental challenge to it, he was not sure whether they actually needed it.
Adv Breytenbach stated that they were over thinking this and having heard Mr du Preez state that they were under a lot of pressure in terms of time constraints, she reiterated that this was very important legislation, he should have enough time, and the Committee should give him enough time to properly apply his mind to the research that was required for this. These matters were particularly difficult to prosecute. Children made particularly difficult witnesses for a variety of reasons. She was not sure what ‘reasonable child test’ would deliver; she would be interested to see how it would be framed. Children vary wildly in their maturity, in their development. A reasonable child test was going to be exceptionally difficult to develop. Were they really going to base prosecution on whether a child has the view that their sexual integrity was violated? She was not sure whether this was sufficiently reliable barometer, given the wide spectrum of ways that children could be influenced: promises could be made to them, they could be groomed, fear of an adult, affection for an adult, there were so many things that have to be considered in these instances. Adults were perfectly capable of determining whether an act that had been committed had violated their sexual integrity or dignity. She was not sure there was a decision that should be made on how the child felt about it. If one of the parties in this relationship was an adult, then the measure must be of the adult and not what the child thinks. That would be an unbelievable thing to pin down. Mr du Preez had an unenviable task and they must give him enough time to do it.
The Deputy Minister highlighted that Mr Swart had made a valuable point in that the provision was already there in the Act. They had a lot of concern around whether ‘kissing’ was going to be criminalised. It was good, with the benefit of hindsight, that that had not become a factor of the Sexual Offences Act, Maybe Mr Swart was correct in saying that they did not need to change anything. They also need to check with the National Prosecuting Authority (NPA) as they were the ones that would need to prosecute. They did often have a problem with ‘broken’ relationships, where the mother would accuse the father of sexually abusing the child. He does not know whether those cases have ever really gone anywhere. They would need to do more work on this and come back to the Committee.
Mr Horn noted that the words had already been deleted on the document shown on screen, he did not necessarily want to advocate for them but the ‘violation of dignity,’ could be argued that it was subjective in nature. The violation of integrity was more objective in nature and that would depend on the morals of society. He was fully in agreement that the Department and Mr du Preez should have enough time to look at it properly, so that they do not finalise it in haste and as a consequence did not perform their duties properly. He felt that the objectivity, the so called ‘reasonable child’ to an extent was already covered by the whole reference to the ‘sexual integrity’ of the child.
The Chairperson stated that the Department would be given time, they would continue the following week with the processing of the Bill. From the way he understood the discussions, they would have option A and B. Option A would be the Bill as it stands and option B would be what the Deputy Minister had initially raised, which included the reasonable [child] test. Then they would be able to apply themselves as a Committee to both views. He did feel that they had established initial views on this item as a Committee, and he hoped the Department got a sense of the views of the Committee. He requested that they develop the appropriate options.
Ms Breytenbach stated that with regard to the ‘de minimis’ provision raised by Mr Swart, he was correct, that the law did not concern itself with trivialities and a father kissing his daughter in a normal fatherly affectionate fashion, should not be something covered by this legislation. If the provision stands, it would mean that such a father could be notionally arrested. At some point a prosecutor would decide that it was ‘de minimis’ and the matter would be withdrawn and never be placed on a roll. It would however mean that the family had suffered that trauma and everybody knew that once you have been accused of molesting a child, whether the matter was placed on a roll, whether it never goes any further, whether it gets withdrawn or whether you were acquitted, you could never wash that off you, it stays with you forever. They needed to make sure that when they pass legislation, they were very careful to not include something that could happen to that effect.
The Chairperson said that they should also bear in mind that the environment of sexual abuse was a very emotive environment. They should be very cautious about how they write the Bills because each and every clause might be stretched to its limit and be abused. They must try and avoid a situation where a clause could be abused, especially in cases of domestic violence, where children could be used by one party against another. He requested that Mr du Preez take note of these points.
Mr X Nqola (ANC) stated that he was covered by Mr Horn regarding the vulnerable groups. He also wanted to bring up the issue about the NRSO - that the Act seemed to be regulating how the National Commissioner of Police accessed the NRSO and how employers must access that national register, for them to have the knowledge that the employee was not part of the register. Was that register not supposed to be published? It said that it was supposed to be public information per what was said in the President’s last State of the Nation Address. He was not sure if this issue had been addressed as he had lost connection.
The Chairperson said that the last part of the question was something that was not previously covered, the register being made public. He asked that they debate this when they have a second round, as it would be more of a policy issue.
Part 5, Sexual intimidation [Clause 4 of Bill B16—2020]
Mr du Preez said that on the offence of sexual intimidation, the proposed amendments were in Clause 4 The question was previously raised, where an indirect threat should be a requirement of the offence. The Department conceded that an indirect threat was not an essential element of the proposed offence. He stated that the same commentator raised the reference to a ‘third-party’ and asked whether it was not too vague. The proposed amendments, that they would like the Committee to consider, were to delete ‘directly’ and ‘indirectly,’ because uttering or conveying a threat was a sufficient description of the act. With regards to a ‘third-party,’ they would propose the wording that was similar to the wording contained in amendments to the Cyber Bill, as proposed amendments to the Sexual Offences Act. A ‘third-party’ then was, for purposes of sexual intimidation would be in line or similar to other third-parties, that in future would be referred to in the Act itself.
It was also raised that provision should be made for traditional practices where it involved female breasts. They merely wanted to indicate that at this stage section 56 (8) already recognised that a person may not be convicted of an offense, in terms of Section 9 of 22, if that person committed the act in compliance with a legitimate cultural practice. That principle was established and they argued that it was not necessary to include it there.
Mr Horn raised the issue about exposure to pornography and asked why it was limited to ‘child pornography.’
Mr du Preez responded that that was how the Act was structured, they should keep in mind that ‘child pornography’ was absolutely illegal, while ‘adult pornography’ was not illegal. The Act provides that if one person exposed another person to ‘child pornography’ that would be an offence. It would not be an offense if A exposed B to adult pornography, however, it does not mean that B would not be offended nor that B would be without a remedy. One would rather look at the Common Law.
Mr Horn made a follow-up question - there were other forms of pornography that were illegal, such as ‘snuff videos’ which showed murder and a sexual act. One would think of ‘bestiality.’ He did not think that child pornography should be the only form of pornography that should be included there.
Mr du Preez responded that this would likely become a technical discussion, he did not know whether he had sufficient time. He advised that he would give some ‘homework’ to Mr Horn, to have a look at the definition of ‘child pornography’ and ‘pornography’ and he would see that in those definitions they refer to those types of acts, which Mr Horn referred. For example, ‘persons engaged in or as the subject of sadistic or masochistic acts of a sexual nature.’ Those issues that Mr Horn raised were covered in those definitions.
Section 51 Removal of particulars from Register [Clause 16 of Bill B16—2020]
Mr du Preez stated that they would look at the provisions dealing with the NRSO as they were reflected in the Bill itself.
He referred to [Clause 5(c) of Bill B16—2020] paragraph (d), which defined that category of persons, as persons who received community-based care, lived in a building or residence and were cared for in a facility providing 24-hour care. That was the proposed amendment, persons who were mentally disabled should be included there, as vulnerable persons, but they actually realised that that would be a mistake, in putting reference to persons who were mentally disabled there. This was because what they were actually doing was, if you look at the Act currently, persons who were mentally disabled were defined and protected with children in all circumstances. If they put persons who were mentally disabled there, then they would restrict that protection. That was why they proposed that in paragraph (a), they should rather refer to the current position, that was ‘a person who was vulnerable, a child or a person who was mentally disabled.’ The other proposed amendment in paragraph (d) came directly from the Committee where the concern was expressed that, they did not include reference to ‘sensory disabilities.’ It was extremely difficult to use those definitions, and use them correctly. Initially, when he heard the proposal, he thought that a sensory disability was the same as a physical disability. A physical disability and intellectual disability, he was under the impression that those two terms were sufficient was to define all the persons who would receive care in 24-hour care facilities.
Dr Newhoudt-Druchen suggested that she should give Mr du Preez some homework relating to the terms. Physical disability was different to sensory disability. A sensory disability covered disabilities such as deafness, blindness. She would be happy if that word stayed. Mental disability was included in intellectual disability – she was not 100 percent sure. It was better to leave it as it was, physical and intellectual. She stated that she would also give herself some homework to provide clarity on that terminology.
Ms Mofokeng wanted to go back to the issue of females under the age of 25 years. She wondered what the view of the Department was - she wanted to know why it was not 25 years to 30 years. What justified the 25 years? People under the age of 40 years often find themselves in such situations but were not able to do anything. She highlighted that most of the people suggested 30 years.
Mr Nqola asked why the elderly were not considered as part of the ‘vulnerable group.’ He had checked the trend of the Gender Based Violence (GBV) pandemic and the elderly women were a centre of focus as victims of GBV. They were targeted by perpetrators, particularly with respect to rape. He wanted to check, for the purpose of the Bill, whether the objective was to combat GBV. Should they not have a provision that equally protects the elderly women against GBV?
Mr du Preez responded that this was extremely important in dealing with all the proposals relating to the expansion of the list, they must start to consider the effect of the proposed amendment to ‘vulnerable persons.’ They were dealing with obligations that were placed on employers and employees. As soon as one started extending or adding to the definition of a person who was vulnerable, the impact or ripple effect in the working sphere of the country became greater.
He made reference to the example of a female under the age of 25 years. What was actually meant by the provision, read with the other provisions within the Act, was to tell employers to first of all determine whether they had 25 year old’s within their employ. If they did, they would have to apply for a certificate from the Registrar stating whether any of the employees were convicted of sexual offences. If you added all the victims of sexual offences, it would have a major impact on the employers as well as on the employees. Given that he had discussed this issue at length with Ms Ina Botha, he asked that she also respond to this question.
It was initially limited to persons under 25 years who found themselves in certain educational institutions. During their consultation process they were advised to rather take out the reference to the educational institutions. He highlighted footnote six to them, which brought a different angle to the debate, hopefully one would start to understand the impact. If one looked at the second last sentence of that footnote, it is indicated to them that 25 percent of the population consists of persons in that age group. They could safely assume that half of them were females. People under the age of 25 years were usually economically active to the extent that they would start working, applying for jobs and changing jobs. The concern was expressed by one commentator that by including females under the age of 25 years as persons who were vulnerable would result in unintended consequences that females might find it harder to become employed. This was due to the fact that it was expected of the employer to go through a lot of additional requirements before being able to employ someone. He asked that Ms Botha also respond as she could provide a different angle to the debate.
Ms Botha referred to the crime statistics provided by SAPS dated 12 September 2019. The crime statistics show that more than 33 125 were victims of rape during the 2018-19 financial year along with 3 573 male victims. The crime statistics show that women aged between 20-29 years were most likely to be raped in South Africa. There were a lot of concerns raised in the media about the students who were raped on university property. As indicated, it was also realised that one cannot distinguish and discriminate between the location of members of that age group i.e. university versus the work environment.
When they were drafting the regulations, they tended to focus on special measures to protect children and to bring about new initiatives to do that. As time has gone by and they have had discussions with the Committee and considered comments from the commentators, they have got a different angle. They were concerned that if it was decided that they wanted to keep the obligation to get a clearance certificate before a person could employ a teacher, employers might not give a 25-year-old the chance to apply, given the current economic situation and tight budgets. They would likely put the application aside and take a 26-year-old as they do not have to go through that process. They do not know how it would play out in practice. The principal of the school would have to get that certificate. The limitation to 25 years of age was focused on the people in the universities, and their ages. They wanted to protect certain people, who were vulnerable, however in doing so, there may be unforeseen consequences.
She responded to the question regarding the elderly people. She stated that it had the same effect even though the elderly people were not part of the working class anymore and would not have the issue of additional onerous procedures that would need to be followed. Can they really say with empirical data that elderly women older than 60 years can all be said to be vulnerable? The elderly were not spared either, persons aged 60 plus opened 1 284 rape cases. It was not as if it was not an important thing to consider however all children were vulnerable. For them to open it up so wide, to include the elderly, they must consider the consequences of doing so.
Mr du Preez stated that they must take one very important aspect into consideration, when they talk about any of the categories of persons. For example, persons older than 60 years, if one included all of them it would entail that any person within that age group who made use of service providers, who employ employees, they would have to vet all their employees. They must take into account the direct effect of extending the list of ‘vulnerable persons.’
The Chairperson said there seemed to be a lot of concern about the vetting process that employers would go through – he still needed to be convinced.
Mr Horn referred back to the issue about who should be deemed a ‘vulnerable person.’ He had previously asked, and he would appreciate it if Ms Botha could repeat the court case that the Department relied upon in advising the Committee that they cannot make an alternative provision as to how it would be determined who was part of the ‘vulnerable group’. He would like to study whether the Constitutional Court as a matter of principle determined that going forward it could not be left to directives and regulations as to who would form part of the ‘vulnerable group.’ He could relate to the fear that females under the age of 20 years could be discriminated against through inclusion on the list of vulnerable people, but simultaneously they have anti-discrimination legislation in the country. It was not as if it would be without consequence nor would it be as if they tacitly agree to them being discriminated against for the purposes of employment, if they included them in the list.
Ms Mofokeng agreed with Mr Horn about making the judgement available, reiterating that it would be important for them to have a look at that. She was still worried about the issue of ‘vulnerable groups,’ especially if one could think about cases that they know of such as the LGBTQI+ community complaining that in some of their employment situations, they were raped, to ‘see if they were gay or what.’ It was very important that they were careful when it came to the ‘vulnerable groups,’ that they should digest that. She was happy about the report that Ms Botha had spoken of regarding the SAPS statistics. Now that they had established that 33 000 females between the ages of 20 and 29, it spoke to the proposal of 30 years. She asked what Ms Botha’s take was on that?
Mr Swart stated that he was largely covered. He appreciated the mention of the unintended consequences as far as employment was concerned. He agreed with the Chairperson that they would still need persuasion in that regard, given the fact that they were trying to combat GBV and that age group was particularly vulnerable. He appreciated the comments about the elderly which broadens the net even more. At this stage they would probably need options put in, whether to include or not include, where that was concerned. The research that was done was very helpful in indicating that this was a particularly vulnerable age group. The discussion around other ways of adding or removing from the list without legislative amendments would also be helpful.
The Deputy Minister stated that the original restriction was ‘a child or person who was mentally disabled’ the rest was later added. 25 Years was arbitrary. The idea was that they would protect young women at the residences of tertiary institutions. They would not want a convicted rapist working near them. One would not find that many students in residences after 25 years of age. He stated that it was an age that could be looked at. He was unclear about the elderly persons issue, because they were there under (e). If one looked at (a) and (b), it was any child, (b) was any woman under the age of 25 years, (c) was people specifically in a shelter for victims of crime, (d) was not everybody who had a physical, intellectual or sensory disability, but they have to meet the requirements of one, two and three. Then they have (e) which was older people, people over 60 years of age, there was a similar requirement of them effectively being institutionalised. Given that they were not saying all physically, intellectually or sensory disabled persons were vulnerable, was it not correct that not all people over 60 years were vulnerable? One can throw the net even wider, but his concern was that it limited the ability to be effective. With respect to LGBTQI+ people, gay men were vulnerable particularly in prison, police cells, particularly effeminate gay men. Are they generally vulnerable? Lesbian women were vulnerable to being raped, particularly to the so called ‘corrective rape’. He stated that that seemed to predominantly happen when persons were under the influence of alcohol. Again, is it necessary to throw the net that wide? These were things they should discuss. Were the older people not already covered? Was it not sufficient, what was under (e)?
The Chairperson reaffirmed what was said by Mr Swart, that Mr du Preez should develop options, so that when they came back to those clauses they could deal with those particular options. One option was to be as wide as possible, and one option was to limit it.
Section 42 of Act 32 of 2007 as amended by section 36 of Act 66 of 2008 [Clause 7 of Bill B16—2020]
Mr du Preez referred to Clause 7 of the Bill. Concerns were raised regarding the retrospective operation of the requirement that all sexual offence convictions should be included in the register. That was an issue raised by a number of commentators. They recommended that a possible solution would be to ensure that only all new sexual offence convictions should be included in the register. The Department had a look at it and think that they might have found a solution to the problem, if the Committee felt that it really was a problem that should be addressed. The proposed solution was to amend the definition of ‘sexual offence’, in paragraph (a). They would restrict the offences against children and persons who were mentally disabled, which were committed between the period of 16 June 2003 and the date of commencement of the amendment Bill. In the second part of the definition, they refer to all the offences in paragraph (a), but those that were committed after the commencement of the amendment Act, they think that that would be a solution to a technical drafting problem that they would have, across all the sections of the act, pertaining to the two categories as far as retrospective and prospective issues were concerned.
The Chairperson asked whether the Department consulted an in-sourced or outsourced legal opinion on the matter, especially the retrospectivity and potential challenges.
Mr du Preez responded that they had not, they were guided by Prof Ann Skelton and the Teddy Bear Clinic with their argument that the retrospectivity might cause a problem related to legality and the ‘theory of punishment’. The Department thought that this was the solution, but it was of course, for the Committee to decide on the approach.
When chapter six was originally enacted, it included all sexual offences against children and persons who were mentally disabled - it included what were referred to later on in practice as ‘historical information.’ The problem with the ‘historical information’ was that the details on the SAP69 form do not reflect the details of children. In the majority of cases it was nearly impossible for SAPS to determine whether the particulars of a certain person must appear on the register or not. Only in those cases where a person was convicted of a contravention of the statutory provision was it easy to determine whether the offence was committed against a child or not. The Children’s Act applied their informational records for a period of five years, prior to the commencement of that Act. It was decided at some stage to amend their provisions accordingly to refer back to that date, not only to align with the Children’s Act but also to attempt to ease the burden of the Registrar, with respect to vetting information that they receive from the CRC. He was not sure which provision it was, but they had already referred to that date in chapter six.
Ms Mofokeng stated that as they had referred to the Teddy Bear Clinic, she requested that they consider the input from Rape Crisis and look at those details as they had a view on that part of the legislation. They had expressed a number of issues.
The Chairperson requested that the Department consult wider on the retrospectivity issue, especially with regard to the proposed solution. He echoed Ms Mofokeng’s request that they consult Rape Crisis, as they could also provide input with respect to case law.
Section 41 The prohibition on certain types of employment [Clause 6 of Bill B16—2020]
Mr du Preez referred to the wording of paragraph (b). It was extremely wide. Most of the commentators argued that it made sense for the wide ambit of the paragraph, when the provision was only applicable to children and persons who were mentally disabled. They however argued that as soon as the definition of ‘vulnerable person’ was extended, then this would pose a lot of practical problems. What they thought could be a possible solution would be to go back and restrict paragraph (b) to children and persons who were mentally disabled. The provision was very wide it referred to supervision or care of children or where such a person could gain access to a child or to places where children were present or congregate. He noted that this was something to consider when extending the definition of ‘vulnerable persons.’ This might impact on 75 percent of the country’s population.
Dr Newhoudt-Druchen said that her concern regarding paragraph (b), was that it only included children and persons with mental disabilities. What about persons with other disabilities who also remain vulnerable? She realised that, as was explained, that it could become very broad but the people with other forms of disabilities would also be vulnerable in that case.
Mr du Preez noted the concern raised by Dr Newhoudt-Druchen and stated that he could not argue with this concern. He took it that the Committee would like to restrict this to children, persons who were mentally disabled and persons with other disabilities as well.
Section 42, The establishment of the NRSO and the designation of a Registrar for the NRSO, with the exception that certain particulars of affected persons will be made publicly available. [Clause 7 of Bill B16—2020]
Mr du Preez stated that Prof Skelton had said that the Teddy Bear Clinic and the Centre for Child Law had expressed the concern that the particulars of persons who were children at the time when the sexual offence took place, could not appear in the register in line with the findings of the constitutional court in the Centre for Child Law versus Media24 case. They were entirely correct - the proposal from the Department was to say that they had pointed out correctly that the particulars of persons who were children at the time when the offence was committed should not be made publicly available. The proposed new sub-section 4 dealt with the public availability of information. The Department wanted the Committee to consider that the provision then drew the distinction by stating that ‘the Registrar must make the full name, surname, identity number and sexual offence of every person whose particulars have been included in the Register and who was not a child at the time of the offence available on the website of the Department of Justice and Constitutional Development’.
Mr Horn made the following comment, mindful of the fact that Mr du Preez told the Committee previously that the Bills were certified as constitutionally compliant. However, they as the Committee should consider getting their own legal advice as to whether publishing, specifically identity numbers, would not violate the privacy laws of the country or expose those included on the list on the website to things like ‘identity fraud’. He understood that the President had announced that as part of their reaction as a country to the scourge. He felt that, as the legislators they must make absolutely sure that this was constitutionally compliant. They should consider, and he requested the Department’s response as to whether they had considered other options available to allow citizens of the country access to the information when they had a real and material interest. Rather than just ‘naming and shaming’ all of those offenders.
The Deputy Minister stated that his recollection of what was said by the President was that Parliament must debate this issue, not that it should become public. That was in the address on Gender-Based Violence. He was unsure whether there was something subsequent to that. Obviously if one goes with using the CRC register then it would not be public. They have seen the problem of the central police register, it worked on fingerprints as people could give false names, false ID numbers, so that was more accurate. Everybody who got convicted got convicted in open court. Their details were already in the public domain, if somebody were to sit in court, they could compile a list. The people who generally did not get their names released were the people who raped children, or committed sexual offences against children who were relatives. In order to protect the child, that person’s name was not released. It would be impossible if they had a public sex offender list to include those people. When they see the cases of State versus ‘H,’ and you find that ‘H’ was accused of raping his stepdaughter/daughter, it was to protect the daughter’s identity, that ‘H’s’ name was not revealed. ‘H’s’ name would not be able to be on the register, because once it was public then it was known and the persons who got most affected was the child.
The Chairperson appreciated the issue raised by the Deputy Minister and stated that it was something they really needed to look at. The issue of giving false information and false IDs and names would totally undermine the credibility of that register. He suggested that they come back and discuss this particular issue again. He asked whether they should proceed with the view that the register would be made public. They would need to take Mr Horn’s view, that as Parliament they would also need to consider the constitutionality of that particular approach. At the moment they had two approaches, the first being having the register public, subject to some of the issues the Deputy Minister had raised, for instance people who had raped children. The second one, if they use the register that was already with the police, which has got fingerprints, then they would come back and further debate the two options. The issue of generally testing the constitutionality of some of the clauses should always be at the back of their minds, that where they were not clear, they would need a legal opinion.
Ms Mofokeng thanked the Chairperson for raising the issue of wrong IDs. She highlighted the issue of criminals changing their IDs. They would claim that their date of birth was wrong. They needed to check what would be the role of Home Affairs, because they were supposed to publicise a person who changed their ID, but it had not happened.
The Chairperson responded that the register of the Police was likely a safer road to take.
Mr du Preez said that the short answer was that the CRC was the most reliable data source in South Africa for the criminal history of a person, precisely because the only form of positive identification of an individual was his/her fingerprints.
Ms Botha stated that they had considered the dangers of having the register public; they discussed this with the Registrar. There was one possibility that if they put it on the website, they realised that there may be other people who may have an interest in getting that information. She suggested that they must go through an application process. People must be asked why they want the information, and then the information can be given. The concern was also highlighted regarding children’s ability to access the website and register. The police stated the day before that they could not make the register completely public; it would need to be on an application basis. With regard to Home Affairs and the issue of name changes, she had a discussion with the Acting Chief Director of Home Affairs about that issue; he stated that it depended upon what aspect people wanted to change. They get many applications for name changes and other changes as well. Depending on what was changed, if you change the name, the ID number stayed the same, if you changed the sex, the ID number would change. He agreed that if the Department wanted, it would not be difficult to inform the register of, for example, the name change. It was then possible to add the new name as well, because they want to retain the old name, to compare it with the ‘69’ [SAPS 69 form] or register. They also offered to provide statistics regarding the number of name-change applications Home Affairs receives, so that the Committee could make an informed decision.
Ms Mofokeng stated that she knew of two people that had rape cases that were public. After the people were convicted, they decided to change their names. Looking further into the matter, one could ask many questions regarding the future reference of those cases. The first one that was known was the case of the victim of Bob Hewitt, she had changed her name and surname, and it was like she was a new person. One day Bob Hewitt could say that he did not rape that person of that name, he raped so and so, there were so many things she had been asking herself about this matter.
The Chairperson asked the Committee, in light of what they had just heard, whether there was any point to making the register public? He agreed with Ms Botha regarding the concern that children would be able to access the register.
Section 44B, Persons entitled to apply for a certificate from the Registrar
Mr du Preez referred to a request by SAPS, for them to be able to comply with section 15A of the SAPS Act; the proposal was that a new section 44A should be included in chapter 6 to allow for access to the register, by the National Commissioner of SAPS. In this regard, they proposed that the wording should read as follows, ‘For the purposes of section 36D(2) of the Criminal Procedure Act 1977 and section 15A(2) of the South African Police Service Act, 1995, the National Commissioner of the SAPS may be granted access to the register by the Registrar.’ They already have a provision that the Director General of Justice and Constitutional Development had access to the register, the data in the register, on request to the Registrar. That was for purposes of expungement applications. This was the proposal, to place an obligation on the Director General of Home Affairs to submit information on name changes to the Registrar to notify the Registrar thereof and then to place an obligation on the Registrar to endorse the register accordingly.
Section 48, Obligations in respect of applications for fostering, kinship, care-giving, temporary safe care-giving, and adoption of children or curatorship [Clause 13 of Bill B16—2020]
The question was previously raised regarding what should happen to a person who had been convicted of a sexual offense and was granted custody of a child. The proposal was that as soon as reasonably possible, the child should be removed from the care of such a person.
Mr Horn stated that that the proposal made perfect sense, he wanted to enquire whether it would not be prudent to place the obligation on someone, or some Department, specifically, rather than including an obligation on the whole of South Africa, that such a child must be removed.
Mr du Preez responded to say that the law provided for it, they need to make the link with the current legal procedure in terms of which a child was then taken away.
Ms Botha stated that what presently happened was that if there was a child in the custody of foster parents, or if the child was adopted and it came to the notice of a social worker or it was reported, they would start proceedings with the Commissioner of Child welfare. The fact that they had tweaked the law here and there did not matter in the bigger scheme of things. But she agreed with Mr Horn that they needed to make sure that there was a specific obligation on somebody to report that, or disclose that or to link it to the Children’s Act.
Section 51, Removal of particulars from Register [Clause 16 of Bill B16—2020]
Mr du Preez stated that the proposal was that a special dispensation should be created for persons who were children at the time of the offence with regard to the period in which their particulars must remain on the register. The periods proposed were doubled. If the NRSO functions were transferred to the CRC, a provision like that would not exist. One would not be able to apply for the expungement of one’s record after the period mentioned there. Those were different applications being brought under the Criminal Procedure Act. Currently in the Bill they had a transitional provision which provided that if an application had been submitted to the Registrar for the removal of details before the commencement of the amendment act those applications must be considered as if the amendment act had not commenced. However, they would have liked to propose a different approach there to the extent that they refer to anyone who had qualified for the removal of their particulars, to be able to do so, even after the implementation of the amendment act, but that the Registrar must consider those applications as if it was done under the old provisions of the act.
Mr Horn requested that Mr du Preez look at the provisions around ‘sexual intimidation’ from the perspective that, as he understood it, this was the introduction of a new crime, and whether it should only be limited to the ‘exposure to child pornography’ and not ‘pornography in general.’ He asked that Ms Botha provide them with the case reference of the constitutional court case on which basis the Department stated that they must, as the legislator, determine vulnerable persons, and not allow for it to be determined from time to time.
The Committee Members thanked the Department for the presentation.
The Chairperson discussed scheduling and stated that the Department would likely present this to them again on Wednesday the following week. He hoped that the Department could present a number of options, and the Committee could consider these options so that they could vote on aspects of the Bill.
[A 40minute break was taken.]
The Chairperson asked that Mr Robbertse take the Committee through the Bill.
Presentation of Amendments proposed to: Criminal and Related Matters Amendment Bill [B17 – 2020]
Mr Robbertse said that he had previously gone through the summary of the comments that were relevant to the Bill. On the previous occasion he also indicated the amendments requested [by commentators] and to what extent the Department was going to accommodate them or not. The document, the ‘A-List,’ that was presented showed the proposed amendments that were drafted more exactly than that which was proposed in the discussion. He thought that at this stage it was probably necessary to consider certain proposed amendments that must be affected to the Bill. Obviously the ‘A-list’ was the medium to affect those amendments.
Clause one dealt with the appointment of intermediaries in Magistrate Courts and certain civil cases. An amendment was proposed by the Legal Aid Board relating to the powers of the court to review its own decision, where it refused appointment of an intermediary, in respect of the category of persons contemplated in section 51(a)(1). There was a correction that needed to be made to section 51, there was a reference to subsection (1), in the first paragraph. It was proposed that the paragraph be numbered subsection (1). A court must provide reasons to refuse the appointment of an intermediary. 51A was amended; the effect of the amendment was that the current clause was numbered as paragraph (a). There were also amendments to the wording of that provision. The provision referred to any application or request, if one looks at section 51A(1), one would see that ‘the court may on application by any party to civil proceedings appoint’ was proposed. The reference to the word ‘request’ was omitted from the original provision. A new paragraph (b) was inserted in that section, that gave effect to the proposals by Legal Aid South Africa, it was discussed in paragraph 2.8 (b) of the comments and discussion document. The amendment was to the effect that the court may, where it refused an appointment of an intermediary, on application by a person that was affected by its decision and if it was satisfied with certain material changes, with respect to the circumstances that were taken into account for refusal to appoint the intermediary, a court could review its decision.
Clause four dealt with instances where a person appeared in Court for a formal bail application. In the comment and responses document, paragraph 4.6, the Western Cape Government made recommendations to the effect that the clause would be extended if paragraph (g) of subsection 5 of section 60 be amended to also include a reference to where a person was released, in addition to bail, placed under correctional supervision i.e. day-parole or medical parole, as contemplated in section 73 of the Correctional Services Act.
Section 65 of the Criminal Procedures Act dealt with, amongst other things, the grounds that must be taken into account to determine whether a person was a danger to any other person, as contemplated in section 64A of Criminal Procedures Act. The current clause (g) provided that the Court must take into account evidence that an accused was previously committed of an offence, referred to in schedule 1 of the Criminal Procedures Act, or an offence of a domestic relationship or that they contravened certain protection orders while they were out on bail. That paragraph was also extended to include where the person was placed under correctional supervision, day parole of medical parole as contemplated in the Correctional Services Act.
Clause 8 deals with section 170A of the Criminal Procedures Act, and the appointment of intermediaries in criminal proceedings, similar to section 151A, which was previously discussed. The recommendations of Legal Aid South Africa were considered in relation to the refusal of the court to appoint an intermediary in certain circumstances. The main amendment was a provision inserted to provide that a court may review its decision, if it was satisfied of a material change with respect of certain facts and circumstances that influenced the refusal to appoint an intermediary. This was probably very relevant due to the fact that in addition to persons that were under 18 years, it was also applicable to certain persons that suffer from certain conditions, who would suffer harm if they gave evidence in proceedings, in the form of psychological and mental or emotional stress. In addition to the proposed paragraph b, the current subsection 7 was also amended to deal with the word ‘shall’ which was updated to ‘must.’ The provision was made that if a witness was refused, the Court must immediately, upon refusal, give reasons.
In the previous Committee meeting, the concerns of Legal Aid South Africa were discussed, mainly in relation to part 2 schedule 2, that attempted murder should not be treated similarly to murder. Adv Breytenbach had referred to the fact that attempted murder was on par with murder. There should be no distinction. After considering her comments, the Department came up with an amendment to part 1 of schedule 2 of the Minimum Sentences Act, attempted murder was inserted in the first paragraph of the document and in part 1 of schedule 2. It provided that attempted murder was included in the schedule. If it was committed under circumstances such as if murder was premeditated or a victim died during a rape amongst other, that the minimum sentence should be applicable. This would also apply to attempted murder. In paragraph 2 and 3, the substitution of the current paragraph (b) to read as paragraph (c). The current paragraph (c) was then renumbered to paragraph (d). To further address the comment of the Committee, with specific reference to attempted murder, it was listed in part 2 of schedule 2. The attempted murder that was referred to in part 2 of schedule 2 was qualified with reference to the fact that it must be attempted murder in circumstances other than those referred to in part 1. Murder was listed in part two of schedule 2, and it was also qualified that it meant murder in circumstances other than in those referred to in part 1. With respect to part 1 of schedule 2, murder and attempted murder, if aggravated circumstances were present, would be dealt with in terms of part 1. The lesser murder as well as attempted murder would then be dealt with in part 2 of schedule 2 of the Minimum Sentences Act.
The amendment to clause 18 related to section 37A, or the proposed section 37A of the Superior Courts Act, which was inserted to deal with the appointment of intermediaries. Similar amendments, as discussed with respect to clause 1, were effected to section 37A. They made reference to requests moved from the current clause, which was also numbered as paragraph (a); a new clause was inserted to the effect that a Court may revise its decision if it was satisfied of the various material changes in respect of any fact or circumstances that influenced its decision to refuse the appointment of an intermediary. Two aspects were raised by the Committee on previous occasions in relation to section 299A of the Criminal Procedures Act, which provided that the Court must inform a victim in certain circumstances of their rights to make presentations in parole proceedings. The current period of seven years was questioned by some commentators. Some commentators proposed the period of four or five years. Legal Aid South Africa does not propose a period of imprisonment, but if there was direct imprisonment, the courts should inform the complainants of their rights to make presentations. While it was up to the Committee to decide what the appropriate period was, that period could be substituted when they dealt further with the Bill. Issues were also raised relating to the proposed appeal against certain procedures in the Criminal Procedures Act.
Clause 10 proposed amendments to section 316B of the Criminal Procedures Act. The Department did indicate that there was probably two appeal court cases that were applicable to the matter that regulated it. The one states that it was undesirable to afford the power to the state to appeal against sentence, the other one, if correctly interpreted, allows for appeal against sentence in criminal cases. There was some research that was done regarding appeals against sentence. There were some jurisdictions that do allow it, such as New Zealand. Provision was made in section 246 of the New Zealand Criminal Procedure Act of 2011. A submission was that there was authority in foreign jurisdictions that give the indication that the State can, in certain circumstances, appeal against sentence. The Department’s views were addressed in the Comments and Responses document where it was summarised with reference to the contention of Legal Aid South Africa that it may be undesirable to afford the state the power to appeal in criminal proceedings.
Mr Horn enquired, in terms of process, about the ‘A-list’. He did not want to suggest that it was necessarily premature, but he understood from their previous meeting that they had a discussion on the responses of the Department to what was said during the public hearings. They as a Committee had not advanced to the stage of giving their input. Whilst he had no problem with what was presented, he would have hoped that before they had advanced to this stage, they could have had a discussion or debate on the issues contained in clause 2 of the Bill, relating to the prohibition on bail e.g. the inability to be released on bail before the first appearance in court. Will the Committee still have that opportunity? He suggested that clause 2 may be an area where the Committee may want additional legal advice as to whether it was constitutional. He had looked at all the instances…
The Chairperson interrupted Mr Horn. He suggested that given that the Department had moved faster than expected, ahead of what they may have thought should have been the process, there was nothing stopping members from raising any issue. Even if it meant that they would reopen certain areas that the Department might have thought had been passed.
Mr Horn proceeded. In respect of clause 2, one of the instances which was now included as the type of offence where there would not be a possibility for release on bail, prior to first appearance in a lower court, would be if a person breached a protection order in terms of the Domestic Violence Act. Even if one puts aside for the moment whether it was a dual limitation of rights, given that they have the presumption of innocence in the law, if one looked at the Domestic Violence Act, these protection orders were invariably issued on an ex parte basis, in terms of section 7 of the Domestic Violence Act. In terms of section 10 of the Domestic Violence Act, a respondent may approach the Court for a review of the protection order. That in itself was an indication that when the law was drafted, Parliament was well-aware of the rule, possibly for good reason, not really applied before the issuing of protection orders. Then to include breaches of protection orders, in the list of offences, for which an offender, who was being held in custody, cannot get bail earlier than the first appearance in court was doubling up on taking the rights of an offender away. In theory, one could have a situation where a protection order was issued one day against somebody, they have not had the opportunity in terms of section 10 to ask the Court to review the protection order, and the next day they could be in custody and be held in custody until their first appearance in court. To his mind, that could not be fair or constitutional. In terms of reality it does not have a checks and balance approach as they also know that sometimes because these protection orders were issued on an ex parte basis, they were being abused. While they want to clamp down on domestic violence, they must look into having a safety net for when the provisions of the Act were being abused.
Dr Newhoudt-Druchen asked how come they did not see the highlights in the document as they had requested in the previous meeting, for easier reading, and footnotes as they saw earlier in the day. She noted that it was quite difficult to do a comparison or cross-check in the moment. She stated that she would have appreciated a presentation that was structured in that manner.
The Deputy Minister responded to Mr Horn, he stated that it was a policy decision; it was a balancing of rights and dangers. Currently the arrangement was that for minor offences, the Police could give bail, for more serious offences, the prosecution could. For certain offences one cannot. It was true that, that the Domestic Violence Application Order was ex parte, there was no requirement, because of the potential danger to the person concerned. They needed the protection order quickly. The idea at the time was if they do not need the order because they were lying, then it was not going to hurt anyone for them to get the order, and the person could come back at a later point. This goes one step further, the person against who the order was made was alleged to have broken the order, hence he was arrested, waiting for court, if it was in the week, the person would wait overnight. If it was on the weekend, he would have to spend the weekend in jail. They have had situations, or one particular situation, where a woman had a protection order against her husband, he then beat her up, got arrested, she was put in ICU. His lawyer organised for him to get bail and he was out in a very short space of time. That was because the Police and the prosecution did not have time to check whether he had a protection order against him. They were aware of the assault, but they were not aware of the protection order. This was some of the motivation; it was a balancing of rights.
Mr Horn said he fully appreciated examples like the one the Deputy Minister had given but similarly they could not turn a blind eye to the fact that if there were no checks and balances in the system, it did open up the system to abuse. The example the Deputy Minster gave of somebody having to spend a weekend in jail before they could appear in court for a bail application, could expose the Department going forward to claims, if there was no safety net built into the system. He argued that to put a blanket prohibition on being released on bail, in the circumstances described, would be dangerous. They should look into building in some form of assistance, specifically for protection orders.
Mr Robbertse responded regarding clause 2, section 59. This provided, amongst other things, that if the accused was in custody for an offence where it contravened the protection order in terms of the Protection of Harassment Act, or where he contravened or committed an offence, the Police official cannot provide bail. If the person does not have knowledge of the protection order he cannot contravene it. You can only contravene something if it is brought to your attention. In that instance, he cannot see how a person can actually fall within the category of persons that was referred to in section 59A. Mainly because of the protection order that you cannot trespass on certain shared property, the majority of conduct that was usually prohibited was either something like damage to property or violence etc. In certain narrow circumstances, a police officer would have discretion to arrest a person for an offence that was in the Protection of Harassment Act and in the Domestic Violence Act. In such circumstances, there would be notice to the person that he must appear in court on a date specified. In most instances a person would be arrested, only if the complainant suffered harm. The Protection of Harassment Act and the Domestic Violence Act would specify what must be taken into account if a person suffered harm or feared for his or her safety. A person, who would be arrested, in most cases, would only be arrested if harm was committed. He noted these comments with reference to the fact that Mr Horn referred to an interim protection order which could be set aside at a later stage. Obviously, there may be a protection order in place, but despite an order in Court this person might continue to commit further offences against the complainant. Obviously, to protect the complainant it was necessary to remove the accused to achieve the objectives of the Domestic Violence Act. His submission was that it was justifiable. He requested that if Mr Horn could provide further inputs to this, it would be appreciated.
Regarding the comment about the structure of the presentation not being the same as the presentation that took place in the morning, he pointed out that the previous presentation that he had made to the Committee provided for extensive discussions regarding the proposed amendments and the comments that gave rise to it. The comment document he had previously distributed also had the relevant sections highlighted in bold, in red.
Dr Newhoudt-Druchen asked a question relating to what was discussed by the Deputy Minister. Suppose someone beat up a victim and they had a protection order, the wife was in ICU, but the person got his lawyer to get him out on bail and there was no one who opposed the bail. If something like that happened, can a neighbour or a family member submit on behalf of the victim, who was lying in ICU, to oppose the bail? Is there any provision for that, that someone else can oppose the bail?
The Deputy Minister responded to say that in those bail cases, police or prosecutorial bail cases, there would be no representation from the victims or the survivors. The state would be represented by the prosecutor. It did not matter if the woman had got shot at and she was home in one piece and not in hospital, she would not know that her partner or ex-partner had been granted bail. It was a balancing of rights issue. The issue of where was the greatest harm. For the person to get arrested, apart from being alleged to have committed an offence which resulted in them getting an interim protection order against him, he then gets arrested because he was alleged to have broken that order, or broken it seriously. There were a number of cases where people do that and then they get bail, and then they carry on. It was a balance of respecting their rights and that of the victims. Some people were suggesting no bail at all; he did not think they could oust the ability of the Court to grant bail, it would be unconstitutional. This was a sensitive area.
Mr Horn stated that he would look into it and he would consult with Adv Breytenbach.
Adv Breytenbach suggested that it was a difficult issue; it was a balancing of rights. She had a number of suggestions that she offered to put in writing and send to the Committee, including Mr Robbertse. She tended to agree that they should err on the side of protecting the victim but of course there was a constitutional imperative, of [the alleged perpetrator] being innocent until being found guilty, also to not be detained unnecessarily.
Ms Mofokeng agreed with the suggestion. She suggested that Adv Breytenbach could check the issues raised by the Sexual and Gender Based Violence Unit of the South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC). A number of issues and suggestions were communicated by them. This was what the Department gave them relating to some of the judgements that were there.
Mr Robbertse stated that with regard to bail applications, it was not necessary for the victim to come to court to testify under oath that a crime was committed against him or her. The police official may give evidence to the effect of ‘the victim was in hospital, there was suspicion that the accused shot her etc.’ Other people may provide evidence to substantiate the circumstances to the effect that the person must be kept in custody. Another person may give evidence regarding the facts that the court should take into account in considering bail.
Adv Breytenbach stated that people generally conflate issues of bail. Bail was a unique procedure it had nothing to do with guilt or innocence, it was completely removed from a criminal trial. The only purpose of bail was to secure the attendance of the accused at his trial. If there was nothing mitigating against him attending his trial, bail must be granted, unless he was a danger to society, or there was a risk of interfering with the investigation or state witnesses or propensity commit crimes while out on bail. The seriousness of the crime had nothing to do with the amount of bail. That was the place they needed to start out from if they wanted to interfere with those principles. There must be a very good reason for doing so. The offence was only a small part of the bail application. It was not an emotional process. It was important to bring an objective mind to it.
Ms Maseko-Jele stated that she was happy that Adv Breytenbach and Mr Horn would assist on this matter. She understood that these were the principles that had always been there, also considering the issues of the constitution and rights of the perpetrators. She agreed with the fact that rights must be balanced. She expressed concern regarding competent police and investigators, without undermining or accusing police. Most of the police that they see handling the issues of GBV and femicide have made women to be where they were. She wanted to take out the emotions but it was difficult as it seemed as if it was only the rights of the perpetrators that were taken care of. She understood that they had a right to bail but it was also dangerous for the victim, such as in the instance previously mentioned.
The Chairperson stated that they must also balance it against a situation where a certain section of the legislation was challenged in court by anybody and then it could be struck off as unconstitutional. Would that not reverse the war against GBV and femicide? When they try and draft that clause, they have to balance all of those issues. Ultimately, whatever they feel must be able to pass constitutional muster.
Dr Newhoudt-Druchen agreed with the Chairperson. She asked what the statistics were regarding the number of cases where a person got out on bail and committed the same crime. Do we have any statistics? If the statistics were very high, they need to take that number into consideration. It would not be emotive; it would be fact and they needed to consider that as well.
Mr Nqola stated that it reminded him of the public consultation, when he asked the question ‘how do they balance a GBV Bill that provided that there must be no bail against perpetrators of GBV and the supreme law of the country which grants every citizen the right to apply for bail.’ To what extent do they limit section 35 of the Constitution? Section 36 speaks to the law of general application, which was a condition wherein the right of a person in the Bill of Rights could be limited by state institutions. He suggested that in the deliberations the following week, the Committee ought to have one representative from the Parliamentary Legal Services, so that they guide them as they continue to discuss the matter of bail.
Identification of Key Issues
The Chairperson suggested that by the end of the day, they should have identified the clauses that needed legal opinion, this one being one of them (bail). They were trying to ensure that they processed the Bill speedily without compromising the quality. They would ask for a legal opinion from the Parliamentary Legal Services or even for a Senior Counsel legal opinion, but they would send through a consolidated list on the two bills they had discussed that day. He also noted that they had Members who had been prosecutors for some time, who could look at the appropriate clause that could balance all of the issues. It was a very concerning matter affecting the people, especially women. He suggested going through the list of issues that they may want legal advice on.
Adv Breytenbach suggested they needed to look at the issue around bail and the refusal of bail and applying for bail. People keep shouting for ‘no bail, no bail,’ but it was not as simple as that. They require a definitive opinion on that.
The Chairperson asked the Committee what their opinions were regarding making the register for sexual offences public. Do we require an opinion on that?
The Committee Members agreed that they needed an opinion on that as well as the issue of parole.
Mr Swart stated that they needed to bear in mind that the Department was under a lot of pressure as well as the parliamentary legal advisors. They needed to give them enough time. He referred to the Chairperson’s mention of Senior Counsel’s opinion - that takes time as well and was very costly. He was unsure the process and who could request for it. The bail might justify the need for Senior Counsel’s opinion, as there were many conflicting cases however this was not true for all of the issues raised. He requested that Ms Loots advise them in this regard, as to the process.
The Chairperson requested that they categorise their discussion into two, the first would be the identification of issues, the second, the process they would embark on. They had identified the issue of bail, whether the register should be public or not and the issue of parole. Are there any other issues?
Mr Swart asked whether they had sufficiently covered the issue in the proposals relating to retrospectivity and prospectivity. He thought that they had had some good discussions in the morning as well as some good proposals. That was a very important issue that could be looked at internally. The process was ongoing, there were some suggestions from Mr du Preez about dealing with prospectivity and the implications of that. He raised it as a possible issue to look at, not that they necessarily need a legal opinion on it.
The Deputy Minister referred to the bail issues. There were two aspects to it, the main aspect that they discussed was around the granting of Police or prosecutorial bail and whether that should be allowed or not, for breaking protection orders. The other was no bail at all, raised by the public, this was more difficult as it was effectively ousting the court from considering the granting of bail or not. They should be very careful of this given the history of the country, where the Apartheid regime did that on a number of cases.
On the issue of the public nature of the register, again that was a contentious public issue. The issue was that people, who were convicted of sexual offences against their children, were not named to protect the child, not them. What happens with them and a public sex offenders’ register? If the police become the sole repository of the record and you wanted to check whether they have a criminal record, it would come up. If the register was public and those persons names were not made public, those people would be protected, even though the purpose was to protect the child. The name was not made public in certain very serious rape cases, whereas, in others it was.
On the retrospectivity issue, he recalled that the Sexual Offences Act was passed in 2007. It was retrospective with respect to the names on the sex offenders register. It was not that any person who committed a crime from that date would go onto the register. It was anyone who had committed a crime whenever. That was also a public policy issue. A legal opinion was a guide rather than a definitive indicator of how the Constitutional Court would rule.
The Chairperson noted that there were likely some of them who were or were not in favour regarding some of the issues discussed. The legal opinion would ensure that they had done everything to ensure that it was constitutionally sound.
Mr Horn highlighted the issue of their ability or not, to delegate the authority to determine from time to time who was deemed vulnerable. The parliamentary legal advisors would obviously keep abreast of all the Constitutional Court findings, even though they do not have the case reference to the case Ms Botha referred to. Could they also advise as to the impact of that specific judgment? That could assist them greatly given that there seemed to be at least the possibility that from time to time the list would need to be amended.
Mr Swart noted that they had debated a lot of the issues. He did not think they needed an outside legal opinion on every issue, not even a Parliamentary Legal Services opinion. He had found the Departmental lawyers very helpful, as long as they gave them enough time. He wanted to understand the process given the time constraints. Mr Horn had identified that morning, the areas where they needed to deliberate on policy decisions which might not need legal opinions. They may not need a legal opinion, but they may want legal options.
The Chairperson noted Mr Swart’s point. They were not delegating their right to deliberate on the Bill; they were firstly identifying the issues and would apply the appropriate process relating to each issue. For instance, on the issue of the Registrar, if one took the view that was at some point advanced by the Deputy Minister that the Police Register had all the information and was much safer. Automatically if one took that particular view, it had other implications on certain clauses of the Bill that would need to be removed. Those would be decisions that the Committee would take. They were brainstorming that day so that the issue would become clearer, which issues they were debating, which areas were they agreeing on, or disagreeing on. A legal opinion would never substitute political decisions.
Mr Swart stated that they needed to be mindful that both the Departmental and the parliamentary legal advisors needed sufficient time to form opinions. They were under a lot of pressure. He appreciated the work they had done.
The Chairperson agreed, and stated that they would need to deal with the programme, as they did need to provide sufficient time for that work to be done properly. They were balancing a lot of things, speed with quality. Quality would only be ensured if they provided space and time for the Department and Parliament to do the right research and they needed to ensure that they try and save money as much as they could. He asked whether the members had any further issues to raise. He then asked whether Ms Loots was able to record all the issues raised.
Ms Barbara Loots, Parliamentary Legal Advisor, confirmed that she had recorded all the relevant issues that were raised
The Chairperson asked the Committee whether it would be alright to first consult the parliamentary legal advisors, unless they did not have the capacity at present to do so.
The Members confirmed that that was appropriate.
The Chairperson suggested that the Department could do further research on those issues as well as the Parliamentary legal advisors. He asked what timeframe they should give the Department and parliamentary legal advisors.
Ms Mofokeng suggested that they needed to be realistic about the timeframe, regarding quality. They only had two weeks.
Mr Horn suggested that they ask the Department and parliamentary legal advisors what was a realistic timeline.
Ms Loots suggested that she would discuss the issues highlighted by the Committee, with her Senior, because they were quite complex. Under normal circumstances their opinions took seven working days. She was very cautious about rushing the issues highlighted, as they may have to discuss it with other people in her unit who have different areas of expertise. She would report back to the Committee on the following Tuesday, as to the estimated time needed. She would in any case start work on it over the weekend. She would not wait until following Tuesday to start working on it.
The Chairperson accepted this, but noted that they would be dealing with the Domestic Violence Bill on Tuesday [17 November], and additional issues may be raised that would need to get legal advice. It would be quite a lot of work. It would likely not be less than seven days. That would mean that with respect to the program, they would need to meet on Tuesday for the Domestic Violence Bill, it would be quite long. The issue would be what their program would be for the following two weeks, while they were giving the Department and the Parliamentary Legal Services time to do the research. He suggested that by Tuesday they would present a revised program to the Committee before they start the meeting, so that the he and the Committee Secretary could finalise the programme.
Mr Horn reminded the Committee that in looking at the revised programme, the following Friday, 20 November 2020, was scheduled for a plenary from 10am onward. On that day, in terms of their previous programme, they had scheduled to meet with the Minister; this would need to be rescheduled.
The Chairperson noted what Mr Horn said and stated that it would be included when the programme was presented on Tuesday.
The meeting was adjourned.