ATC210226: Report of the Portfolio Committee on Justice and Correctional Services on the Criminal and Related Matters Amendment Bill [B 17- 2020], dated26February 2021
Report of the Portfolio Committee on Justice and Correctional Services on the Criminal and Related Matters Amendment Bill [B 17- 2020], dated26February 2021
The Portfolio Committee on Justice and Correctional Services having considered the Criminal and Related Matters Amendment Bill [B17 -2020], reports the Bill with amendments [B17B- 2020].
The Committee reports further:
- The levels of gender-based violence and femicide in this country are among the highest in the world, and are acknowledged as a second pandemic.
- In November 2018, a Presidential Summit against Gender-Based Violence and Femicide (GBVF) was held, emerging from the #TheTotalShutdown movement. The Summit resulted in a Declaration which resolved, among others, to:
- Fast track the review of existing laws and policies on gender-based violence to be victim-centred and ensure all other relevant laws respond to GBVF.
- Implement the recommendations that have been identified from reviews and address legislative gaps.
- Revisit and fast track all outstanding laws and bills that relate to GBVF.
- On 18 September 2019, the President expressed the country’s commitment to address the scourge of GBVF and announced an emergency response plan to tackle GBVF, which includes strengthening the applicable legal framework.
- The Criminal and Related Matters Amendment Bill was introduced and referred to the Committee on 28 August 2020. The Bill forms part of a number of legislative measures to strengthen our response to GBVF.
- Briefly, the Bill amends several Acts, and is intended to (i) address gender-based violence and offences committed against vulnerable persons; (ii) provide for additional procedures to reduce secondary victimisation of vulnerable persons in court proceedings by expanding the circumstances in which a complainant can give evidence through an intermediary and by providing for evidence to be given through audio-visual links in proceedings other than criminal proceedings; and (iii) tighten bail and minimum sentencing provisions in the context of GBVF.
- The Committee was briefed on the contents of the Bill on 1 September 2020 and the Bill was then published for public comment. The Committee held public hearings on the Bill, and two others also aimed at strengthening the relevant legislative framework, on 20, 21, 22, 23 and 28 October 2020.
- Having heard the comments on the Bill, the Committee, among others, considered the constitutionality of the limitation on bail in relation to GBVF offences and was concerned to ensure that the Bill achieves the proper balance of rights, in particular, between the rights of the victim and an alleged perpetrator in GBVFoffences in bail proceedings.
- In the case of bail, the categories of protected rights that intersect are the freedom and security of person as contemplated in section 12 of the Constitution and the right contemplated in section 35(1)(f) of the Constitution, namely that everyone who is arrested for allegedly committing an offence has the right to be released from detention if the interests of justice permit, subject to reasonable conditions. The Committee is advised that the grant or refusal of bail is a judicial function, notwithstanding so-called "police bail" under section 59 and "prosecutor's bail" under section 59A of the Criminal Procedure Act51 of 1977. The Committee is of the view that as long as the proposed amendments do not amount to an outright denial of bail, the restrictions on bail proposed by the Bill are constitutional.
Report to be considered.
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