Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill [B18-2014]: Department response to submissions; Legal Aid SA submission

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Justice and Correctional Services

25 March 2015
Chairperson: Dr M Motshekga (ANC)
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Meeting Summary

Legal Aid South Africa’s position on the Bill was generally acceptance of all of the clauses and the same applied for its position on the suggestion that clause 7 be amended to place a procedural and financial burden on the state to apply for a child to have their name included on to the National Sex Offender’s Register, where the prosecution deems fit.

At the Committee’s request, the Department of Justice and Constitutional Development had prepared a potential amendment to section 57 which would address the concerns that the minimum age of consent was being lowered as a result of the Constitutional Court Judgements plus the submissions to the effect that the minimum age for capacity to consent to sex be either lowered or raised. With the rationale behind the submissions for changing the minimum age for capacity to consent to sex undermined, the contents of the potential amendment were that sections 15 and 16 should be scrapped, with section 57 amended to stipulate that anyone under the age of 16 is incapable of consenting to sex, with the proviso that where the sex is normal sexual experimentation between peers this will be accepted.

Members were concerned that the imposition of an age of consent would be arbitrary and therefore urged for further engagement on the matter aided by social scientists. A further concern was that the opinion that the scope for the exception to the incapacity to consent could be based too much on the expert evidence accepted by the Constitutional Court, which was not contested, potentially leading to too great a scope for the exception or defence of being close-in-age.

Lastly, the Committee was taken through a summarised version of the Department’s response to the public submissions. The Department noted a proposal not raised in the submissions was the removal of children who were convicted prior to the 2007 Criminal Law Amendments, from the National Sex Offenders Register. There was much discussion on the submission by the Centre for Child Law on the role of the state in applying for the inclusion of child sex offender’s name in the Register and the potential burden on the state by requiring psychological assessments. These assessments were geared at determining whether a child “will reoffend” and which must be conducted by a “suitably qualified” person. Concerns were raised by the National Prosecuting Authority that similar practical problems to those faced in criminal capacity enquiries under section11 of the Child Justice Act will arise if the Centre’s proposed wording was used. It was however, generally accepted that placing the burden on the state to pursue such an application would reduce the resource burden and be in the best interests of the child.

Meeting report

The Chairperson welcomed everyone present and especially Adv Mornay Calitz, Senior Litigator: Legal Aid South Africa (LASA), who “created job opportunities for all of us” by litigating the J Case in the Constitutional Court and raising the present matter. LASA would present its submission first and then the Department of Justice and Constitutional Development (DoJ) on section 57 would follow.

Legal Aid South Africa submission
Ms Cordelia Robertson, Regional Operations Executive: LASA, said clauses 1 to 6 of the Bill are accepted by LASA as conforming to the relevant judgments of the Constitutional Court and being in the best interests of the child. She noted that there are no implications for LASA’s provision of legal aid under clauses 4 to 6. On Clause 7 which amends section 50 of the Criminal Law Amendment (Sexual Offences and Related Matters) Act, LASA is required under policy to provide legal representation to unrepresented children under sections 82 and 83 of the Child Justice Act. Therefore, LASA representatives would be able to address the court and no additional capacity would be required. Clause 8, which deals with application to have a child sex offender’s name removed from the National Sex Offenders Register (NSOR), is accepted as being in the best interests of the child. LASA’s policy is to generally not provide legal representation to persons who are not arrested, detained or sentenced. However, limited exceptions to this policy exist and consideration of a revision will be done to provide legal aid to persons affected by this provision. The provisions of clause 9 were necessary and LASA has no objection. Clause 10 empowers the Minister to make regulations for the procedure to be followed for clause 8 and LASA has no objection.

Adv Lawrence Bassett, State Law Advisor DoJ, reminded Members of the proposal from several commentators to place the responsibility for pursuing the registration of child sex offenders, under clause 7, on the prosecution to bring an application to court where it is of the view that the case warrants it. Further, that upon such an application, the child undergo an assessment at state expense. While there were no objections from the Department, he asked for LASA’s position on the potential financial implications of the clause as it stands versus along the lines of the proposed amendment.

The Chairperson said this was a good question, because when it comes to criminals they are defended without qualification due to the constitutional obligation. This should be the case with children, particularly vulnerable children who are impoverished or do not have parents. There would have to be sound reasons for LASA to not provide this representation.

Ms Robertson said if the criminal capacity of children under the age of 14 is considered, the state would normally have to prove that the child has the necessary criminal capacity so a psychiatric report would be obtained by the state. If LASA is defending the child, and is unhappy with the report provided then it does have a budget to retain their own psychiatric assessments and reports. The situation could be similar under clause 7, with the state procuring the initial report and LASA potentially seeking its own.

Department of Justice: Option for Amending Section 57 of the Sexual Offenders Act
Adv Basset said the Committee had requested that this option be developed as a result of submissions raised during the public hearings. He asked Mr Henk du Preez, to take the Committee through the potential amendment and a short summary of the development of the common law regarding the age of consent.

Mr Henk du Preez, DoJ State Law Advisor, said during the public hearings, commentators had expressed concern about what they termed the age of capacity to consent, which under the Act at present is 12. There were two main proposals, reducing the age of consent to 10 years or lifting it to 14. On reducing the age to 10, the arguments raised by the South African Catholic Bishops Conference was that the age of 12 was not in line with age of criminal capacity in the Child Justice Act. The reason that this is not a viable option, aside from other unintended consequences, is because the Department is engaged in a process of reviewing the minimum age of criminal capacity, which is soon to be tabled in Parliament. At this stage it would be putting the cart before the horse to effect this amendment while there is a strong possibility that the minimum age may be raised. The second proposal of lifting the age of consent, was not particularly opposed, but it was questioned on the basis that what value would the provisions serve if the protected age gap is reduced from 12-to-16 years old to 14-to-6 years old.

The Department therefore went back to consider a potential amendment to address the concern that the age of consent is being reduced as a result of the judgment in the Teddy Bear Clinic Case. In terms of the common law and section 14 of the Immorality Act of 1957, certain offences were outlined regarding children older than 12. A connection was drawn between the definition in the Immorality Act and the common law definition. The common law definition of rape was: unlawful and intentional sexual penetration of a woman without her consent, read with the common law rule that a girl under the age of 12 cannot consent. Therefore it was necessary for the legislature to fill a certain gap, because there was no question of consent with a child under the age of 12, but if the state had to deal with a rape of a 13 or 14 year old then the state had to prove the absence of consent. The legislature therefore decided to fill the gap, leave the common law rule regarding girls under 12 alone as it was well known. It rather created statutory offences such as where a person commits an immoral act with a 16 year old they are then guilty of contravening section 14 of the Immorality Act. Nowhere in section 14 do the words ‘statutory rape’ appear and this is because the term statutory rape was being used by textbook authors to differentiate between common law rape and statutory rape. It is important to note that with the 2007 Criminal Law Amendment Act, the common law around sexual offences was repealed. The question must then be asked what purpose sections 15 and 16 serve. The proposal is therefore to recommended amending section 57 to state clear parameters around ages, then there is no need for sections 15 and 16 in the Act.

Mr du Preez said if sections 15 and 16 are scrapped and section 57 amended to state that children under the age of 16 are unable to consent to sex. A proviso could then be inserted to cater for the requirements of the judgment in the Teddy Bear Case. The consequences of such an amendment would be that provision will be made for normal sexual behaviour among peers. The protection of the vulnerable group: children, will be extended to those under 16. The strongest possible message will be sent to predatory adults, because they will only be liable to be convicted of sexual assault or rape and not the softer statutory rape, which has less severe punishment. Further, the implications of the minimum sentencing regime under the Criminal Law Amendment Act 1997 will become applicable. An obvious concern will be what about children under 18 if they are convicted, and the answer is that minimum sentences do not apply to children.

Mr du Preez highlighted that the core of the amendment would be to section 57(1) to state explicitly that children under the age of 16 will be incapable of consenting to a sexual act, but a child between 12 and 16 would only be capable of consenting to sex between the perpetrator who is within three years. The number of three years was used simply as an example, because this was for the legislature to decide. The consequential amendments include: section 1 which deals with the definition of consent; the repeal of sections 15 and 16; possibly to section 56, dealing with defences, to expand the deception defence and there will be transitional provision to ensure on-going cases are prosecuted in terms of the Act as it stands. Finally, an amendment to section 261 of the Criminal Procedure Act which becomes redundant with the repeal of sections 15 and 16.

The Chairperson said when lawyers are trained, it is not compulsory that they study social sciences, despite their having to make laws which affect society. Here lawyers must make laws relating to the capacity of children to consent, which relates to the cognitive development of children, and the question is whether lawyers are competent to decide such things. If a lawyer decides on either 10 or 12, this is surely done arbitrarily and relying on the common law developed in the 12th century does not rely on modern day social sciences. Would it not be appropriate to consult social scientists before making such a decision?

Mr S Swart (ACDP) agreed with the Chairperson and added that there has been a lot of research around this topic for the Teddy Bear Clinic case, with the expert evidence accepted by the court. There would be nothing stopping the Committee from looking into the research itself, although dealing with age limits is always difficult. The South African Law Reform Commission (SALRC) indicated that these ages are practically arbitrary in 1996. He therefore encouraged getting more information from psychologists, along the line of Dr Anik Geevers’ submission. There was also the document presented by Justice Alliance South Africa outlining the inconsistency in ages across the law which is something Parliament may need to look into. He emphasised that the court accepted the expert evidence presented and the state in the Teddy Bear Clinic did not tender expert evidence. He doubted whether it should be accepted as normative that children engage in sexual experimentation, as this is contradictory to certain traditional authorities. He however agreed that the criminal law has not been found to be a deterrent or a solution to the problem and this is what the Teddy Bear Case found.

The Chairperson said the debate was not a reflection on the representatives of Department of Justice and Constitutional Development. Contralesa, the previous day, had said that an overly eurocentric approach and relying on the common law alone, ignores African customary law. African customary law has different ways of dealing with the various stages of development, determining initiation and marriage. This view cannot be ignored, because the Committee cannot make laws which large parts of the country do not view as legitimate.

Ms K Litchfield-Tshabalala (EFF) said this was a complex issue, with no easy answers, but perhaps more engagement will help to sort it out. She felt it unfortunate for African law that we live in a global world and age of consent is set universally, while African culture would often set things contrary to United Nations standards. She agreed that there is a need for further engagement towards a common understanding. Particularly, as it seems that African law is often subservient to the common law.

The Chairperson said that when the international standards were set, Africa was still under colonial rule. The fight for self-determination was therefore a fight towards ensuring Africa is able to make its own contribution.

Mr W Horn (DA) said this again was muddying the water and he asked for the Committee to keep its eyes on the ball. Even Contralesa had supported decriminalisation and therefore the Committee ought to focus on the common threads of the submissions which agree generally with decriminalisation. Therefore, the Committee should start focusing on the requirements of the orders of the Constitutional Court. While he welcomes the proposal from the Department, he felt the Committee had thus far focused on dealing with sections 15 and 16 and he was concerned that if the section 57 option is pursued, then further engagement will be required to determine the legislative process.

The Chairperson said Mr B Bongo (ANC) and himself had participated in a community radio debate, which had shown him that people may sometimes “look beyond the ball” and therefore all angles must be looked at to allow the Members to properly account to the people. Therefore, he requested parliamentary media to ensure all parties were represented in the Committee to hear what the people are saying.

Ms C Pilane-Majake (ANC) welcomed the DoJ proposal and said while on its face one may be concerned that children between the ages of 12 and 16 cannot consent to sexual activity, this is dealt with through section 56 with the close-in-age defence. She agreed that this age gap would have to see further consultation with social scientists, particularly with the questions surrounding the review of the minimum age for criminal capacity. Her question would be whether we would like to treat children in the age bracket as criminals.

Mr B Bongo (ANC) asked about the retrospective effect of the amendment of section 57 in light of the Constitutional Court order, specifically what is happening presently and what is the effect of the judgement. He felt the amendment to section 57 is a progressive move, but as Mr Horn pointed out, the majority of the submissions are in agreement with the present Bill. Further, as the Bill has gone through the cabinet process and public hearings, what would be the implication of changing direction in this manner and would the process not need to be restarted. It would be important to balance the potential solution against the need to fast-track the passing of the legislation.

Adv Bassett replied to Mr Bongo on the legislative process saying that the option was prepared at the request of the Committee. What the Department tabled and is proposing is still the Bill as introduced. As Cabinet has approved the Bill as introduced, it could mean that this whole new line of thinking would have to undergo an entirely new consultative process, potentially including the parliamentary procedure for drastic departures from an Amendment Bill as introduced.

The Chairperson said the proposal was a useful exercise, because it arises from the submissions and deliberations during the public hearings and nobody will be able to claim their opinion was not considered. Such changes [to sections of the principal Act not included in the Amendment Bill] are possible within the parliamentary rules, either through the legislature or Cabinet.

Mr Swart said his understanding was that as it was a departure from the Amendment Bill as introduced the proposal would have to be tabled before the National Assembly to resolve that they accept that change, but it would not need to be subject to a Cabinet process. He also did not feel that public hearings would have to be re-opened, because the option flows directly from the public hearings.

Mr Horn said the fact remained that if the section 57 route is followed, then many of the commentators would still like to express themselves on the matter.

The Chairperson concluded the matter by agreeing and saying that invitations for further submissions should be sent out to some commentators. By the time these have been considered, Parliament would be able to decide on the process to be followed.

Mr Du Preez said as far as capping the ages, the Constitutional Court accepted that this could be done. However, importantly the ages 12-to-16 were accepted as “brightline rules”, which were accepted by the applicants. The judgment itself states that it is not about the age of consent or whether children ought to engage in sex, but was merely dealing with decriminalisation. As far as the common law is concerned it was not immediately accepted, rather it questioned why the Immorality Act provided that a child under 12 is incapable of consenting. Therefore the willingness of the under 12 child is irrelevant for the purposes of convicting an older child for rape. If sections 15 and 16, or section 14 of the Immorality Act, are looked at then it must be questioned whether they create a fiction; because the consent in this regard is irrelevant. The answer to why the legislature decided to deem consent irrelevant for certain persons was that it had tried to fill the gap above the common law rule.

The Chairperson said he felt social scientists were required to deal with concerns around issues such as sexual exploitation where children consent to sex because they need money and such things should be considered by the Committee, before it finalises the issue of ages.

Mr Swart said he would like comment on the submission from the Centre for Child Law (CCL) and for the National Prosecuting Authority to comment on the current proposal. The benefit of the CCL proposal is that it sends out a clear message that child sex is not condoned. Particularly as people are concerned about what decriminalisation means and that in effect children will be allowed to engage in these acts. Secondly, he would like it unpacked why the proposed close-in-age gap is three years, because basically the leap that is being taken is that there is no longer going to be statutory rape and the age gap would include 19 year olds. He did not necessarily disagree, given that a strong message needs to go out that any adult who has sex with a child outside of the condoned age gap, will be charged with rape.

The Chairperson said it would be fair that having requested a proposal and further submissions on the proposal; that the correct time for the questions would be when these submissions are considered.

Mr Swart said the question was for the benefit of his and other Member’s initial understanding of the proposal and it would be good to send out the CCL proposal, barring serious objections from the Department.

The Chairperson said to send out the CCL proposal would be inappropriate, because it would give the impression that the Committee has a position on the proposal.

Mr du Preez answered Mr Swart’s second question, saying that there was no reasoning behind suggesting three years for the close-in-age defence, because it is for Parliament to determine the scope of vulnerability. On an initial reading of the Teddy Bear judgement, it would seem that it dealt with children from 12 to 16, however a strict reading of the judgment targets the criminalisation of children under 16. Therefore, just as the minimum age gap is open for consideration, the criminalisation of children above 16 is also up for debate. If an adult sexually penetrates a 15 year old, this would be the same as if it had been an 11 year old, because consent is irrelevant, leading to a charge of rape or sexual assault. On retrospectively, he said the court order does not deal with adult offenders against children under sections 15 and 16, and the moratorium only deals with the prosecution of children under the age of 16, pending the declaration of invalidity coming into effect after Parliament deals with the constitutional questions.

Adv Bronwyn Pithey, NPA Deputy Director of Public Prosecutions, said it would be more appropriate for the NPA to properly consider the proposal before replying.

A Parliamentary Legal Advisor, said under Rule 249(3)(b) of the National Assembly Rules, the Committee would have to seek the permission of the National Assembly, where it wants to amend a section of the principal Act which was not in the amendment Bill. Therefore, the process would not have to go back to the Department.

Department of Justice and Constitutional Development: Responses to Submissions
Adv Bassett said a document summarising the responses to public submissions had been compiled by the Committee staff and handed over to Mr du Preez to go through the document.

Mr du Preez said on page four of the document the submission was made that the age of sexual consent be increased to 18 years. The Department’s response is that the SALR had stated that age limits are arbitrary, but recommended 16 years, for among other reasons legal certainty, as this has been the age for permitted sexual penetration for 58 years. The Department is necessarily against the raising of consent, however it would extend the space for decriminalisation from at least 12 to 16 up to 18 and thereby making more children vulnerable.

Mr Swart was concerned that due to the thickness of the document, engaging on each individual submission will take very long.

The Chairperson responded that Members should not repeat debates and the discussion should be limited to new issues raised. The Committee should not deal with things that are clear or agreed upon.

Mr du Preez agreed and said he would only highlight relevant issues for the Committee’s attention. From the bottom of page 28 to page 31, there is an extensive response to the South African Catholic Bishops Conference’s suggestion that the age of consent be lowered, which has been dealt with during the briefing on the section 57 amendment. On page 35 on the delegation of the discretion to prosecute under sections 15(2) and 16(2) raised by the Legal Resources Centre and Women’s Legal Centre, the Department’s response was that it is concerned that the centralisation of decision-making may impact negatively on the finalisation of cases.

Adv Bassett said the argument on this point was that the decision to prosecute in the interest of uniformity of prosecutions should be held by the National Director of Public Prosecutions, alternatively to delegate it only as far as the Directors of Public Prosecutions (DPPs). This was a strong objection to the introduced Bill and he would like the NPA to respond on this point.

Adv Pithey responded that the NPA submission of the previous day had indicated that the NPA supports the current formulation in the Bill and an amendment may potentially have to be made to section 66(2)(a)(i) which refers to the NPA directives, which gives guidance on what types of cases are referred to the DPP. There are practical implications for sending these cases to the DPP, including substantial delay and the senior prosecutors do make very serious decisions about whether to prosecute (such as rape and murder) and at the moment the cases sent to the DPP are the more serious cases. This proposal would have an effect on the types of cases referred to the DPP. Although there may be only a few cases under the section, it could lead to significant delays, because the DPPs are dealing with the various cases they are already burdened with.

Ms Pilane-Majake wanted to know how serious offences are defined.

Adv Pithey replied that this means serious cases among all offences, not just sexual offences. At the moment there are provincial instructions from the DPP, which indicates which cases must be referred to the DPP for decision. In the Western Cape this includes child murders and trafficking cases, although they may not necessarily be heard in the high court.

Ms Pilane-Majake said she was under the impression that what is being referred to, is the discretion to place children on the National Register of Sex Offenders.

Adv Pithey said her understanding was that this is dealing with the decision to prosecute children falling outside of the close-in-age defence. However, what has been proposed regarding listing child sex offenders on the register is that the procedural burden be placed on the NPA to make an application for inclusion.

Mr Du Preez said a submission on page 37 from Justice Alliance had proposed deleting the word kissing from the definition of sexual violation. The Department indicates that it does not agree, because it must be remembered that the definitions in the Act apply to all offences made in the Act. Further, the Children’s Institute had proposed on page 38 changing sexual violation to sexual stimulation, however the Department feels it will not be in the interests of legal certainty to change a term which has been in use since 2007. Turning to page 42, the Commission for Gender Equality had indicated that it does not support the proposed amendment of sections 16(1)(b) and they propose that the decriminalisation should extend to 16 and 17 year olds. The DoJ’s response is that 16 and17 year olds are included by the close-in-age defence.

Mr Du Preez moved on to the proposals dealing with the National Sex Offender Register. The South African Human Rights Commission has made a number of proposals dealing with practical concerns about the Register. The Department’s response is that there are structures such as the Inter-sectoral Committee on Sexual Offences, which would be more appropriate for dealing with such practical concerns.

Adv Bassett said no comments had been received on this, but the Constitutional Court had directed the Minister to “take all steps necessary to ensure that where a court had convicted a child below the age of 16 of an offence under sections 15 or 16, or issued a diversion order that the details of the child will not appear in the National Register of Sex Offenders; a certificate of expungement must be issued directing that the conviction or diversion of such child be expunged”. Therefore, the question was whether there is a procedure for expungement, because looking at the Criminal Procedure Act, certain criteria must be met and certain processes pursued to give effect to the order. These processes are not in any legislation and therefore the DOJ proposes a new section 69(A) to deal with the records of children who have been convicted under sections 15 or 16 and similar legislation. There may be very few children and this has not been raised before and needs to be considered by the Committee as it is part of the Constitutional Court’s order.

Mr du Preez said Women and Men Against Child Abuse submitted that there be a separate section for child offenders in the NSOR. The DoJ’s response is that as there are strict confidentiality requirements in the Chapter dealing with the register it is unclear what the rationale would be for having a separate section. The need for guidelines is also unclear as the court would be provided with all the necessary information by the assessments, which is more amenable to the individualised approach which aids the best interests of the child. A similar response was given to the suggestion by GRIP that a separate register for child sex offenders be created. A proposal has been made by the Legal Resources Centre on page 52 that section 52(a) be amended. However the Department has technical concerns with the proposed section including changing the word ‘must’ for ‘may’ will lead to the court having a discretion on the inclusion of all sex offenders’ details on the Register. Here if the provision is to be accepted, it should be contained in the new subsection (c), which creates the exception for the inclusion of child offenders.

Adv Bassett said the CLC had made a proposal on clause 7 regarding the inclusion of a child’s name on the register. The Department’s proposal is “before making an order in terms of paragraph (a) the court must (i) inform a person who was a child at the time of the offence, of the court's ability to make an order and ii) afford the person referred to in paragraph one an opportunity to make representations as to why such an order should not be made”. The CLC supports the amendment as contained in the Bill, but there may be problematic areas. First, the provisions are based on the premise that all sex offenders should be placed on the register, while the Constitutional Court indicated that child and adult offenders are very different and should be treated accordingly. Further, although allowing representations to be made, this places a heavy burden on child offenders. Thirdly, the CLC says the Bill is unclear about whether an assessment should be made before the decision is made and this pays insufficient credence to the judgment. If assessments are to be done who must pay, the state or the child. The present Bill will mean that most child sex offenders will have to be assessed leading to additional expense. Lastly, there should be substantial and compelling circumstances to warrant the inclusion of a child’s name on the register. These circumstances should not be prescribed, but rather the prosecution should apply to have the child’s name included on the Register based on the particulars of the case. The CLC argues that this approach would only target children who pose a risk to society and if the child has to bear the cost, in all likelihood it would be LASA who bears this cost. The DoJ’s response is that it is not necessarily opposed to the recommendation and it will reduce the number of children for assessment. However, DOJ does have concerns including the proposal that this be dealt with in regulations, because this may delay the implementation of the Bill. Further, the stipulation that the assessment must be done by ‘suitably qualified professionals’ begs the question: will professionals be willing or capable of making a conclusive determination that a child will likely re-offend against another child? A similar challenge is faced in proving criminal capacity in children under the Child Justice Act, which requires the state to prove the presence of capacity and there is a requirement of an assessment by suitably qualified persons, as determined by regulations. The Department is looking at broadening the types of persons able to conduct such assessments. To this end a workshop was held and it came out that psychologists and child psychiatrists have great difficulty in conclusively determining the existence of capacity, despite their expertise and resources. The difficulty is therefore who must decide whether a child is going to re-offend. Further, in practice, the prosecution has great difficulty in getting hold of professionals to do such assessments because they are few and the tariff set by the DoJ is relatively low.

Adv Bassett moved on to the proposal by the Legal Resources Centre which proposed that a probation officer conduct the assessment during the pre-sentencing report. Therefore, there is already a system in place to do these assessments, but the question is whether probation officers are qualified to make such assessments, despite their being social workers. This may be preferable, because it makes use of an existing mechanism. Perhaps the issue could be fixed by changing the wording suggested by the CLC, so that the standard of “will reoffend” is relaxed. The Department does support the model proposed by the CLC, but the wording may need to be tweaked.

Adv Pithey said the NPA does experience extensive problems with resources regarding legal capacity reports and because the regulations require the assessments to be done by a narrow band of suitably qualified persons. The next problem is that even where reports on criminal capacity are acquired, the courts and prosecution are battling to properly interpret such reports. If a similar requirement were put into the present Act, then similar challenges would likely be faced. Another concern is that the proposal only stipulates whether the child will re-offend as a criterion for inclusion. There are other criteria that may be relevant to inclusion such as the nature of the offence or the repetition of the offence. Further, ‘will’ is a strong word, which requires one to conclusively predict the future and perhaps this should be changed to ‘posing a risk of re-offending’. She did accept the need for someone who is suitably qualified to make such an assessment, but the workshop spoken of will likely see proposals for persons other than psychologists doing these assessments, such as probation officers. The NPA did feel it is appropriate to have the onus borne by the state and this process would automatically allow the defence to bring evidence countering the prosecution’s application for inclusion on the register. She was very concerned that this proposal would create the same problems as criminal capacity assessments.

Ms Pilane-Majake said perhaps it may work out easier if the responsibility is borne by the state and probation officers are made use of because probation officers are social workers who have done child psychology. Unlike psychologists, these officers may be better placed as they go deeper into the general life space of the child. This would be more valuable than a desk top assessment and would avoid the situation where the state has to find private professionals over persons already in the state’s employ.

Mr Horn said he agreed that whether there will be a re-offending, should not be the only criterion. He also supported the suggestion that probation officers be used, because they are able to make use of psychological assessments.

Ms Robertson wanted to clarify that LASA even where the NPA brings its own psychological assessment, will still potentially bring its own private assessments in defence of the child.

Adv Pithey said she agreed that the cost of the assessment should be borne by the state. What could be done seeing as most offenders will receive a pre-sentencing report, part of which could be a request to consider evidence towards having the child’s details included on the Register.

Mr Bongo requested the DoJ to re-look at the criteria for assessment, because “will re-offend” is too high a threshold. As all that could truly be submitted are probabilities.

Mr Du Preez said the remainder of the proposals in the summary of submissions are ones which will naturally come up in the deliberations of the Committee. In conclusion he said there was a submission that the short title of the Act should be shortened. The Department’s response is that there are a number of reasons why the short title is the way it is. Firstly, the 1957 Act is still in force, the 2007 Act deals with matters aside from sexual offences and the Act was promulgated in 2007, and has been in force for some time, which may endure past the repeal of the 1957 Act.

Adv Bassett said the last issue is the removal of a child’s name from the Register on page 70 of the document. There was support for the amendment generally, but the DoJ would like it noted that the ambit of the proposed new clause 8(2)(a) is limited to those cases where the court has, post the coming into effect of the 2007 Act, ordered the inclusion of names in the register. The provision in the Bill does not deal with the historic cases where particulars were included pursuant to a conviction prior to the 2007 Act. The Department therefore proposed amendment to cater not only for cases under the 2007 Act, but also for similar offences committed prior to the 2007 Act. This will ensure that children who had committed offences under the Immorality Act or similar legislation will also be able to have their details expunged.

The Chairperson declared the meeting adjourned.

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