Criminal Law (Sexual Offences) Amendment Bill: deliberations

Meeting report

JUSTICE PORTFOLIO COMMITTEE
19 October 2006
CRIMINAL LAW (SEXUAL OFFENCES) BILL

Chairperson: Ms F Chohan (ANC)

Documents handed out:
Working draft of Sexual Offences Bill as of 10 October 2006
Criminal Law (Sexual Offences) Bill [B50-2003]
Revised Schedule to the Bill

SUMMARY
Clause 53(3)(a) provided that the provision of 53(2)(b) would not apply if the accused was related to the child within the prohibited incest degrees of blood, affinity or an adoptive relationship. The Chairperson said that the incestuous degree was not actually the point in relation to clause 53(2)(b). The point was that there was a close relationship. The defence in (2)(b) should not be available to somebody who was in a close relationship with the child even if that person had managed to prove that he did not know that the child was under the age of 16. Every family member should know about the child's age. Sub-clause (3) should provide that the provisions of sub-clause (2)(c) would not apply if the accused person was related to the child, a family member or in an adoptive relationship with the child. It would then be left to the courts to interpret the clause. It would not be a train smash should the Committee decide to remove the defence.

The South African Law Reform Commission said that what was useful in the defence in its current form were the words "to contend that he or she reasonably believed". The words would force the courts to apply an objective test: the reasonable man test. The court might use another test that might not be as strong as the reasonable man test should the defence be removed completely. The advice would be to retain it. The Committee agreed to retain the defence.

The Committee had requested the drafters to look at the English advances taking placing with regard to double jeopardy. Clause 56(4) confirmed what was already contained in the Constitution in relation t double jeopardy. A person could not be tried on the same charge if he had been acquitted or convicted on an earlier occasion. The situation in the UK was that there was a schedule of crimes in relation to which fresh charges could be brought even if the accused had already been acquitted provided there was new and compelling evidence or it was in the interest of justice to start a fresh trial. One could apply to the High Court for the squashing of the acquittal and then retry the person. The process was not only in relation to sexual offences. The Committee decided that should not be deleted.

In relation to Clause 59, Ms Camerer said that the Committee had always legislated for the establishment of committees in terms of various legislation. The problem was that meetings of committees never took place as required. She felt that the inter-sectoral committee to be established in terms of clause 58 should report to Parliament on what it had done otherwise Parliament would have no idea of what was happening. Parliament would be able to exercise oversight in this way. She referred to a number of Committees that had been established but never met. The Chairperson said that one could not have the Committee reporting to Parliament since it was supposed to operate in particular manner and report to the Minister.

Ms Camerer said that the Committee had received submissions on clause 66 in relation to mental disability. There was a suggestion that the Bill should refer to persons with mental disabilities. A person was mentally disabled if he or she was completely out of it. A person who had mental disabilities was not really out of it and could be sorted out. The Chairperson said that the Committee had decided to refer to persons who were mentally disabled. The reason for doing so had nothing to do with the implications or extent of the disability. There was a submission to the effect that referring to a mentally disabled person amounted to almost reducing to a person to an object. It was argued that it was more correct and sensitive to refer to the person the first and then the mental disability. There was some discussion on what was entailed in mental disability. There was a range of mental disabilities and the intention was not to refer to every case of mental disability. The Bill focussed on a category within the broader category of mental disability. The Committee had decided to define what was meant by "a person who is mentally disabled" for the purposes of the Bill.

MINUTES
The Committee continued with its discussions on the Bill. Mr H du Preez (Senior State Law Advisor, Department of Justice), Mr Lawrence Basset (Chief Director, Legislation, Department of Justice), Mr H Potgieter (SALC) and Ms D Clark (SALC) attended the meeting. Mr du Preez took the Committee through the Bill from clause 17.

The Chairperson said that there would be no meetings on Monday and Tuesday since she would be away. Monday or Tuesday would be Eid. There would be meetings on Wednesday and Friday.

Clause 53 Defences
Mr Basset said that yesterday's meeting adjourned when the Committee was still discussing clause 53

The Chairperson said that Ms S Camerer (DA) had made a valid point in relation to clause 53 during yesterday's meeting. Every family member should know about the child's age. They would know that the child was under age even if they did not know the specific age. Incest was a limitation in the family relationship downward, upward and sideways in relation to brothers and sisters. It did not include people who were second cousins removed. Referring to incestuous relationship would exclude cousins who ought to know that the child was under age. It was not a train smash to remove the defence completely because the issue would turn on factual evidence. She could not see any court believing that the uncle did not know that the niece was 12 years old.

She said that sub-clause (3) should provide that the provisions of sub-clause (2)(c) would not apply if the accused person was related to the child, a family member or in an adoptive relationship with the child. It would then be left to the courts to interpret the clause. She was of the view that the defence was not necessary. The incestuous degree was not actually the point. The point was that there was a close relationship. It should not be applicable to somebody who was in a close relationship even though the accused had managed to prove that he did not know that the child was under the age of 16. She changed her mind and decided that the defence should not be deleted. Sub-clause (3) should only refer to sub-clause (2)(b).

Mr Basset reminded the Committee that the drafters had promised to consult with the State Law Advisers on sub-clause (2). He asked Mr Potgieter to brief the Committee on the outcome of his meeting with the State Law Advisors.

Mr Potgieter said that the State Law Advisors were of the view that it would not be a train smash should the Committee decide to remove the defence. What was useful if the defence in its current form were the words "to contend that he or she reasonably believed". The words would force the courts to apply an objective test: the reasonable man test. The court might use another test that might not be as strong as the reasonable man test should the defence be removed completely. The advice would be to retain it.

Clause 55B Court may not treat evidence of complainant with caution solely on account of nature of offence
The Chairperson asked why the words "and the fact that the witness is the complainant in such proceedings" had been deleted.

Ms Clark replied that the feeling of the Committee was that it was not necessary to repeat those words.

The Chairperson remembered that the words were superfluous because the clause already indicated that it was dealing with the evidence of a "complainant" in criminal proceedings.

Clause 56Extra-territorial jurisdiction
The Chairperson asked how a person could commit a sexual offence against a company. Reference to sub-clause (1)(d) and (e) and the word "entity" should be deleted in sub-clause (2)(a).

Mr du Preez said that the Committee had requested that sub-clause (4) should be put in brackets. This was a matter that still had to be considered by the Committee. Ms Clark might want to add something in relation to the principle of double jeopardy. The Committee had requested the drafters to look at the English advances taking placing with regard to double jeopardy.

The Chairperson said that the English jurisdiction was saying that it was okay to proceed with the proceedings even if the person had already been acquitted.

Ms Clark said that sub-clause (4) confirmed what was already contained in the Constitution. A person could not be tried on the same charge if he had been acquitted or convicted on an earlier occasion. The situation in the UK was that there was a schedule of crimes in relation to which fresh charges could be brought even if the accused had already been acquitted provided there was new and compelling evidence or it was in the interest of justice to start a fresh trial. One could apply to the High Court for the squashing of the acquittal and then retry the person. The process was not only in relation to sexual offences.

The Chairperson said that the clause should not be deleted. The drafters should remove the brackets and question marks.

Clause 57 National policy framework
The Chairperson noted the addition of the Minister of Education in sub-clause (1). Part of the information around services and facilities should incorporate children at school. The clause referred to the enhancement of service delivery by the development of a plan for the progressive realisation of services for victims of sexual offences within available resources. The Minister of Education had little to do with this.

Mr du Preez said that the intention was to have the Minister involved in at least the consultation process leading up to the formulation of the policy.

The Chairperson did not think it was necessary to refer to the Minister of Education in this clause. The Minister could be referred to in some other clause particularly in terms of the dissemination of information. The intention was to get to a point where children at school were taught things like how to respect each other’s space or how to behave if something had happened. This had nothing to do with the development of the national policy framework of enhancing service delivery.

Mr du Preez said that it might be better to insert the Minister or Director General of Education in the national instructions and directives provision.

The Chairperson said that the Committee would think about the proposal.

Clause 58 Establishment of Inter-sectoral Committee
The Chairperson asked if the drafters wanted to refer to the Director General of Education in this clause. She was worried about referring to the Minister or the Director General of Education in this clause because the Inter-sectoral Committee would meet twice a year and this might present problems to the Department of Education.

Clause 59 Meetings of Committee
The Chairperson noted that there was a footnote in sub-clause (3) that indicated that the Committee still had to consider the provision.

Ms Camerer said that the Committee had always legislated for meetings but the meetings never took place. The Committee should report to Parliament on what it had done otherwise Parliament would have no idea of what was happening. Parliament would be able to exercise oversight in this way. She referred to a number of Committees that had been established but never met.

The Chairperson said that one could not have the Committee reporting to Parliament since it was supposed to operate in particular manner and report to the Minister.

Mr du Preez said that the concern might be addressed in clause 60(3).

The Chairperson read clause 60(3) and said that the national policy framework should be established within one year of the implementation of this Bill. She thought that one could not have the meetings of the Committee happening outside the policy framework. She also thought that the meetings of the Committee would help to devise the framework.

Clause 61 National Instructions and directives
The Chairperson said that sub-clause 2(a)(ii) should open with the words "the criteria and circumstances in" and not the "circumstances in and the criteria by".

Mr du Preez said that there was a consequential deletion in sub-clause 2(a)(vi) of the words dealing with consensual sexual assault". The Committee had instructed that these words should be moved to clause 15. Clause 15(2) dealt with the issue of deciding whether prosecution should be instituted for consensual sexual violation of a child if both partied were children at the time of the alleged commission of the offence. The Director of Public Prosecutions should make the decision.

The Chairperson said that clause 15(2) was not the crime itself but merely provided that there should be authorisation before proceedings could be instituted. She could not remember why the Committee had instructed that the words should be deleted. The deletion of the words seemed no longer logical.

Mr du Preez said that the agreement was that the words "consensual rape" and "consensual sexual assault" could be used in the headings of clauses 14 and 15 respectively but should be deleted in the clauses themselves. The words were deleted because they did not appear in the substantive parts of the clauses anymore.

The Chairperson said that the deletion should be reversed but the words "sexual assault" should be replaced by "sexual violation". The drafters should consider removing the words "consensual sexual assault" from the heading of clause 15 so as to avoid confusion.

Mr Basset asked if the words "consensual rape" should also be deleted from clause 14.

The Chairperson replied that there was little possibility for confusion in clause 14. The problem with clause 15 was that there was a substitution of "violation" by "assault". The insertion of the words "consensual sexual assault" in the heading created two terms for the same crime. The drafters could consider keeping reference to "consensual rape" because there was no replacement of a word by another word in clause 14. The crime was having consensual sex with a minor and there would be little confusion than in clause 15.

The Chairperson said that 61(1)(a)(v) had been deleted and a new (1A) added. Clause 63(1)(A) should also refer to the manner in which the tests results should be disclosed to the victim and the accused.

The Chairperson noted that there were question marks in sub-clause (3). The question was whether to use the term "medical practitioners" or "health care practitioners".

Mr Basset said that the issue was wider than what the Chairperson had said. Medical practitioners were essentially medical doctors but there were people who worked for the Department of Health who might not be doctors themselves. There might be directives issued to people who were not medical doctors.

The Chairperson asked if it would not be better to refer to "medical practitioners and health care practitioners".

Mr Basset wondered if the clause should not even go wider than the suggestion by the Chairperson.

The Chairperson suggested the addition of the words "or any other relevant persons". One of the problems one that the Committee did not even know what was meant by "medical practitioners".

Mr B Sibanyoni (ANC) asked if it would not be better to refer to any delegated person. The person would then have to be delegated or authorised by the medical practitioner.

The Chairperson was reluctant to go with the suggestion by Mr Sibanyoni. The Committee should avoid a situation where a person would go to court and claim there was no authorisation or delegation. It was better to deal with the matter through directives that would be published and be out in the public domain. She said that the question marks should be deleted from the clause.

Mr Basset suggested that sub-clause 3(a)(ii) should read "the manner in which court orders for compulsory HIV testing must be executed" and not refer to medical practitioners and health care practitioners. The Chairperson had no problems with the suggestion.

Clause 64 Transitional provisions
The Chairperson asked the drafters to check if this clause should refer to clause 63(1)(b).

Mr Basset said that the drafters would check all the references and cross-references when they clean the Bill.

Clause 66
The Chairperson noticed that there was a change in wording in sub-clause 3(b)(vi) in relation to persons with mental disabilities.

Ms Camerer said that the Committee had received submission on mental disability. There was a suggestion that the Bill should refer to persons with mental disabilities. A person was mentally disabled if he or she was completely out of it. A person who had mental disabilities was not really out of it and could be sorted out.

The Chairperson said that the Committee had decided to refer to persons who were mentally disabled. The reason for doing so had nothing to do with the implications or extent of the disability. There was a submission to the effect that referring to a mentally disabled person amounted to almost reducing to a person to an object. It was argued that it was more correct and sensitive to refer to the person the first and then the mental disability. There was some discussion on what was entailed in mental disability. There was a range of mental disabilities and the intention was not to refer to every case of mental disability. The Bill focussed on a category within the broader category of mental disability. The Committee had decided to define what was meant by "a person who is mentally disabled" for its purposes.


The Chairperson referred the Committee to sub-clause (5). The mere fact that a person had been trafficked did not meant that he or she could get away with murder or rape, for example. The clause would be restricted to "any migration related offence or prostitution".

Schedule 1
Mr Potgieter said that all changes since the last meeting on the Schedule were in grey highlighting. He proposed the deletion of the number "1" just after the word "Schedule" because there was only one Schedule to the Act.

Magistrate's Courts Act 32 of 1944
Item 2
Mr Potgieter said that the Committee had requested the drafters to refer the proposed item 5 that referred to indecent assault. Section 93ter (2) of the Act had not yet come into operation.

Correctional Services Act 8 of 1959
Item 1
Mr Potgieter said that there was reference to an "assault of a sexual nature". He proposed that this should be changed and refer to "sexual assault, compelled sexual assault or compelled-sexual assault".

The Chairperson "sexual assault, compelled sexual assault or compelled-sexual assault" were not similar to what the drafters of the Act had intended to mean by an assault of a sexual nature. What was sexual assault in terms of other legislation would not necessarily be sexual assault in terms of this Bill.

Mr Potgieter said that sexual assault was the common law offence of indecent assault and the Bill was repealing this offence.

The Chairperson said that it was incorrect to substitute sexual assault for something that was fundamentally different. She asked what was the correctional services aspect that was related to Schedule 2 of the Act.

Mr Potgieter replied that it pertained to children who were between the age of 14 and 18 years. Such children could be detained in prison if they had been accused of offences listed in the Schedule. They could be detained in prison pending trial.

The Chairperson asked how the Act defined children.

Mr Potgieter replied that the old Correctional Services Act had been repealed by a new Act. This Schedule and one section remained in the 1959 Act. He thought that if referred to children under the age of 18 years.

The Chairperson asked Mr Potgieter to look at how the Act defined the children.

Mr Potgieter said that the Schedule of the Bill would apply to children between 14 and 18 years.

The Chairperson read through clauses 5, 6 and 7 and decided that "assault of a sexual nature" should not be substituted.

Prescription Act
Item 1(b)
Mr Potgieter said that there was a deletion of the words "sexual abuse and "physical".

The Chairperson asked why the word "physical" had been deleted.

Mr Potgieter replied that only the mental condition was relevant.

Criminal Procedure Act 51 of 1977
Item 1 (h)
Mr Potgieter said that section 18 of the dealt with offences that could not prescribe. He proposed the addition of the trafficking in persons for sexual purposes. The Committee agreed.

Item 5(a)
Mr Potgieter said that there was an option in terms of how to draft the propose amendment. The word "sexual act" was used in previous occasion and it included both acts of sexual penetration and sexual violation. Section 153 of the Act dealt with in camera proceedings.

The Chairperson asked why the Bill should not refer to "sexual offence" and to "sexual Act".

Mr Potgieter replied that it was restricted to "sexual act" because the Act formally referred to "indecent act" and not "an offence of indecent nature".

The Chairperson felt that the Bill should refer to "any offence related to a sexual act" and not just say "any sexual act".

Mr Potgieter said that the word "sexual act" was defined in the Bill.

The Chairperson agreed and added that a sexual act was not necessarily a crime. Why would there be in camera proceedings if there was no crime.

Mr Potgieter replied that the opening words of the provision read "in criminal proceedings relating to a charge that the accused committed or attempted to commit". He thought that the option to paragraph (a) could be better because it referred to a sexual offence.

The Chairperson said that the option referred to specific offences but did not refer to offences like sexual grooming. She said that the drafters should use the word "sexual offence" because it was defined in the Bill. The option should fall away.

Item 5(b)
Mr Potgieter said that this item would also refer to a "sexual offence" as opposed to a "sexual act".

The Chairperson asked what was meant "procuring a sexual offence". She felt that the intention was to deal with accomplices. She was not sure why the drafters had added the word "procuring". The word should be deleted and the option to the provision should fall away.

Item 6(b)
Mr Potgieter said that this provision dealt with a compensation award. The Chairperson was uncomfortable with the compensation award or the quantum of damages.

The Chairperson was still worried about the quantum but decided that the provision should not be deleted.

Item 7
Mr Potgieter proposed an amendment to section 158 of the Act. The section dealt with close circuit provision. The amendment would oblige courts to provide reasons when refusing an order for the application of close circuit television.

Item 9(b)
Mr Potgieter said that courts should also give reasons for refusing applications for the appointment of intermediaries.

Item 9(c)
Mr Potgieter said that the drafters had deleted a portion relating to the failure of the intermediary to appear in court. The Chairperson had asked the drafters to look at a similar provision in relation to lay assessors. This has lead to the formulation of the proposed item 9(d).

The Chairperson asked why the court should give reasons for calling an intermediary to come and advance reasons for being absent. She said that reasons were only needed in relation to the proposed (9)(c)(iv).

Item 10
Mr Potgieter pointed the deletion of those sections of the Sexual Offences that the Bill was repealing in paragraph (g). These were section 9, 11 and 13. The Committee had instructed that the sections should be replaced by something similar to them. This was the reason for the proposed paragraph (gA) that dealt with sexual exploitation and the grooming of both children and mentally disabled persons.

The Chairperson asked the drafters to remind the Committee of the provisions of sections 9, 11 and 13 of the Sexual Offences Act.

Mr Potgieter replied that the title of section 9 was "parent or guardian procuring the defilement of a child". Section 11 dealt with the conspiracy to defile and section 13 was concerned with statutory abduction.

The Chairperson noted that the intention was to replace them by exploitation provisions.

Mr Potgieter agreed. The intention was to make the provision broader because the Act did not have the exploitation and grooming provisions.

The Chairperson asked if the provision was about competency and compellability to give evidence in a husband and wife situation and where the victim was the parties' child. She also asked if the provision was concerned with grooming in relation to children.

Mr Potgieter replied that people with mental disability were also covered.

The Chairperson understood Mr Potgieter to be saying that and husband and wife would be competent and competent to give evidence if there was sexual grooming of a person with a mental disability or a child. The clause should clearly indicate that it applied if an offence had been committed against the child of either of them or in the care of them.

Mr Potgieter said that the clause meant that a wife could be competent and compellable to give evidence if the husband had committed an offence against a mentally disabled person. It did not have to be a child of either of them.

The Chairperson said that Mr Potgieter was changing things drastically. She did not understand the principle of competence and compellability to encompass what Mr Potgieter had just said. The principle pertained to privilege. The principle was designed to counter the privilege and provided that the privilege did not hold water if an offence had been committed against their child or a child of either of them. Mr Potgieter was extending the principle to a third person. The best that could be done under the circumstance was to extend the principle if the child was no longer 18 years but was mentally disabled. She asked what were the contents of section 2 of the Sexual Offences Act.

Mr Potgieter replied that it dealt with keeping of a brothel. Any person who kept a brothel could be guilty of an offence.

The Chairperson asked if the accused had to be the husband or the wife of the accused. She asked what was contained in sections 10, 12, 12A, 17 and 20 of the Sexual Offences Act.

Mr Potgieter replied that section 10 dealt with procuring or attempting to procure any female to have unlawful carnal intercourse. Section 12 dealt with detention for purposes of unlawful carnal intercourse.

The Chairperson asked if "detention" amounted to abduction. Mr Potgieter agreed.

Mr Potgieter said that section 12A dealt with assistance for purposes of unlawful carnal intercourse. Section 20 dealt with people who lived on earnings from prostitution and committing or assisting in the commission of indecent acts. Section 17 dealt with an owner or occupier who had permitted, in his premises, the defilement of a female or any offence in terms of the Act.

The Chairperson guessed that the property was linked back to the marriage or marital house. There was some connection at all times except for prostitution. Clauses 16 and 17 dealt with sexual exploitation and sexual grooming of a child.

Ms Camerer said that the definitions section of the Sexual Offences Act seemed unchanged except for the addition of the definition of "person". There was still reference to coloured and white persons even though the definitions were no longer there. She wondered if the Committee could not get rid of the references for good.

Mr Potgieter replied that it was clear that the definitions had been deleted. It was strange that there was still reference to terms like "coloured persons". There was also at the same time indication that the definition of the term itself had been deleted. The remainder of the Act would still be part of the SALC investigation into the law of adult prostitution.

The Chairperson asked there would be no implications for deleting reference to terms like coloured and white persons.

Mr Potgieter replied that there would be no problem since the definitions had already been removed.

Mr Basset said that the definitions had already been deleted. He thought that Butterworths or Juta had retained the references in question.

The Chairperson asked Mr Potgieter to refresh the Committee's mind on the contents of section 9, 11 and 13 of the Sexual Offences Act.

Mr Potgieter said that section 9 dealt with a parent or guardian who had procured the defilement of a child or ward.

The Chairperson said that there was a link to the child. An example could be made of a parent who had allowed the sexual exploitation of a child. The Bill made no reference referred to somebody who had allowed a child to be used for sexual exploitation.

Mr Potgieter replied that the situation was covered in clause 16.

The Chairperson said that the clause did not specifically identify the parent as the person who was furthering the crime. This implied that it was sexual exploitation of any child and the wife should be competent and compellable to give evidence. There was a broadening of the principle. The Chairperson said that reference to clause 16 in paragraph (gA) should not exclude clause 16(3)(a) and (b). There should be an equivalent removal of sub-clause (3)(a) and (b) in relation to reference to clauses 23. There was an expansion of the principle and the Committee could get away with it because one was talking about vulnerable groups. The principle was being extended to children who were not children of the couple in relation to sexual grooming and sexual exploitation but not rape.

Ms Clark did not think that paragraph (gA) was linked to the couple's child. It was relevant whenever a person was an offender for any of the crimes.

The Chairperson said that the point was that none of the provisions listed dealt with rape. The issue was the privilege between a husband and wife. The links around the exception always came back to that relationship. The child should be related to the individual concerned in the form of parental relationship or caregiver. The Committee would put this issue in a resolution and see if there could be an expansion at a later stage. She was also concerned why a wife was not compellable and competent to give evidence against a husband who was a paedophile and yet she was competent and compellable where the husband used the services of prostitute.

The meeting was adjourned.