Criminal Procedure Amendment Bill: Ministry response to written submissions

Meeting report

The delegation from the Department of Justice and Constitutional Development (DoJ) included Mr John Jeffery, Deputy Minister of Justice and Constitutional Development; Adv Henk du Preez, State Law Advisor, DoJ; Ms Mekwa Harriet, Specialist State Law Advisor, DoJ; and Mr Mfuzo Zenzile, Parliamentary Liaison Officer, DoJ.

The Chairperson said Parliament used the recess period to advertise the Amendment Bill and invited public comment through electronic platforms, as well as through national and provincial newspapers. The deadline for written submissions was 12 November 2021, and a total of 55 submissions were received. Members would have received a document outlining all the information on the submissions. There was a submission from the South African National Editors’ Forum, and one from Media Monitoring Africa. There were also 53 individual submissions from the website, with individuals who either supported the Amendment Bill or noted a lack of support for it. In total, six submissions supported the Amendment Bill, while 36 did not support it, and 11 expressed partial support.

Introductory Remarks by the Deputy Minister of Justice and Constitutional Development
Deputy Minister Jeffery said the Amendment Bill is a Bill as provided for in section 75 of the Constitution, meaning the status of the National Assembly (NA) and the National Council of Provinces (NCOP) is different, as it is a national competency Bill. The NCOP does not have the power amend the Amendment Bill, but has the power to make recommendations. It is different to when there is an Amendment Bill under section 76 of the Constitution, where the powers of the two houses of Parliament are equal. When this Amendment Bill was referred to the NA, it was put out for public comment and there was only one comment, from the Child Law Centre. The Child Law Centre is the body which brought the matter to the Constitutional Court in the case Centre for Child Law & Others v Media 24 Ltd & Others ZACC 46, 4 December 2019.

In this matter the Constitutional Court declared section 154(3) of the Criminal Procedure Act 55 of 1977 unconstitutional, and therefore invalid. The issues related to children’s rights and public information.

It is unclear why the South African National Editors’ Forum and Media Monitoring Africa did not make submissions to the NA.

On the matter of Dear South Africa, the Deputy Minister said it is important to support efforts to encourage public participation. It is worrying however to see this Amendment Bill was chosen to promote public comment, since Parliament is limited in what it can do, as the Amendment Bill seeks to implement a judgment of the Constitutional Court. It is necessary for Parliament to engage with Dear South Africa on how the Amendment Bill was represented, since it asked for input regarding if people think the identity of witnesses under 18 years of age should be protected. This is not a factor in the Amendment Bill. It is dealt with in the Criminal Procedure Act. It is necessary to make the process more accurate, as it defeats the purpose of the process to receive submissions which are very vague or which have non-logical statements.

Summary of the Submissions received on the Criminal Procedure Amendment Bill
Adv Henk du Preez and Ms Mekwa Harriet, State Law Advisors, presented the briefing to the Committee, and provided a summary and the DoJ’s responses to the substantive submissions received on the Amendment Bill.

South African National Editors’ Forum Submission
One of the substantive comments received from the South African National Editors’ Forum related to subsections (3) and (3A) on the meaning of “before the conclusion of criminal proceedings”. The commentator said the effect of this phrase is far-reaching and means nobody besides the South African Police Services (SAPS) may publish any identifying information about a potential child victim of crime. This would ban the publication of missing child alerts on social media, and the ban would apply even if there were no criminal proceedings. This is a drastic limitation on free speech which does not appear to have any rational relation to the protection of the child’s dignity, privacy, or the child’s best interests.

This can be cured by the removal of the word “before” from the phrase. Circumstances listed must be present in respect of every category of children in criminal proceedings, before the information revealing the identity of the child may be published by the police or any authorised person. It is also important to note criminal proceedings commence before the actual trial gets underway. Allowing any form of publication before the trial commences without any justification has the potential of frustrating ongoing investigations and the administration of justice. It is only under exceptional circumstances where publicising the identity of a child can be allowed.

The DoJ is of the view any genuine complaint about a missing child would be formally reported to the SAPS for formal processing and necessary investigations to be carried out. Nothing precludes a family or interested parties from launching a search for missing children. SAPS would give formal guidelines regarding the extent to which the general public can be involved in handling an issue involving missing children. This is not a drastic limitation on free speech. In some instances, any limitation of rights is a justified limitation according to section 36 of the Constitution, especially if the limitation would be in the interests of the child. After all, no rights are absolute. The government does not support the proposed removal of the word “before”.

The second submission received from the South African National Editors’ Forum related to the phrase “after the conclusion of criminal proceedings.”  It has the effect of making the default position a permanent protection of anonymity in all cases, from which the court has the discretion to depart if it is just and equitable to do so. This means a protected person can never consent to the person’s own identification unless the person first obtained a court order authorising the person to identify themselves. This is not changed by subsection (3B), which applies where the court has granted an order extending into adulthood.

The DoJ said it is not likely the court will have granted such an order, as the default position is the identification ban is permanent. An accused, witness, or person against whom an offence has allegedly been committed, who is under the age of 18 years at the time of the commission of the offence, does not forfeit the protection of anonymity afforded by section 154 upon the attainment of the age of 18 years. This protection is ongoing unless the court authorises the publication of such information about the child. A person may consent to the publication of the person’s identity after reaching the age of 18 years, or if consent is refused, the person’s identity may be published at the discretion of a competent court. Consent is not the sole criteria for the publication of such information. Proposed subsection (3B) requires the courts to be satisfied the accused witness or a person against whom an offence has been committed understands the nature of the order.

On the third submission received, the South African National Editors’ Forum said the Amendment Bill’s provision for exceptions to the identification ban is far narrower than ordered by the Constitutional Court’s judgment. This is because its interim order provided that authorising post-adulthood identification would only be required if the protected person does not consent to the identification.

The DoJ gave the same response to this submission as it did to the submission relating to the phrase “after the conclusion of criminal proceedings”.

Another submission from the South African National Editors’ Forum said the Amendment Bill presently limits the child-turned-adult’s rights to privacy, dignity, and freedom of expression. It was submitted the extent of the limitation is far-reaching, as it places the onus on the person to approach and convince a court the person should be permitted to tell the person’s own story. This harsh reality is compounded by the limited legal aid for civil litigation in South Africa.

The submission and said the Amendment Bill currently provides for a child accused, witness, or person contemplated in subsection (3)(a)(iii) to be able to reveal the person’s own identity without needing a court order, except if there was a court order authorising this protection. It is recognised the process will otherwise be cumbersome to discharge. As a result, there is no need to rush to the courts when matters of this nature are required to be addressed. There would not be a need for legal aid.

The current Amendment Bill completely deprives the child-turned-adult of agency and autonomy in telling the person’s own story, and places it in the hands of the courts.

The DoJ said a child accused, witness, or person contemplated is not deprived of autonomy of telling his own story as anyone is empowered to reveal his own identity without needing a court order, except if there was a court order authorising the person’s protection.

The South African National Editors’ Forum also submitted the word “before” should be deleted from the new subsection (3).

The DoJ did not support this submission as the provision is comprehensive enough to deal with issues relating to children and the law.

The last submission proposed subsection (3B) should be amended by deleting paragraph (a) and replacing it with a paragraph which reads: “If a person contemplated in subsection (3)(a) has attained the age of 18 years, but has not consented to the publication of information which may reveal their identity, the High Court before which or in whose area of jurisdiction the criminal proceedings contemplated in subsection (3) may on application of an interested person grant an order authorising such publication.”

The DoJ did not support this submission as the provision in its current form in the Amendment Bill offers much needed protection to children in criminal trial proceedings.

Media Monitoring Africa Submission on the Amendment Bill
The first submission related to subsection 3(a) and the phrase “before, during, or at any stage after the conclusion of criminal proceedings”.

To ensure there is no uncertainty or confusion regarding when the protection contained in the provision begins to apply, the provision had to be reworded to include the phrase “from the moment a person under the age of 18 is reasonably likely to become involved in criminal proceedings, including the time at which an offence is committed, the period prior to charges being laid, and the time a charge is laid”.

The DoJ said the provision is clear and unambiguous, and the ambit of it encompasses the proposed amendments. The proposed amendment merely confirms the current provision as regulated according to section 154 of the Criminal Procedure Act.

The second submission related to the phrase “just and equitable and in the interest of any particular person”. Media Monitoring Africa said the threshold in section 3(b) should be expanded to strike a balance between freedom of expression and the rights of privacy, dignity, and the best interests of the child. The proposed amendment does not use non-binary language and said the Committee proposed similar amendments to the Domestic Violence Amendment Bill. Section 3(b) should be amended to reflect the applicable interests.

The DoJ said the proposed amendment entails what will in the normal course of events be taken into consideration by the courts. It is trite that the best interests of a child are of paramount importance and should be considered before the decision is taken. The DoJ said the wording “in the interest of any particular person” is wide enough to cater for the proposed amendment, and therefore did not support the proposed amendments. The DoJ is well aware there is a need to use non-binary language, and this matter should be considered in the future when the Criminal Procedure Act is amended in its entirety.

Regarding the proposed new subsection (3A), Media Monitoring Africa submits the power to authorise information to be made available should be given to station commanders and the media should be included in the proposed amendment. This will ensure close cooperation between the SAPS and the media, in the interest of the children concerned.

The DoJ was of the view the National Commissioner of Police should decide how and to whom to delegate power, and could decide to make information available. This will ensure the necessary guidance will be given to those who are delegated to decide to make information available and will ensure uniformity across the country in the exercise of the power concerned. To include specific reference to the media in the provision concerned will merely confirm an existing standard practice.

The DoJ did not support the proposals.

Another submission by Media Monitoring South Africa noted concern about the wording of section (3B)(a) regarding the court granting an order which extends into adulthood, as possibly creating confusion.

The DoJ said this concern is similar to the concern noted by the South African National Editors’ Forum and gave the same response as outlined earlier.

Media Monitoring South Africa also made a recommendation regarding the courts taking into consideration factors such as the best interests of the child, to the extent persons under the age of 18 will be affected by the publication of such information, and outlined factors which should be considered by the courts.

The DoJ noted said the list in the proposed section is open-ended to allow the courts to take all relevant factors into consideration, on a case-by-case basis.

Regarding the submissions received which were not accompanied by substantive comments, the DoJ said there was support for the Amendment Bill. The submissions which did not support the Amendment Bill did not substantiate its positions. Overall, the DoJ did not support the submissions received on the Amendment Bill.

Discussion
The Chairperson noted the Deputy Minister’s comments about the Dear South Africa website and said the Committee has been trying to get around to it administratively, and it will be addressed. She said the issues dealt with in the current meeting were addressed in previous meetings.

Ms M Bartlett (ANC, Northern Cape) referred to pages six to eight of the document presented by the DoJ, and asked the DoJ to present the correct version of the South African National Editors’ Forum’s submission to the Committee, which submission related to the South African National Editors’ Forum’s proposals for subsection 3B of the Amendment Bill.

The DoJ said the South African National Editors’ Forum’s last submission suggested the rewording of paragraphs (a) and (b). It suggested paragraph (a) should be removed completely, and replaced with a paragraph which reads: “If a person contemplated in subsection (3)(a) has attained the age of 18 years, but has not consented to the publication of information which may reveal their identity, the High Court before which or in whose area of jurisdiction the criminal proceedings contemplated in subsection (3) may on application of an interested person grant an order authorising such publication.”

The DoJ did not support this submission, saying the provision in the Amendment Bill in its current form offers much needed protection to children in criminal trial proceedings.

The Chairperson said, based on the absence of further comments by Committee Members, the Committee is satisfied with this version of the Amendment Bill. The Committee duly adopted the Amendment Bill and the DoJ was excused from the meeting.

Report of the Select Committee on Security and Justice on the Criminal Procedure Amendment Bill [B12B - 2021] (National Assembly – sec 75)
The second item on the agenda was for the Committee to consider and adopt its report on the Amendment Bill. The Committee’s Report on the Amendment Bill was tabled for consideration by Members.

There was a public participation process. The Committee invited stakeholders and interested persons to make written submissions by publishing the advertisement on Parliament’s electronic platforms from 14 October to 12 November 2021, and in national and provincial newspapers from 28 October 2021.The deadline for written submissions was 12 November 2021.The Committee was briefed on the Amendment Bill on 10 November 2021, and had a further briefing from the DoJ and its responses to said submissions. Members were satisfied with the DoJ’s responses to the submissions.

In its report on the Amendment Bill, the Committee recommended Council pass the Amendment Bill without proposed amendments. The Committee duly adopted its report.

In other matters, the Committee considered and adopted outstanding minutes.

The meeting was adjourned