Chairperson and hon Members of Parliament, in this debate I am focusing on evidentiary matters as contained in chapter 7 of the Bill. In this regard, the Bill provides for the following. In section 58, it talks about evidence of previous consistent statements. This section permits courts to admit evidence of previous consistent statements in sexual offences, on condition that the courts should not draw a negative inference if no previous consistent statement was made. The effect of the previous statements is to support or corroborate the evidence given by the complainant in court. Such negative inferences are currently drawn, which result in the complainant being viewed with suspicion and disbelief, just because the complainant failed to report, at the first opportunity, the sexual act to any person in whom the complainant confides. This practice originated in medieval England where the perpetrator could defend himself on the grounds that the women did not raise the so-called "hue and cry" immediately after the alleged rape.
Section 59 deals with evidence of delay in reporting. The delay in reporting a sexual offence may no longer be held against the complainant. Not even the length of the delay may militate against the complainant's case. The Bill provides as follows, and I quote: ... the court may not draw any inference only from the length of any delay between the alleged commission of such offence and the reporting thereof.
Currently and previously, courts treated allegations of sexual misconduct with suspicion and where the complaint was reported earlier, it served to rebutt the suspicion in establishing a lack of consent. I quote section 60, which says that a court:
... may not treat the evidence of a complainant... with caution, on account of the nature of the offence.
This section creates certainty that the cautionary rule is no longer part of our law in South Africa. The section prohibits courts from treating the evidence of a complainant with caution for the reason that it relates to a sexual offence. The cautionary rule has been used in the past to test the evidence of complainants, mostly in rape cases. Whilst the rule provided a safety valve against false accusations of rape, it has been viewed as unfair to victims of rape when they are subjected to the test as to whether their complaints are genuine. It has also been regarded as discriminatory against women as most rape victims are women.
The law before 1998 was that there was a duty on the court to recognise the dangers or risk in relying on the evidence of a single witness, accomplices and witnesses in sexual offences. Courts sought some safeguard that might have the effect of reducing the risk of a wrong conviction. The effect of the cautionary rule was that magistrates or judges must be cautious when they analyse the evidence of a rape victim.
In conclusion, I want to say ...
... njengombana sibandamela emalangeni alitjhumi nasithandathu (16), weJima lokuLwisana nokuTlhoriswa kwaboMma nabeNtwana, kulitjhudu namhlanjesi sikhuluma begodu siphikisana ngomThethomlingwa lo. Umthetho lo uzakusiza ukulwisana nemiguruguru eqaliswe ebantwaneni nebantwini bengubo.
Abomma bafumana ubudisi ngekorweni yokusegela namkha ngekhotho. Ngebanga lokuqalisiswa khulu namkha lokuphenyisiswa khulu kobufakazi bukangazimbi okatiweko namkha otlhoriswe ngokomseme, abomma abanengi bayasaba ukuvela ngaphambili, babike bonyana bakatiwe.
Umphakathi esiphila kiwo uyakhethulula ngehlangothini labomma. Umthetho kufuneka ubavikele. UmThethomlingwa lo uzobakhuthaza bona bakhulume, balise ukuthula njengombana vane batjho bathi "Break the silence!" Ngamanye amezwi "Khuluma." (Translation of isiNdebele paragraphs follows.)
[... as we are getting closer to the 16 Days of Activism, a campaign to fight against children and women abuse, it is a pleasure today to talk about and debate this Bill. This Act will help to fight against women and child abuse.
Women experience difficultly in courts regarding the way they are cross- examined and the way in which investigations with regard to sexually abused victims are conducted. Most women are scared to come forward to report a rape.
The community we live in discriminates against women. The law must protect them. This Bill will encourage them to talk, and not be silent because they sometimes say, "Break the silence!" In other words, "Speak."]
Evidence of women complainants will no longer be viewed with suspicion.
Kafitjhazana ngifuna ukukhuluma ngekulumo eyethulwe ngumhlonitjhwa u-Sheila Camerer emalungana nokuthi senza umthetho namkha umlando omutjha eSewula Afrika wokuthengisa ngedini. Ngifuna ukutjho ukuthi silandela kwaphela nje isiqunto esathathwa yikhotho, lapho ikhotho iqala khona bonyana sesiphila esikhathini sokulingana namkha sedemokhrasi lapho kufanele ukuthi abantu namkha izelelesi zithathwe ngokulinganako, ngaphandle kokukhethulula ukuthi umuntu lo ungumma namkha umfazi.
Into leyo soke siyayivuma, kodwana siqale ikakhulukazi ukuthi Ekuphetheni, angiqalise kancani ekulumeni kamhlonitjhwa u-Steve Swart, yokuthi ukuvuma namkha ukuvikeleka kususwe eminyakeni eli-16 ukuya keli-18, abantwanaba abaphakathi kweminyaka eli-16 neli-18, bangatholakali sele bathathwa njengeenlelesi, batholakale sele banamarekhodi, ngombana siyazi ukuthi iinkhathi ziyatjhuguluka. Abantwanaba bahlakanipha msinyazana. Nabatholakala bamlandu, lokho kuzobavimbela ukuthi nasele bafuna ukusebenza, bangakwazi ukusebenza endaweni lapho basebenza khona ngabentwana.
Emaswapheleni, ngifuna ukutjho ukuthi ihlangano ye-ANC edosa phambili begodu ephila njalo, iyawusekela umThethomlingwa lo. (Translation of isiNdebele paragraphs follows.)
[Briefly, I would like to refer to the speech by hon Sheila Camerer about us making the law or making a new South African history in commercialising sex. I would like to say that we are following the decision taken by the court in which the court treats people equally or whereby people and criminals are treated equally in a democratic country, and also without discriminating against women.
We all agree on this issue. But I would like to focus on the speech by hon Steve Swart, that the age of consent be moved from 16 to 18 years. These children between the age of 16 and 18 should not be seen as criminals or as having criminal records because we know that times change. These children develop quicker. They will be prevented from getting jobs in kindergartens if found guilty.
In conclusion, I would like to say the ANC-led government supports this Bill.]