Criminal Law (Sexual Offences and Related Matters) Act Amendment Bill

Meeting report

The Chairperson convened the virtual meeting and thanked the Department of Justice (DoJ) State Legal Advisors for their patience in waiting for the Committee to finish its preceding closed meeting with the judiciary that ran overtime. The Legal Advisors would brief them on the second working document.

Criminal Law (Sexual Offences and Related Matters) Act Amendment Bill [B16-2020]
Mr Henk du Preez, DoJ State Legal Advisor, said the working document was compiled on 2 February 2021.

Ms Ina Botha, DoJ State Legal Advisor, stated that this briefing would outline the various options that must be considered for some clauses in the Bill. Some options are quite similar, and the Committee will receive detailed explanations of the contents and implications of each of these options. The principles that are involved in the proposed clauses will need to be fine-tuned with the guidance of the Committee. The clauses that will be discussed are mainly on the proposed National Register for Sex Offenders and the various amendments to sexual offences in the principal Act.

Amendments to section 2: Establishment of a National Register for Sex Offenders:
The Bill proposes an amendment to section 2 of the Sexual Offences Act relating to its objectives. The amendment proposes substituting paragraph (g) of the Sexual Offences Act with the following paragraph: “establishing a National Register for Sex Offenders in order to establish a record of persons who are or have been convicted of any sexual offences so as to prohibit such persons from being employed in a manner that places them in a position to work with or have access to or authority or supervision over or care of persons who are vulnerable.”

This amendment was previously presented to the Committee. Mr du Preez stated that the comments received by the Committee pointed out that the requirement of ‘access to’ is very wide and should be reconsidered in view of the proposed definition of a ‘person who is vulnerable’. The phrase ‘access to’ or even ‘congregate’ could be restricted to children and persons with disabilities, or it could be omitted as a requirement from the relevant provision. A note was added in the Working Document on the Bill on whether the Committee would be in favour of including the phrase or requirement of ‘vulnerable persons’ in the proposed amendments to section 2.

Amendments to section 12: Incest:
The Bill proposes an amendment to section 12 of the Sexual Offences Act on the sexual offence of incest. The amendment proposes substituting subsection 1 with the following paragraph: “Persons who may not lawfully marry each otheron account of consanguinity, affinity, or an adoptive relationship and who unlawfully and intentionally engage in an act of (a) sexual penetration with each other; or (b) sexual violation with each other where one of them is a child are, despite their mural consent to engage in such act, guilty of the offence of incest.” This amendment amends section 12 of the Sexual Offences Act by inserting the words ‘sexual violation with each other where one of them is a child’.

The Committee was presented with three options for the proposed amendments to section 12.
• The first option was presented at a previous meeting in an attempt to address the concerns of the South African Police Service (SAPS). This option includes inserting the words ‘and the act of sexual violation was committed in such a manner that it violates or offends the sexual integrity or dignity of that child’ into the proposed amendment.
• The second option aimed to introduce a subjective test with reference to the child victim’s state of mind on whether an act is unlawful or not. This option includes inserting the words ‘and the act of sexual violation was of such a nature that the child is, after the commission of the act, reluctant to participate in such an act again; into the proposed amendment.
• The third option aims to introduce an objective test that focuses on the act itself and not the state of mind of the child and aims to require that the nature of the act should be objectively considered in order to determine unlawfulness. This option includes inserting the words ‘and the act of sexual violation was of such a nature that it was inappropriate or reprehensible for the adult person to have acted in that manner under the circumstances concerned’ into the proposed amendment.

Mr du Preez stated that there was an attempt to bring in an objective test to determine whether the act of sexual violation should be criminalised or not. The option suggested by the Committee of adding a subjective test of a reasonable child was included in the Working Document as the second option. The DoJ advocated for the third option that falls back on an objective test by inserting the words that the act of sexual violation was of such a nature that it was inappropriate or reprehensible for the adult person to have acted in that manner under the circumstances concerned. These options have been discussed with the National Prosecuting Authority (NPA), which has indicated that it support the third option. The NPA suggested that the word ‘inappropriate’ could be deleted from the proposed amendment as its scope is covered by the word ‘reprehensible’. DoJ agreed with the argument from the NPA. The three options are presented to the Committee. However, the DoJ strongly recommended that the Committee consider the third option.

The Chairperson requested Mr du Preez to point out the differences of the options to the Committee.

Mr du Preez responded that the first option was the one presented to the Committee in the first Working Document on the Bill. It was added in response to the concerns raised by SAPS. One specific concern was that an ordinary loving parent showing affection to their child might be subject to prosecution under that first option. The Committee previously requested the inclusion of a second option that focuses on the state of mind of the child, thus a subjective test. The third option is a purely objective test on the unlawfulness of the act of incest itself.

Discussion:
Mr S Swart (ACDP) stated that the options presented by the DoJ is immensely helpful in clarifying matters. He supported the third option but stated that the Bill has been stamped as the ‘Kissing Bill’ and it should not be a criminal offence for parents to kiss their children in appropriate ways. The third option’s removal of the word ‘inappropriate’ makes the objective of the provision clear. He emphasised that children can never consent to sexual acts because they are underage.

Mr W Horn (DA) thanked the DoJ for presenting different options. He expressed reservations about the second option and whether a valid legal test of a reasonable child can be developed in our law. The law takes cognisance of the unpredictability, immaturity, and unreasonableness of the mind of a minor. He agreed with Mr Swart that the third option seems best suited for the proposed amendment.

Mr du Preez pointed out that the Bill prohibits all forms of incest, even where people engage in the act consensually. A child under the age of 12 cannot consent to any type of sexual act, but a person between the ages of 12 and 16 can consent to sexual acts. However, consent in terms of sections 15 and 16 are irrelevant for the purposes of prosecuting cases of statutory rape and assault.

Amendments on the insertion of Part no. 5: Sexual intimidation:
The Bill proposes an insertion of a Part no. 5 after Part no. 4 of the Sexual Offences Act on sexual intimidation. This proposed insertion criminalises the act of sexual intimidation. The Committee was presented with two options for the proposed section 14A.

• The first option provides that a person (‘A’) who unlawfully and intentionally utters or conveys a threat to another person (‘B’) that inspires a reasonable belief of imminent harm in B that B, or a third party who is a member of the family or household of B or any other person in a close relationship with B, shall be raped, compelled to rape by someone else, sexually violated,compelled to sexually violate someone else,compelled to sexually violate himself or herself,compelled to witness a sexual offence, sexual act or an act of self-masturbation, exposed to the genital organs, anus or female breasts of another person; orexposed to child pornography,as contemplated, is guilty of the offence of sexual intimidation.

• The second option provides for the same offence of sexual intimidation but eliminates the specific acts. The DoJ, after considered the proposed new offence of sexual intimidation, was of the view that the list of offences as outlined in the first option should not be restricted to only certain offences and should include all sexual offences as defined in the Sexual Offences Act. Exposure to adult pornography is not criminalised in the Sexual Offences Act and cannot be included in the proposed amendment as a result. This aspect was debated at length by the Committee when the Sexual Offences Act was processed in Parliament. The proposed wording ‘and may be liable on conviction to the punishment to which a person convicted of actually committing the offence would be liable’ which are similar to the wording reflected in section 55 of the Sexual Offences Act has been found by the Constitutional Court in the case of Economic Freedom Fighters and Another v the Minister of Justice & Correctional Services of 2020 to be constitutional.The offence referred to in section 55 of the Sexual Offences Act is also in line with the judgment of the Constitutional Court.

The reference to ‘sexual offences’ includes reference to the acts of bestiality and sexual violation of corpses. This raised the question of whether it would be appropriate to include these existing offences in the proposed new offence of sexual intimidation. This option was presented to the Committee at a previous meeting in an attempt to address the concern that the word ‘indirect’ is overbroad and that the term ‘third party’ is vague and too wide in scope. The DoJ indicated to the Committee that it could be more appropriate to remove the requirements of ‘direct’ or ‘indirect’, and to describe what is meant by a third party (being any family member or person in close relationship with the victim). The omitting of the list of offences and inclusion of all sexual offences emphasises that the purpose of the proposed insertion is that if any person unlawfully and intentionally threatens another person in a way that inspires the reasonable belief of imminent harm, then the offence of sexual intimidation is committed. The DoJ recommends the endorsement of the second option.

Discussion:
Ms W Newhoudt-Druchen (ANC) stated that the Committee understood the option of removing the listed sexual offences to include all types of sexual offences. What does all sexual offences mean? Could it not give rise to a situation where an accused could use the defence that there was no list given and that they did not know their conduct amounted to a sexual offence?

Mr du Preez responded that section 1 of the Sexual Offences Act does define sexual offences as including all conduct criminalised as such under the legislation. One of the reasons for moving away from the closed list of sexual offences is to ensure that future offences created are included in the provision, especially cyber-crimes. It is technically more appropriate to do away with the specified list of sexual offences.

He stated that the Committee was previously divided on whether the National Register of Sex Offenders should be moved to the custody of SAPS. There were few amendments in that regard.

Amendments to section 40: Definition of vulnerable persons:
The Bill proposes an amendment to section 40 of the Sexual Offences Act on the definition of employer and vulnerable persons. The amendment arose from the comments of the Committee that the requirement of ‘access to’ is very wide and should be reconsidered in view of the proposed definition of a ‘person who is vulnerable’. It was suggested that the words ‘access to’ could be restricted to children and certain persons with disabilities or omitted. These are the two options for the Committee to consider.

The Chairperson asked Mr du Preez to inform the Committee on the definition of a vulnerable person to ensure Members are clear on what the options entail.

Mr du Preez gave the options of the definition of a vulnerable person:
• The first option on the definition of a vulnerable person relates to a child or person that is mentally disabled, a female under the age of 25, a person who is being cared for or sheltered in a facility that provides services to victims of crime, persons with physical, intellectual, or sensory disabilities, and persons older than sixty, as stipulated and defined in the proposed amendments. This option is the version of the provision in the Bill reflecting the technical amendments.
• The second option expands on the contents of the first option by including persons who are part of the LGBTIAQ+ community. The extension of the ambit of the definition will have a direct effect on employers and potential employers to avoid the possible detriment of persons who apply for employment or who, for example, want to become foster parents. On the inclusion of LGBTIAQ+ community members, the first interpretation is to read the provision as including persons with a characteristic that identifies that person as a member of a group that recognises itself as transgender, intersexed or according to sexual orientation. The second interpretation is reading the provision as including a person who is transgender, intersexed or a person who as a result of sexual orientation could be identified as a member of a group that is generally recognised as such. These two options have been included for the Committee to consider more gender-neutral terminology.
• The third option aims to restrict the definition to the most vulnerable of vulnerable persons. As far as females under 25 years are concerned, consideration may also be given to extend the inclusion to include reference to, for example, hostels where students live and educational institutions where students study.

Discussion:
Ms J Mofokeng (ANC) asked if DoJ checked with the LGBTIAQ+ community on the appropriate terms used for the proposed amendment. People who identify, amongst others, as lesbian, gay, queer, or asexual should simply be referred to as the LGBTIAQ+ community for the proposed amendments to be as inclusive and gender neutral as possible. Information and submissions from LGBTIAQ+ organisations must be obtained to ensure inclusivity and that the matter is not over-complicated.

Ms Newhoudt-Druchen asked if elderly people above sixty must be in institutions or formal care to classify as vulnerable persons, or if elderly people cared for by family members are included when they do not live in a care facility.

Mr du Preez noted the proposal of consulting with LGBTIAQ+ organisations about the terms to be used in the proposed amendment. He stated that it will not be possible to use an abbreviation in the legislation without clearly defining it. In response to the question on elderly people, he stated the harsh reality of the purpose of the proposed amendments which restrict it on employment.

Amendments to section 40: Definition of vulnerable persons:
Mr du Preez stated that at previous meetings the question was raised on possibility to empower the Minister of Justice to make subordinate legislation to extend the definition of a vulnerable person. As far as the technical aspects of the formulation is concerned, it should be noted that the DoJ would want to suggest alternative wording if the proposal is accepted.The DoJ does not support the proposal of allowing the Minister to extend the list through subordinate legislation.

Ms Botha referred to paragraph (h) of the proposed definition of a vulnerable group of people. It was proposed by the Parliamentary Legal Advisor that it include any persons who falls within a vulnerable group that is either oppressed, more susceptible to harm, abuse, and exploitation, and who is a particularly dangerous situation where they are less capable of protecting themselves. The Parliamentary Legal Adviser also recommended that the section on Regulations should also be amended accordingly.

The Chairperson asked if the DoJ was going to speak more on subordinate legislation.

Ms Botha stated that the DoJ’s attention was drawn to the possible impact of the delegation of this power to the Executive. It is important to consider what can be delegated to the Executive, and the various judgments of the Constitutional Court must guide this consideration. It is Parliament’s duty to make the law, and the duty of the Executive to implement it. The Constitutional Court has emphasised the manner and form that such delegation must adhere to, with particular focus on consultation processes. It is paramount to considered if the law-making function of Parliament is delegated, or if the Executive is merely empowered to add substance to what the law is set out to be.

Ms Botha asked what are the consequences of broadening the definition on the obligations placed on certain employers. The Constitutional Court has stated that the purpose of the delegation must be taken into consideration because ordinarily only very technical matters are delegated to the Executive. What is the reason for the Committee or Parliament wanting to grant this power to the Minister? There is a serious risk that this delegation of power will be found to be unconstitutional by the Constitutional Court. The DoJ expressed serious concern about conferring the authority on the Minister to broaden the definition of vulnerable persons.

Dr Barbara Loots, Parliamentary Legal Advisor, stated this delegation would be made on thin ice. While it is possible in theory, there is a serious consideration of public participation and consultation that must be adhered to. These are the factors that the courts consider in deciding if the delegation involved was a delegation of a plenary power, which cannot be delegated by Parliament.

The Chairperson stated that this matter could even amount to an abdication. A statutory definition cannot be delegated to the Minister. The definition of a vulnerable person should be amended to delete the part delegating the power to the Minister.

Mr Horn stated that Parliament must learn from previous experience that if something is within its authority and deemed the responsibility of Parliament, then it must be embraced. He asked if Parliament’s law-making responsibility does not simply extend to determining that a law must give protection to vulnerable people. Is the decision of who falls within the category of the definition of a vulnerable person not a policy decision? On the basis of the admission of the State Legal Advisors that it would not be possible to conclusively and with finality define a vulnerable person. He was not convinced that the determination of who constitutes a vulnerable person classifies as a law-making power rather than a policy decision. Policy-related decisions ultimately rest with government. Has this aspect been carefully considered by the DoJ?

Mr du Preez responded that the question from Mr Horn boiled down to two things: first, the Minister must interpret a term that is supposed to be defined in the legislation itself, and secondly, that whatever the Minister decides must be subject to the approval of Parliament. This is merely a remote way of legislating and is insufficient under the circumstances.

Dr Loots stated that when laws are legislated, there is a need to provide certainty as to the scope and application of the law. This is the principle of legality, as entrenched in the Constitution. The Minister must know what the boundaries of the proposed legislation are before making Regulations. The case law about the delegation of plenary powers are noticeably clear, and a declaration of unconstitutionality is sure to follow an overbroad delegation. She submitted that leaving the interpretation of the proposed definition up to the Minister would be a serious risk.

Ms Botha agreed with Dr Loots and stated that the clear distinction between the making and the implementation of laws must be adhered to.

The Chairperson agreed with Dr Loots that leaving the interpretation of the proposed definition up to the Minister would be a serious risk. That part of the definition should be deleted to avoid future finding of unconstitutionality.

Mr Horn referred to the third option on females under the age of 25 and asked if there are other categories of women under that age that are studying or pursuing further education that might be left out of the scope of the proposed provision, such as a woman doing a beauty course or apprenticeships.

Ms Mofokeng stated that it is important that all women studying further are included in this provision and that some women are not inadvertently excluded, and that the provision is not limited to specific educational institutions. All places where women could be vulnerable, such as at companies doing internships, should be considered for inclusion in this provision.

The Chairperson stated the importance of using an omnibus term to cover all the areas of vulnerabilities – as raised by Members – to ensure that people who are vulnerable are not excluded.

Ms Newhoudt-Druchen stated that the term ‘learnership’ is used in South Africa rather than internships. This term can be used as an omnibus term, as suggested by the Chairperson.

Ms Mofokeng stated that the proposed amendments are very broad, and the organisations consulting with the Committee have raised that even taxis are vulnerable areas for women.

Ms Botha stated that the definition of a vulnerable person is quite challenging, and the DoJ will investigate the extent of flexibility and incorporate the Committee’s concerns.

The Chairperson agreed that the definition is quite difficult and thanked the DoJ for its commitment in ensuring that the concerns and inputs of Members will be addressed to produce a workable definition.

Amendments to section 40: Definition of sexual offence:
The Bill proposes an amendment to section 40 of the Sexual Offences Act on the insertion of a definition of a sexual offence.The option presented to the Committee aims to ensure that the extension to all sexual offences only applies prospectively i.e. only those convictions for offences that have been committed after the commencement of the Bill. This was in response to the Committee’s view that the previous retrospective operation of the definition will cause problems if the definition of vulnerable persons is extended. It was indicated to the Committee that the retrospectivity would in all likelihood be justified in terms of section 36 of the Constitution, when considering that these provisions are enacted to protect vulnerable persons. This proposal was previously presented to the Committee.

The Committee was reminded that the requirement of ‘access to’ is again problematic as it is very wide and should be reconsidered in view of the proposed definition of a ‘person who is vulnerable’. The phrase ‘access to’ or even ‘congregate’ could be restricted to children and persons with disabilities, or it could be omitted as a requirement. Once again, these are the two options available.

Amendments to section 42: National Register of Sex Offenders:
The Committee was presented with two options:
• The first option included in the provision that the Registrar must make the full names, surname, ID number, and the sexual offence available on the DoJ website of every person whose particulars have been included in the Register and who was not a child at the time of the commission of the offence and who was not convicted of having committed a sexual offence against a child or person who is mentally disabled. This option aimed to ensure that child victims (and persons who are mentally disabled) cannot be identified through the disclosure of information to the public. The concern has been expressed that the particulars of persons who were children at the time of the commission of the sexual offence should not appear in the Register in line with the findings of the Constitutional Court.

• The second option aimed to ensure that members of the public may access the Registrar by applying to the Registrar for information to be made available to them. It should be kept in mind that the purpose of the National Register of Sex Offenders is to protect children and persons who are mentally disabled. Providing any member of the public access to the Register raises problems about its adherence to this purpose.

Mr du Preez stated that these amendments relate to the public’s access to the National Register of Sex Offenders. The DoJ was previously requested to provide the Committee with options where people who were children at the time of the commission of an offence should be protected as children who might be identifiable when the particulars of an offender are made available to the public. The alternative approach would be for any person to apply to the Registrar to be informed if a person is listed in the National Register of Sex Offenders. The DoJ had reservations about both options, and the guidance of the Committee is required.

Discussion:
The Chairperson asked what the DoJ is proposing if there are concerns on both options about the public availability of the National Register of Sex Offenders. Has there been sufficient consultation on this and consideration of the submissions received? The DoJ can have its reservations, but a feasible option must be presented to the Committee.

Mr Horn asked the DoJ to inform Members on what its concerns are about the second option. The second option seemed to solve and address the whole issue of publishing the National Register of Sex Offenders. If someone with a reasonable and valid interest in the information applies on the prescribed form, that person’s needs and request would then be accommodated by the second option. Dr Loots previously made Members aware of the inherent danger of making the National Register of Sex Offenders entirely public, and so more clarity is needed about DoJ’s concerns about the second option.

Mr du Preez replied that the South African Law Reform Commission, when it submitted a report on sexual offences, recommended that there should not be a National Register of Sex Offenders because it creates a false sense of security as it only captures the details of people who have been formally convicted of sexual offences. It cannot be used to predict if a person would commit a sexual offence. When considering the second option, there are two main concerns of the DoJ. There is an existing procedure in place for employers to comply with a set of arduous requirements. The second option does not include a purpose for why a person would be able to apply to the Registrar to obtain the information listed in the National Register of Sex Offenders. On a technical note, he stated that the Registrar may either grant the request or refuse the request if the confirmation that the particulars of an individual appear on the Register may identify a person who was a child complainant or a person who is mentally disabled against whom the offence was committed. Refusing to confirm if a person appears on the National Register of Sex Offenders is an implied way of confirming that the person is indeed on the National Register of Sex Offenders, because otherwise the Registrar would simply have confirmed whether or not the person appears in it.

Ms Botha agreed with Mr du Preez and stated that the DoJ has tried to take a middle-of-the-road approach to this. What other possible option can be explored if the information cannot be made automatically available? The Registrar is also given a very wide discretion in the proposed second option. The Promotion of Administrative Justice Act and the Promotion of Access to Information Act must be carefully considered in this regard. This makes the endorsement of the second option quite challenging.

Dr Loots stated that the two options presented by the DoJ are fair and well-founded. Kenya follows a regime of a DNA data bank for dangerous sex offenders which also includes compulsory monitoring of such sex offenders including rehabilitation. The South African National Register of Sex Offenders currently makes no distinction between the types of sex offenders. Everyone is grouped under one label.

The Chairperson suggested that Dr Loots together with the DoJ work on presenting a few additional options, as this issue is far from being concluded. The Committee will discuss this again next week.

Ms Mofokeng agreed that further options must be explored, and that research into the systems of other countries must be conducted to find a solution for these concerns. Consultations and further inputs by stakeholders are key in achieving a sustainable solution.

Amendments to section 48: Children who are in custody or care of another person:
Children who are in the custody or care of another person include foster care, kinship, temporary safe caregiving, curators, and adoptive parents. Section 48 places a duty on such caregivers whose particulars are included or are to be included in the Register, to disclose that they has been convicted of a sexual offence or alleged to have committed a sexual offence. The amendment deals with when such a caregiver fails to disclose the relevant information, they are guilty of an offence and liable on conviction to a fine or to imprisonment not exceeding seven years or both. In addition, the amendment includes that a child who is in the custody of such a caregiver must be removed from their care as soon as reasonably possible.

Mr du Preez stated that the Committee previously noted the concern that the amendment does not place the responsibility about the removal of the children from a caregiver’s care on any specific official.

Amendments to section 51: Removal of particulars from the National Register of Sex Offenders:
The amendment deals with the application process for the removal of a person’s particulars. The DoJ recommended to the Committee that the options should be considered to ensure that people who qualify for the removal of their particulars can apply to do so after the commencement of the Bill.

The option of transferring the National Register of Sex Offenders to SAPS:
Mr du Preez referred to the page in the Working Document that outlines how the relevant provisions in the Bill would look like if the National Register of Sex Offenders is transferred to SAPS. Minimal changes were made to this part since the first Working Document.

A transitional provision was also included that, if the National Register of Sex Offenders is transferred to SAPS, the Minister or the Registrar must transfer the database to the SAPS National Commissioner, and all the particulars they receive from the clerks of the courts and the Registrars of the High Courts after such transfer, but before the commencement of the Bill.

The Chairperson stated that in the upcoming future engagements, the State Legal Advisors would have met with SAPS, and the transfer of the National Register of Sex Offenders would be fleshed out more.

Mr Swart said that at the heart of the Bill is the protection of vulnerable women and people. It is important that unemployed youth who cannot attend tertiary educational institutions are also protected as they are just as vulnerable. All females under the age of 25 should enjoy this protection. The definition of vulnerable persons as it stood excludes a number of vulnerable categories.

The Chairperson thanked the State Legal Advisors. The Committee will meet on the Bill during March 2021 to ensure that adequate ground is covered. The Committee must have more tentative views on the Bill and more options presented when needed, to ensure that the legislation can continue and be implemented as a matter of urgency in the fight against gender-based violence and sexual offences.

The meeting was adjourned.