Programme and Sexual Offences Report: SA Law Reform Commission briefing

Meeting report

IMPROVEMENT OF QUALITY OF LIFE AND STATUS OF WOMEN JOINT MONITORING COMMITTEE
27 May 2005
PROGRAMME AND SEXUAL OFFENCES REPORT: SA LAW REFORM COMMISSION BRIEFING

Chairperson: Ms M Morutoa (ANC)

Documents handed out:
South African Law Reform Commission PowerPoint presentation
South African Law Reform Commission PowerPoint presentation: Sexual Offences
South African Law Reform Commission briefing text

SUMMARY
The South African Law Reform Commission presented the functions, policies and priority activities of the Commission. Member discussions took place around the establishment of the Commission and its role before and after 1994; the definition of ‘rape’, the age of consent for sexual activity, Muslim Law and compulsory HIV testing.

MINUTES

South African Law Reform Commission briefing
Mr W Henegan (Chief Director) explained the functioning, policies and priorities of the SA Law Reform Commission (SALRC), together with explanations of how discussion papers and working papers were prepared. The programme of the Commission involved the revision of the Statute Book such as with the Black Administration Act of 1927, and domestic partnerships involving heterosexual and homosexual partnerships.

Ms D Clark (Researcher) explained the SALRC ‘Project 107: Sexual Offences’ report that had been completed and submitted. The report specifically dealt with the growing and complex problems relating to rape and sexual abuse in South Africa. The recommendations of the report were presented.

Discussion
Ms C Botha (DA) asked the definition of a ‘child’. Ms Clarke explained that a child was defined as ‘a person younger than 18 years of age’.

Ms Botha asked about the statement that children under the age of 12 could not consent to sex. What would happen if a child under 12 committed the act of rape - would the child be held liable?

Ms Clarke said that they did not attach an age to the perpetrator. It was possible for a child under 12 to commit rape.

Ms Botha referred to the decriminalisation of offences relating to child prostitutes and children benefiting from the practice, such as siblings in a child-headed household. Why was this type of prostitution different to adult prostitution?

Ms Clarke explained that there was an overriding principle that all child prostitutes were ‘vulnerable’ and not criminals. Any adult living off the proceedings of prostitution was committing a crime. Prostitution was being decriminalised in cases involving children.

Ms Botha asked for the Commission’s position on a Sexual Offenders Register. Ms Clarke explained that the Commission had not recommended the Register. This was due to the low conviction rate of sexual offenders and the false security that the Register provided. Only 6% of perpetrators were prosecuted, which meant that many offenders would not be on the Register anyway. Vigilantism was rife and once the public obtained the names of offenders, it would be harder for them to reintegrate into society. Citizens sometimes victimised family members, which usually led to perpetrators disappearing. In the United States, 60% of offenders on the Register were ‘unaccounted for’. They had ‘gone underground’ and had no fixed abode, thus making monitoring impossible which was worrying.

Ms Botha asked about the Pensions Bill regarding divorce. Widows received only 50% of the pension when their husbands died, although they had been married for long periods. It was a discriminatory approach and a principle that had to be looked at again.

Mr Henegan said that there was a distinction between legal rights and the way the fund was administered. The administration was based on the rules of the state pension fund. There was serious discrimination of women where pension rights were involved. There was a Pension Rights Bill but the Commission had found further issues that needed attention. There was a second report (18 page). The investigation into domestic partnerships had an impact on pension benefits and would be addressed.

Ms J Semple (DA) asked how long it would take to complete the ‘A priorities’. What were the timeframes? Mr Henegan explained that the Commission did not just work on one priority at a time. If there was staff capacity, work on different priorities was done concurrently. The situation was definitely more flexible. After the Commission had published discussion papers, they had to wait three to four months for responses, thus giving them time to start other investigations. They tried to finish ‘priority A’ topics very quickly. ‘C and D priorities’ took longer to finalise because they were done in the spare time.

Ms Semple asked the age of consent for mentally disabled children. Ms Clarke explained that the age was 12 because some mentally impaired children might want to engage in sexual intercourse. The Commission wanted to cover that possibility and also protect children. This would depend on the level the mental disability.

Ms Semple asked for more on the ‘three cautionary rulings’ children would have to face. Ms Clarke explained that, in relation to complainants in sexual offence cases, evidence should and was treated with caution. The Magistrate had to immediately caution the court. The child should be allowed to tell their story and then cautioned if necessary.

Ms Semple asked why the onus to disclose their crime lay with the sex offender. Why would the information not be easily available to potential employers? Ms Clarke said that all employers were required to do a background check on potential employees. This would reveal the non-disclosure, which would lead to prosecution.

Ms D Morobi (ANC) referred to the establishment of the Commission in 1973. Before democracy in 1994, what were the functions of the Commission? Had the Commission repealed any laws after 1994 that they had recommended in the first twenty years before that?

Mr Henegan explained that before democracy, the Commission had operated on the same pieces of legislation. The emphasis and content had not changed. Before 1994 the Commission simply kept the legal system updated. Since then, the content had changed from ‘maintenance to transformation’. The Commission had gone more into social reform and engineering. The Commission was an advisory body.

Currently there were arguments about the independence of the Commission and its role. In the previous dispensation, their mandate had been to carry out the Kruger Human Rights Inquiry. South Africa had then been based on ‘group rights’, and the Commission had recommended that the Bill of Rights be based on individual rights. They had looked at constitutional models around the world and how the different systems worked. The Commission had since assisted and developed the rights of the people by looking at social needs and updating legislations. The new emphasis was to advise government on global perspectives as new global practices were integrated. The Commission belonged to the African Association of Law Reform Agencies, which had 12 member states. This body shared knowledge and expertise. South Africa had been privileged to host the 2005 Law Reform conference in March 2005, where twenty countries had debated law reforms.

Ms Morobi asked how the Commission dealt with ‘Sharia Law’. Mr Henegan said that pages 9-26 in the report dealt with this Muslim legal system. Exposition C was gender-related. The Commission had completed an investigation. It was difficult because Sharia law was considered ‘divine law’ and thus not susceptible to secular injunction. They had given recommendations on Muslim marriages. There were disagreements and ongoing debates on the issue.

Ms Morobi asked about compulsory HIV testing. Why did it have to be done after three months? Ms Clarke said that this issue was before the Portfolio Committee on Justice. It just dealt with compulsory testing for offenders - usually victims did not want testing done. Medical practitioners had said that it was now possible to ascertain HIV infection within 24 hours.

Ms Morobi asked about victims who were unable to identify the perpetrators. Ms Clarke said that there were specific obligations on what steps had to be taken by the police and prosecution services regarding identification parades. This was not taking place as it was meant.

Ms Morobi asked if one could approach the Commission directly for help. Ms Clarke explained that the Commission was not directly involved in cases but gave guidance.

Ms M Mdlalose (IFP) asked for clarity around the different ages of consent. Ms Clarke explained the situation of statutory rape. Section 14 of the Constitution dealt with the age of consent of sexual intercourse. Consent for a boy or girl under the age of 16 was ‘ignored’ for penetrative acts. The age for immoral, indecent, non-penetrative acts was 19.

Ms Mdlalose asked if the public had access to any of the reports. Did they publish reports for grassroots communities? Ms Clarke said that non-legislative publications included publications for schools through the Department of Education.

Mr D Mabena (ANC) asked for clarity around offenders applying for employment. If the offender was rehabilitated, were they being fair by doing background checks? Ms Clarke explained that the obligation to disclose their conviction applied only if perpetrators wanted to work with children. The protection of children was the first priority.

Mr Mabena asked if there was one database for offenders. If not, would it be possible to draw up one? Ms Clarke said that the Commission had not recommended a Register. Currently there was a police database and the Commission felt it should be expanded to include sexual offenders.

The Chairperson asked about the concern around compulsory HIV testing. Did victims get ARVS one hour after the crime? The non-governmental organisation (NGO) sector had promoting this since the 1990s. Testing was not happening and neither was the provision of antiretroviral HIV drugs (ARVS).

The Chairperson asked if the Commission was dealing with the administration of estates in the statutes. There was a bias in the treatment between black and white estates. Mr Henegan said that the Commission had just finished a report on Customary Law. This issue would receive priority in the second half of the year. The report on the comparisons between law reform and the Constitutional Court would be sent to the Committee Chairperson. They had recommended that the two latter institutions communicate with each other. The administration of estates had been decentralised. All estates had to be dealt with by the Master of the High Court.

The Chairperson pointed out that the public had to travel vast distances for legal services. Mr Henegan said that the Masters office accessibility was based on the discriminatory old system. They had to decentralise activities. Services were now available through the Magistrates’ courts.

Mr Mabena asked about the definition of a child-headed household. The Children’s Bill said the head of the household had to be under 18 years, and the Housing sector had mentioned 21 years. Mr Henegan said that the issue of child-headed households was the responsibility of the Department of Social Development and the new Children’s Bill. Ms Botha added that the Children’s Bill had recommended that every child had the right to refuse circumcision. Babies were incapable of knowing what was happening to them.

Mr Henegan said the Commission was purely an advisory board and not totally up to date on the emerging content of the Children’s Bill. Two researchers from the Commission had been assisting that Committee. An arrangement could be made for them to present to the Joint Committee on the progress of the Bill.

Ms Botha pointed out that time was a problem because the Bill would be finalised shortly. The Chairperson said that the researchers could be called before the Bill was legislated. Mr Henegan suggested a joint meeting with the Justice Portfolio Committee as they had to present a finished report to them.

The meeting was adjourned.