Criminal Law (Sexual Offences & Related Matters) Amd Bill: Public Submission; Criminal Law (Sentencing) Amd Bill: briefing

Meeting report

SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
30 October 2007
CRIMINAL LAW (SEXUAL OFFENCES & RELATED MATTERS) AMD BILL: PUBLIC SUBMISSION; CRIMINAL LAW (SENTENCING) AMD BILL: BRIEFING

Chairperson: Mr L Mokoena

Documents handed out:
Consortium on Violence Against Women submission on Sexual Offences Bill
Criminal Law (Sexual Offences and Related Matters) Amendment Bill [B50B- 2006]
Criminal Law (Sentencing) Amendment Bill [B15-2007]
Criminal Law (Sentencing) Amendment Bill [B15B-2007]
Briefing Note: Criminal Law (Sentencing) Amendment Bill
Prevention Organized Crime Act, No 121 of 1998: Section 3
Minimum Sentencing Legislation: by Parliament’s Research Unit

Audio recording of meeting

SUMMARY

The Consortium on Violence Against Women gave a submission looking at the following aspects of the Criminal Law (Sexual Offences and Related matters) Amendment Bill:
- Sexual Offences against Persons with Mental Disabilities
- Delayed reporting
- Previous Sexual History
- Expert testimony during the trial
- Specific Issues Pertaining To Children
- Legal representation for victims of sexual offences
- Access to Medication, Medical Care and Medico-Legal Services for victims
- Bail in Sexual Assault Cases.

A briefing on the Criminal Law (Sentencing) Amendment Bill followed.

MINUTES
Consortium on Violence Against Women submission on Criminal Law (Sexual Offences and Related Matters) Amendment Bill
Ms Helene Combrink, of UWC’s Community Law Centre and Ms Lilian Artz and Ms Dee Smythe of UCT’s Gender, Health and Justice Research Unit present the oral submission.

The Consortium on Violence Against Women consists of the following bodies:
- Gender, Health and Justice Research Unit, Faculty of Health Sciences, UCT;
- Gender Project: Community Law Centre, Faculty of Law, University of Western Cape
- Women’s Legal Centre,
- RAPCAN,
- Rape Crisis Cape Town Trust,
- Law, Race and Gender Unit, Faculty of Law, UCT.

Ms Combrink placed on record that her association had been involved with victims of rape and other sexual assaults from 1994. From their empirical research derived from such victim experiences and expanded by similar research both in and out of Africa, her organization had been making submissions from the very inception of the Bill.

Ms Combrink highlighted the particular vulnerability of disabled persons to sexual victimisation and to the specific difficulties experienced by victims with disabilities in accessing justice. In the context of sexual offences, these persons are usually women, who are therefore doubly disadvantaged in respect of both gender and disability. Earlier submissions by the Consortium on Violence Against Women to the National Assembly had been disregarded and she asked whether it was now simply a case of making technical adjustments or making renewed submission in an attempt to rewrite the Bill. A value judgment had been made to look at what the Consortium on Violence Against Women considered to be lacuna in the Bill. Thus she raised the question or position of the rights of persons with existing disabilities, which she conceded had already been raised in the National Assembly but, she submitted respectfully, as the National Council of Provinces is not a rubber stamp but had authority to consider such proposals, even after the National Assembly had disregarded submissions concerning them. She did not propose to go into detail about the types and natures of the disabilities but felt that mentioning disabilities is sufficient. She added that so often persons with disabilities are invisible, and this applied most particularly to women and children who are more vulnerable than other categories of the disabled.

She said that such persons are not given attention in the current Bill and she submitted that the phrase “Persons with disabilities” if added in an appropriate place in the Preamble to the Bill would remedy this defect by making a symbolic change to the status of persons with disabilities. In terms of Clause 66 the Ministers of Social Development, Safety and Security, Health and the Director of the National Prosecuting Authority are all concerned with Sexual Offences crimes. The addition of “Persons with disabilities” in the Preamble would lead to Ministers enacting suitable regulations regarding the treatment of victims suffering from disabilities and this would ensure that this Act worked more effectively. If the Ministry of Safety and Security should instruct the police to adopt a more positive and user friendly approach to the reporting of rapes and other sexual offences by adding the phrase “including complainants with disabilities” much would be achieved.

With regard to Chapter 4 of the Bill those with mental disabilities required especial care and attention from the caregivers assigned to such persons and if the caregivers abused their trust they should be punished more severely than other abusers of such persons. The possible defences to be raised by caregivers accused of maltreating those with mental disabilities in their care should be limited. This is a lacuna in the Bill that requires rectification. She also submitted that some caregivers permitted or were tacit to the abuse of those with mental disabilities for commercial considerations and the Consortium felt that such persons should not only be stopped from such anti social behaviors but should be punished more severely on conviction.

With regard to Evidence and Procedures, three aspects arose. Firstly, there was the question of delayed reporting of a rape or other sexual assault. The National Assembly had remedied this in Section 59 of the Criminal Procedure Act (the Act) whereby Judicial Officers were not allowed to draw any inference from this delay. The Consortium was pleased that this had been addressed and wanted it be strengthened by stating: ” may not draw any negative inference” from the length of any delay.

Further, it is harsh for a victim to have his/her previous sexual history displayed or publicized in court when such history has nothing to do with the issue or crime at hand. The provisions or efficacy of section 227 of the Act, which allows such opening up of complainants’ past sexual histories, should be greatly reduced. If this is done it is probable that more women would lodge complaints, and assist the prosecutors in bringing the matters to trial. As worded the Bill does not provide clear guidelines and Consortium was able to state that victims felt that not only had they been raped in actual fact, but that they thereafter suffered a further mental “raping or torture” at the ensuing trial. Rape victims have constitutional rights to privacy and dignity, which on a balance of interest exceed those of the accused in presenting a defence. The written submission referred to guidelines for the Judiciary based on the Canadian approach which provide that if evidence about the previous sexual history of the complainant is allowed, then such is to be in camera with a prohibition on its publication by anyone.

In summary it needs to be remembered that in terms of the Constitution the victims have rights to privacy and dignity and that there needs to be a balancing of these rights as opposed to the rights of the accused and the Judiciary must be given guidelines on the implementation of this aspect.

Ms Dee Smythe then addressed the Committee on the rights of the victims. Firstly, whereas the accused is invariably assisted by a lawyer, used to court processes, and the prosecutor is concentrating on achieving a conviction, there is no one specifically assigned to assist or stand by the complainant, the real victim, through the trial ordeal and indeed to ensure that the cross-examination of the complainant is confined to the bounds of propriety, and law and does not over step into harassing or intimidating the complainant. Over zealous defence representatives in their cross examination of the victim / complainant often exceed the bounds of acceptability and few Magistrates intervene to prevent such unprofessional abuse of the court process. This is most often the case in a trial within the trial where the defence or prosecution make an application for the admission of evidence, which is otherwise contestable. The Courts are not exercising the judicial obligation to protect the victim / complainant from harassment, especially with regard to their previous sexual history. By contrast in Denmark there is specific provision for the victim / complainant to have legal representation and assistance and in the Republic of Ireland whenever a complainant/ victim’s sexual history comes into question there is legal assistance to the victim / complainant to ensure that their constitutional rights are not violated.

Secondly, Courts are geared to adults, who find the process intimidating enough, but children are doubly victimized, firstly through the assault, and then through the ensuing trial where frequently they are humiliated by over zealous unprofessional defence lawyers and so suffer further psychological trauma. Thus it is submitted that to reduce stress and mental suffering of all children under the age of 18 years, they be permitted to testify through an intermediary, being outside the Court and televised by a Closed Circuit Television (CCTV) so that neither the accused nor the defence lawyer can intimidate the child.

Lastly, in terms of the Judges Rules there is a cautionary rule of thumb, or perception, that all children are likely to lie, or be persuaded to temper their evidence. Empirical research reveals that children do not in fact lie, for they do not have the cognitive ability to lie, or devise lies. In view of this it is submitted that the current Judges’ cautionary rule against the evidence of children be dropped in favour of a competency test for child witnesses. If a child answered all questions reasonably in the preparatory stages, the prosecutor could make an assumption about the competency of a child to give evidence. If this is done at this stage, it would end the current tendency for 50% of complaints to fade away at the very initial investigation stage, with a further 50% of the remaining complaints fading away at the pre trial stage. This would end the accompanying wasteful expenditure of money and resources, more cases would go to court, more convictions be achieved and hopefully the sexual assault rate decline in the face of convictions.

Ms Lilian Artz spoke on Medico Legal and HIV Testing. She posed the question of whether the Justice System could cope with the need to have protection facilities for vulnerable people and further what these protection facilities encompassed. She advanced the view that much more use could be made of expert witnesses in ordinary Magistrates’ Court trials, not only in high profile trials which gain widespread media attention. The fullest possible use of such experts was one way justice could be achieved. The production in Courts of empirical evidence on the effects, both physical and psychological, on victims of rape and other sexual assault crimes would be beneficial to such victims and balance the rights of the victims as against the rights of an alleged perpetrator to a fair trial. She strongly submitted that such ameliorative processes should be built into the Bill.

The omission of medico-legal services from the Bill is of concern. In the medical management of sexual assaults, there needs to be sensitization of medical practitioners to prevent the secondary victimization of rape and sexual assault victims, the proper and expert collection of forensic medical evidence, the reduction of the time spans before which victims are medically examined the effective collaboration between the medical and the detective teams, the proper communication to the victims of the facts and procedures and the necessity therefore, to the victims, the establishment and maintenance of effective standards of investigation and appropriate sanctions for non compliance.

Associated with medical forensic evidence gathering is the medical attention to the victims which includes being tested for HIV and other Sexually Transmitted Diseases and treatment for possible exposure to a sexually transmissible disease, inclusive of Post Exposure Prophylaxis (PEP) and pregnancy. Section 28 of the Bill only provides for access to PEP for the prevention of HIV, but not other sexually transmissible diseases. Section 28, guaranteeing access to PEP, is ambiguous and can create the impression that only victims who lay a charge in respect of an alleged offence may receive PEP. Neither is there provision for treatment of the accompanying physical and psychological trauma involved in sexual assaults. Ms Artz strongly submitted that attention be given to rectifying such omission.

The provision of Compulsory HIV Testing of alleged Sex Offenders is putting the cart before the horse for the sexual testing of the alleged offender does little for the victim, who should be the focus of attention. Medical decisions about antiretroviral medication and personal decisions about future safer sex cannot be based upon the alleged perpetrator’s alleged HIV status, for when tested such person may be in the “window period”, providing a negative test result. Ms Artz asked what purposes is served by being specific and submitted that it clarifies the role the medical / healthcare provider can play; it facilitates treatment; achieves consistency in practice; is enforceable and sets minimum standards of care.

Discussion

Mr Z Ntuli (ANC) referring to legal representation for the victim asked what are the cost implications of such representation, and who is going to pay such costs.

Mr L Fielding (DA) asked for clarification regarding the position of the 14 year old victim.

Mr A Moseki (ANC) said that there had been reference to research in three other countries but pointed out that South Africa is in Africa and asked what relevance reference to other countries had in the light of African traditions and whether there are not more relevant countries to be looked to for guidance.

Mr N Mack (ANC) observed that it seemed that the time period between reporting was of importance and he asked what effect a delay in reporting had on the collection of evidence about an alleged sexual assault.

Mr J Maphalala (NADECO) remarked that reference had been made to a recent unnamed high profile and well reported charge of rape and he wanted to know whether anything had been wrong in such case, and such judgment.

Ms M Nyandu (ANC) asked whether in a case involving an under 18 who refused, or did not want to give evidence, whether such provisions would apply.

An unidentified member asked whether it is really necessary to test the alleged perpetrator for HIV as constitutionally everybody has a right to confidentiality of medical records and did this create greater understanding of the perpetrator.

Mr M Mzizi (IFP) thanked the presenters for their submission but said that it fell short of saying explicitly this is what we want although it highlighted deficiencies in the reporting methods and he suggested from his experience as a court interpreter that prosecutors do not listen to the evidence and it seemed to him necessary to report each rape as early as possible and take specimens and then insist on receiving the information.

Mr D Worth (DA) repeated the question about the costs of intervention on behalf of the victim, and asked whether the time limits as set out in the Bill are not reasonable.

Ms Helene Combrink in reply said that a 14 year old could initiate charges without the consent of her parents; that the references to the other countries were mainly countries which had also been colonized by Britain and so enjoyed a commonality in their legal systems and because of this it is useful to see how they are reforming their Criminal Justice systems approaches to sexual violence. She added that other African countries, especially Namibia, are more advanced than SA in their approach to and treatment of victims of sexual assault. With regard to the time of reporting, this is a matter for the victim and that there are many reasons why a victim delays in reporting, some of the reason being that she has children to attend to, that she is far from a reporting station, that those associated with her may blame her for having been assaulted. She suggested that a personal approach should be adopted and the question to be asked by the Courts is, all things taken into consideration, is the delay reasonable?

Reverting to the “famous trial”, she said that she personally could not be critical of that Court process, and the Judge concerned, and his decision. She, as a researcher, is concerned that the Criminal Procedure Act, as currently existing, permitted the defence to interrogate in a harassing and intimidating manner a complainant about her previous sexual and psychological history. She had no reasons to dispute the defence’s approach but what she challenged is the current provisions in the Criminal Procedure Act which allow for such approach. She felt it did not achieve justice, which is the balancing of the rights of the victims with that of the alleged perpetrators. She reiterated that if their written submission is accepted and drafted into this Bill there would be a more fair balancing of interest between the parties in sexual assault charges.

In turn Ms Dee Smythe said that with regard to sexual assaults, it is felt that comparative issues are important and that although some other African countries working on this question most calls for a review emanate from the former Anglo- Africa legal jurisdictions. The South African Law Review Commission first raised and recommended legal representation for victims of sexual assault. With regard to the costs involved, she pointed out that many non-governmental organisations exist for this type of work. Only this year, the South African Women Lawyers Council had been established and further the established profession was forcing pro bono work from its members. Legal representation for the victim, especially at the trial within a trial stage, would be appropriate times for the pro bono lawyers to provide such envisaged assistance. South Africa is a vibrant innovative society, and ways of assisting the most vulnerable of society, the 12 to 24 year old female group, would be found. However, she conceded that first prize is that all victims of sexual assaults be assisted with legal representation. Proceeding to compulsory HIV testing, this is not solely a Department of Justice concern but also one for the Ministry of Health and one which not only gave rise to a great deal of medical discussion but also to a false sense of security among victims and all persons concerned such as the members of the Committee.

In conclusion she said that there was a great deal of concern about rapists and their rights to confidentiality and a fair trial but, by contrast, very little concentration on the constitutional rights of the victims to health, happiness, security and privacy after the sexual assault. She submitted it is time the scales of justice began tipping in favour of the victims.

Criminal Law (Sentencing) Amendment Bill: briefing
Ms Lirette Louw, Legislative drafter: Department of Justice, said the Bill intended to improve the working of the Criminal Law Amendment Act 1997, which among other changes abolished the imposition of the Death Sentence and created a regime of discretionary minimum sentences for certain serious offences. The Act became operative from 1 May 1998. The provisions in this Bill had a long history and in fact had been under discussion ever since. In practice the discretionary minimum as contemplated in the Act were not imposed if the Courts should find that there are substantial and compelling reasons for NOT applying the applicable minimum sentence. The current interpretation by the Courts is that there is no mandatory minimum sentence.

In terms of the Criminal Procedure Act (CPA) and especially Section 52(1), a Regional Magistrate’s Court refers the convicted of any offence in terms of Schedule 2 Part 1-IV to the High Court for sentencing, if the Court should consider that the offence merits punishment in excess of the jurisdiction of the Regional Court and a complicated referral procedure has developed to facilitate this two-stage process of conviction and sentencing. Section 51(4) provides that the date of the conviction, not the date of sentence, is the effective date with regard to the sentence to be served, and Section 51(5) provides that any sentence period imposed by the Court is NOT subject to suspension.

The operation of the Act has been extended by Parliament, in two-year periods, once again from 1 May 2007, to allow Parliament to consider this Bill. She added that there had twice been Constitutional Court considerations of Sections 51 and 52 and twice that Court had upheld the constitutional validity of these clauses. Notwithstanding the ruling, certain practical problems, real or perceived, relating to sections 51 and 52 have been identified by among others the Judiciary, the National Prosecuting Authority (NPP) and other stakeholders.

Ms Louw then detailed the ten themes within the Bill (see briefing note for details):
- The referral process and consequential amendments.
- Exclusions regarding substantial and compelling circumstances in Rape cases.
- Repeal of Section 51(3)(b)
- Calculation of sentence
- Suspension of sentence
- Extension of the operation of the Act
- Transitional provisions
- Amendment of Schedule 2 to the Act
- Amendment of Prevention of Organized Crime Act (POCA)
- Commencement date of 31 December 2007

As this was the first briefing, the Chairperson decided to leave discussion in abeyance to provide members with time to contemplate the Bill’s suggestions.

Criminal Law (Sexual Offences and Related Matters) Amendment Bill
Mr Henk du Preez, Legislative Drafter: Department of Justice, continued deliberations on this Bill.

Clause 18 Sexual Grooming of children
A committee member raised a question about the preparation of children for early marriages according to tribal custom where the intention is to have sexual congress. Children were prepared for lawful marriage according to tribal custom but these practices would become criminalized. She raised the question of whether this Bill was not going to damage cultural influences and practices.

Mr M Mzizi (IFP) then provided an exposition of “child” in his vernacular and culture and claimed that “wife” is included in the definition of “child” and he was of the opinion that so many things could happen. He illustrated his view by saying that in his culture there is recognition of a plurality of wives, second to fifth wives, and frequently the first wife may be barren and so for the sake of continuity another wife is taken, in accordance with culture and tradition which requires that the bride-to-be, be prepared for sexual activity by female elders of the tribe or clan. He wished to know whether such fell within the ambit of the proposed amendment. He asked whether this could be regarded as morally wrong and if so upon what grounds.

The same member added that Mr Mzizi had explained the cultural aspect well and added that it was only after the actual marriage ceremony that sexual penetration would take place and added that democratic South Africa recognized and protected the rights of second wives.

Mr du Preez conceded that both the unnamed member and Mr Mzizi, in their summaries, were strictly correct in their interpretation of grooming, but added that one also groomed a horse. He pointed out that the Bill as currently worded is intended to cover activity which is embarked upon for an illegal purpose or with a crime in mind and he doubted that any prosecutor would confuse grooming for an illegal purpose with grooming for a legal purpose such as preparation for a marriage according with tradition and cultural practices and referred to the definition of child as in Clauses 1, 15 and 16.

Mr J Maphalala (NADECO) added that frequently a young wife is secured, and groomed, for her duties, including sexual, to replace the original wife and that this is recognized by law .He conceded that such women had reached the age of consent.

Mr du Preez, then pointed out that a difficult question had been broached because in terms of current law a young girl of less than 16 years is deemed unable to consent to sexual activity. However, he added that there are further protective measures set out in Chapter 18 which is an attempt to cast the protective net for young girls further. The prohibition against the sexual grooming of children has been drafted with the undesired activities on the Internet concerning pedophiles who by way of chat, seemingly innocent at first but growingly more explicit, prepare to draw in young children to sexual activity rather that the question of grooming young girls for marriage according to tribal custom and practices.

Ms Dalene Clark (South African Law Reform Commission) added that the intention is to provide young people between the ages of 16 and 18 years with increased protection against exposure to pornography and any intention to be sexual between inappropriate persons and not to criminalize experimentation by young person of the opposite or same gender.

Mr du Preez suggested that the Bill as contemplated is to prevent the targeting or drawing in of the younger child. It was felt that the older child - plus minus 15 years - is well able to look to its own interests.

Mr L Fielding (DA) remarked that it must be asked with what intention this grooming is done in order to establish any criminality.

The Chair stated that it seemed to him that Clause 18 is problematic and the intention of the grooming must be sought for. There are cultures where the grooming of persons younger than 16 for marriage are practiced and it seemed to him that regardless of the intention, an offence is being created which came down to personal interpretation.

Ms M Nyandu (ANC) then raised, in Zulu, the practice each September whereby at the Reed Dance the King of the Zulus points out a young person as an additional wife and she was concerned that the Bill, as worded, would imperil the whole traditional Reed Dance as a crime. Associated with this, is the virginity testing practiced at the same time.

Mr Z Ntuli (ANC) expressed his satisfaction that this question was being raised because at a recent Reed dance the king of the Zulus had pointed out a 15 year old as another wife and there had been a big indaba (naganaga) about this pointing out by the King of a 15 year old and he wanted to know whether the impregnation of a minor amounted to rape.

Mr du Preez then pointed that that there are various criteria to be met before a prosecution is instituted and he did not think any prosecutor would disregard legitimate cultural practices when deciding whether to prosecute or not. Without committing any prosecutor, he felt that there would be respect of cultural practices. However, in terms of the Constitution every one irrespective possesses fundamental rights and there are laws whereby it is deemed that no one under the age of 12 can consent to sexual activity. Between the ages of 12 and 16 years it is recognized that children will experiment but if this age grouping becomes involved in sexual activity with persons falling outside this age grouping and irrespective of any alleged consent, there is unlawfulness. However, there is not automatic prosecution of such persons for there must be a complaint lodged, and the prosecution will consider the aspects of unlawfulness and justification. He added that in terms of this Bill application of the law is for the Courts to decide whereas Parliament, the legislature, must decide what are sexual offences, not the application of the intended Law.

Ms Clark reminded the Members that in terms of current Laws sexual intercourse with a person younger than 16 years of age is a crime, the so-called statutory rape, and that there are other statutory offences, being a contravention of a statute.

The Chair then said that there are cultural practices and for example the King could choose and that a King could be prosecuted. With regard to children, there is a golden line and society must choose what that line is (and Parliament reflects society’s choice) and society must be guided by the medical / biological facts and it seems that society has set this line at 16 years.

Ms Louw pointed out that society and culture is not static. She recalled that Uganda is an example of a country where society had agreed that the long-standing practice of female genital mutilation was no longer acceptable and had taken steps to ensure that it was no longer practiced. In prosecutions the defence of “approved by custom” is no longer accepted.

The Chair then interposed and stated that this clause would be flagged for later attention.

Mr Mzizi said that there had been reference to the King, a traditional leader, and asked whether the King was now under discussion. He firmly stated that the King is supreme and cannot be challenged on any action or decision.

Mr Mack asked if the parties in a relationship constituted as a legally recognized marriage, could be prosecuted.

Mr Moseki (ANC) added that culture is not culture cast in stone but developmental. It seemed that the law of South Africa is the one to adopt and that this law must be based on the Constitution.

The Chair said that this clause must be flagged and that Parliament was not biased against cultures but that with an Act of Parliament, a balance must be found.

Mr du Preez, then pointed out that marriage, properly constituted and recorded, led to the deeming of adulthood for the members, no matter what there ages might be, and that there is provision for statutory rape. He proceeded to apologize to the members if any offence had been caused by his exposition and that offence to any person or institution had not been his intention.

Mr Ntuli said that the Bill is not talking about marriage.

Clause 19 Exposure or display …. of pornography to Children
There was no comment or observation from the Committee.

Clauses 20 – 22 There was no comment or observation.

Chapter 4 on Sexual Offences Against Persons Who Are Mentally Disabled
Mr du Preez went through these clauses and there was no comment or observation.

Chapter 5 Services For Victims Of Sexual Offences and Compulsory HIV Testing Of Alleged Sex Offenders
Mr Maphalala said that he had a question about the test and the time for reporting.

The Chair added that in his reading of the meeting, there is no dissent and in fact that Members accepted the submission by the UCT Gender Unit.

Mr du Preez interposed and said that he had reservations about the submission by the Consortium against Violence against Women. He added that this was not the first time that such submissions had been made by the Consortium. He pointed out that mentally disabled person could never consent to anything legally. Thus he asked why the Consortium was proposing a separate offence and why a separate all encompassing “rag bag” offence should be created. He asked why the Consortium did not spell out their intentions with regard to offences. He said the issue is consent. Referring to the call for Police Stations to be “user friendly” he asked again why this had been included. Government’s Policy is that Police Stations, and in fact all government buildings are to be “user friendly” for all the disparate members of society and that there are countrywide provisions for this, albeit that not every government building is yet “User Friendly”.

With regard to the suggested or requested special provisions for the deaf and caregivers who exploit those in their care he asked the Committee to focus on the crime and not the criminal. Bad examples do not make good law - is the watchword. Thus he found it difficult to understand the submission by the Consortium.

In conclusion he said that he did not want to presumptuously advise the Committee but their work had not been concluded and much had been left over for reflective consideration. He personally is pleased that the bestiality clause is still to be canvassed. He conceded that his colleagues from the Consortium might be passionate about their work but, and he conceded that he might be wrong, it is the duty and obligation of the members of the Committee to consider the submissions and representations, even for the department, and then decide in accordance with their mandates, consciences and knowledge and experience as to what is best for the country.

Mr Maphalala thanked Mr du Preez for his philosophical summation and said that he felt that the Bill is being prepared for crises and is very important. The South African system of Law is influenced by Roman Dutch law and British law. There had been reference to Canadian law regarding customization and that there are various important points to be considered. He agreed that the mentally disabled should received special attention but as he saw it, the main question is the access to justice and he felt that persons could not see this.

The Chair said that he felt that proceedings had been very interesting.

Mr Mzizi interrupted by asking what are the terms and added that the position of the King should not be jeopardized.

The Chair then said that proposals had been made, but none obtained from the Traditional Leaders and he thought the opinions of the Traditional Leaders should be sought, especially with regard to rape, sexual assault, flashing and masturbation. He also wondered where they would be sitting when attending to the four Bills still requiring attention.

The meeting was adjourned.