Children’s Amendment Act Private Member’s Bill [PMB2 -2015]: Department of Social Development response, Department of Justice comments on alignment with other legislation

Meeting report

Chairperson's opening remarks
The Chairperson noted that the absence of the Director General and the Deputy Director General from the Department of Social Development (DSD) was unacceptable as either one of them would have been expected to lead the delegation. The Committee wanted to get a letter of apology with reasons for such absence.

Children’s Amendment Act Private Member's Amendment Bill: Department of Social Development responses
Mr Siyabonga Shozi, Director of Legal Services, Department of Social Development, noted that the Private Member's Bill from Hon M Waters (the PMB) was gazetted on 19 November 2014. The Minister of Social Development thereafter tabled the Children’s Amendment Bills 13 and 14 of 2015. The Department was then invited to brief the Committee on the executive amendment bills on 5 August 2015. A week later, Mr Waters was also invited to brief the Committee on his PMB. The Department was now before the Committee to respond to the PMB.

He noted that the PMB and the Amendment Bill 13 of 2015 (B13-2015) were similar in the sense that they both sought to amend section 120 of the Children’s Act by introducing a deeming provision that would do away with the inquiry to find accused persons unsuitable to work with children if found guilty of certain offences against children. Both Bills sought to align section 120 of the Children's Act with the Sexual Offences Act of 2007, since there was currently no proper alignment of these pieces of legislation. Both Bills also sought to give effect to the Constitutional Court judgment in the matter of J vs The National Director of Public Prosecutions [2014] ZACC 13, where the Constitutional Court ruled that there ought to be a distinction between accused adults and accused children, as far as their inclusion into the Register was concerned.

The differences identified between the two Bills were then highlighted. The PMB was only limited to the amendments to section 120 of the Children’s Act. Bill 13-2015 sought to introduce comprehensive amendments, and it addressed issues raised in various court judgments, as well as other shortcomings that had been identified in the course of implementing the Children's Act.

The PMB referred to the now repealed Sexual Offences Act of 1957. It also sought to introduce a new section 5A aimed at distinguishing between adult offenders and child offenders, and in essence, gave effect to the judgment of J vs The National Director of Public Prosecutions. This issue was also addressed in B13-2015, but not in the same way. Instead of introducing a new section, the executive Bill had addressed this under the proposed amendments to section 128.

It was pointed out that the comments on the PMB from the Department of Justice and Constitutional Development (DoJ&CD) were received by DSD after its Bills were already in the parliamentary process, and so DSD could not effect the changes identified by DoJ&CD in the amendments. DoJ&CD had made the following points: 

• DoJ&CD said that the amendments should make reference to the common law offences that existed prior to 16 December 2007, and not only to the Sexual Offences Act of 1957.
• DoJ&CD argued that formulation of the proposed section 120 (4A) of the PMB that read that “in criminal proceedings, where a child is convicted…” did not take into consideration a scenario where a person who was 18 or older was convicted of an offence that was committed when he or she was a child. It had therefore suggested that the proposed section 4A should be formulated to read “in criminal proceedings, a person who was a child at the commission of the offence…” The wording of B13-2015 was currently consistent with the suggestion of DoJ&CD in this regard.
• DoJ&CD also raised a concern about a reference to a ‘child’ in the proposed PMB section (5A). It was suggested that the section should refer to 'a person who was a child at the commission of an offence'. As noted earlier, DSD’s Bill 13 of 2015 had already addressed this issue in its amendments to section 128.

In terms of the alignment of the PMB with section 150 of the Sexual Offences Act, it was noted that the PMB, just like B13-2015, did not align with section 150 of the Sexual Offences Act. Section 150 provided the procedure to be followed in determining whether a child should be included in the register. The critical point introduced by section 150 was the shifting of the onus away from the child offender, so that the prosecutor to raise the matter with the court.

It was the view of the Department that the differences between the two Bills discussed above were not fundamental and could be easily bridged. The Department also opined that it would be ideal to deal with one set of amendments rather two, in order to avoid duplication.

Comment on PMB; Alignment of the Criminal Law (Sexual Offences and related matters) Amendment Act of 2005 and the Child Justice Act with the proposed Children’s Amendment Bill [B3-2015] and the Children Second Amendment Bill [B14-2015]: Department of Justice and Constitutional Development submission
Mr Henk du Preez, Senior Law Adviser, DoJ&CD, began by noting that as a result of the J and Teddy Bear cases, DoJ&CD was required to prepare amendments to the 2007 Sexual Offences Act. The amendment Bill was introduced into Parliament in late 2014. The amendment Bill was only approved in June 2015, and in the process, slight changes were made to the process prescribed in section 50 of the Act, which he wanted to draw attention to now.

The Bill that was originally introduced as Bill 13 was formulated strictly to give effect to the J case, but as a result of the changes foreseen in the procedure around the inclusion of the particulars of the person in the national register for sexual offenders, the question immediately arose as to whether the process should not be duplicated in the Children’s Amendment Bill, as recommended by DoJ&CD.

The first main issue highlighted was in relation to the definitions clause 1(b). This clause currently defined sexual offences to be ‘sexual offence as defined in the Criminal Law (Sexual Offences and Related Matters) Amendment Act of 2007'. That Sexual Offences Act only came into operation on 16 December 2007, and it was still possible even up to now for a person to be convicted of a sexual offence against a child in terms of the common law, in cases of rape or indecent assault or even an offence committed against a child in terms of the 1957 Act. Necessary provisions would be made in that regard.

In order to address the problem highlighted with the definition of sexual offences, it was suggested that 'sexual offence' should be defined to include 'rape or indecent assault or any offence referred to in the Sexual Offences Act, 1957, that has been committed against a child; or a sexual offence referred to in the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, that has been committed against a child.'

If the suggested definitions were to be accepted, then Mr du Preez pointed out that there would be a need to effect slight consequential changes to the proposed amendments in Bill 13 of 2015. One of these was highlighted in clause 2(a) of the Bill. This included the words 'sexual contemplated in the Criminal Law (Sexual Offences and Related Matters) Amendment Act...'. This may be seen as an unnecessary reference to the Act again, which had already been defined in clause 1. This could be remedied by merely referring to 'sexual offence' (already defined in full). The definition that he had just proposed would include all sexual offences.

The reference to the possession of child pornography as contemplated in the Films and Publications Act would remain, because it was an offence set out in a different piece of legislation.

The proposed inclusion of a new subsection 4A in section 120 signified the procedure that would be followed in line with the Teddy Bear case in order to ensure that under appropriate circumstances, the particulars of a person who had been convicted of a sexual offence against a child would be included in the National Child Protection Register.

Mr du Preez then explained the procedure that was introduced by the amendment of the 2007 Act. Any  application for the inclusion of a person’s particulars in the Register, where that person was a child at the time when the offence was committed, should now be made at the initiative of the relevant prosecutor, rather than having an automatic inclusion. The prosecutor would be in a position to decide on the level of  seriousness attached to the case and would then make an application to the court where necessary.

The second part of the new procedure was for the court to consider a report by the probation officer referred to in the Child Justice Act. This new procedure also provided that the convicted person should be given the opportunity to address the court. In the Amendment Act originally submitted by DoJ&CD to the Parliament, the use of the term ‘representations’ was used but the comments received indicated that it would be more appropriate to simply require the person to 'address' the court, as this would make it a bit less formalistic.

The new procedure provided that the court may only make an order that the person’s particulars be included in the Register if the court was satisfied that substantial and compelling circumstances existed o do so, based on the report of the probation officer and any other evidence that justified the making of such order.

A new paragraph (d) had been introduced to the effect that in the event that a court found the existence of substantial and compelling circumstances  to justify the making of an order, then the particulars of the person concerned would be included in the Register, and the court must record such circumstances in the proceedings.

Mr du Preez then took the Committee through the responses of the DoJ&CD to the PMB, as set out in page 4 of the attached presentation (see attached document for full details). He said that essentially the same comments that he had just made on the B13-2015 would apply also to the PMB. This meant that the phrase 'except when such person is a child' needed to be amplified, that the list of offences did not refer to rape and indecent assault, both being common law offences, and should also include references to the child pornography legislation. He questioned the need for the insertion of a new subsection (4A)(c). Finally, the proposed amendments did not require any specific actions to be taken on implementation, and so clause 2 could be simplified to “This Act is called the Children’s Amendment Act, 2015.”.

Discussion
Mr Shozi said that the current comments from DoJ&CD were in line with the previous comments submitted to the Department of Social Development (DSD). The inputs were welcomed and the DSD had no objection to any of the suggestions.

Mr M Waters wanted to know if the missing point 7 in DSD’s presentation was simply a numbering problem. He pointed out that DSD's statement that his proposed Bill referred to the now repealed Sexual Offences Act of 1957 was not totally correct, as the entire Act of 1957 had not been repealed. Certain aspects of this Act were still in force, and the DoJ&CD had made reference to this Act also in its presentation.

Clarification was given on the submission of DSD that the PMB sought to introduce a new section 5A where a distinction would be made between adult offenders and child offenders, and would therefore give effect to the judgment. In actual fact, the introduction of the new section dealt with a different issue entirely. Section 120, as referred to by DSD, dealt with the removal of the child’s name from the Register, while section 5A of the PMB sought to include the child’s name onto the Register.

He also wanted further clarification on the principle included in the amended Sexual Offences Act that spoke to the convicted person being a child at the time the offence was committed, and the onus placed on the court to make a special application to include such person’s particulars on the register.

Mr Shozi confirmed, in respect of the first issue raised, that this was simply a numbering error. He also agreed with Mr Waters on the second point, around the proposed introduction of a new section 5A.

Mr du Preez clarified the points around referring to a person who was a child  at the time the offence was committed. Such child might be an adult at the time of prosecution, because a prosecution could be instituted for an offence that had been committed several years back. However, the principle and the laws stayed the same, in relation to the rights of the convicted person when that person was still a child. Here too, the prosecutor must decide if the court still needed to be approached for an order, because of the status of child at the time of commission of the offence, and that was why it was crucial to amend the wording to reflect that position. There might still be a few cases where, if this was not done, the rights of child offenders (judged at the time of commission, not prosecution) could be encroached upon.

The Chairperson noted that the submissions made by the two departments had closed gaps and enabled each party to understand the reason for the suggested amendments.

Mr Waters said that he would not mind if the principles of his PMB were absorbed into DSD’s amendments. His only concern was the fact that the Child Protections Register was not effectively utilised. At the time when the Children’s Bill was drafted, the inclusion of the wording that the court must make a finding on the unsuitability of a person to work with children gave the impression that the court had an automatic duty to consider this matter and make a finding. However, the courts had read that provision differently. They decided that if no finding was made in a case, then the person involved could still work with children. This created a loophole that allowed thousands of people to continue working with children, even after the commission of an offence against a child. The introduction of the word ‘deemed’ was a welcome idea, as it forced the court then to place an adult automatically on the register. However, he conceded that at that time no issues were raised in terms of the proposed distinction that concerned children, as the best interests of children must be protected. The amendments to the Sexual Offences Act were fully supported.

The Chairperson said that the implementation of the existing laws required the identification of flaws that needed attention. The main issue was to decide upon the reason for the amendment of an existing law, and it was not so important who had identified those flaws.

Mr Shozi thanked the DoJ&CD for its guidance in clarifying the issues within its mandate, and also for the invitation extended to DSD to be involved in the amendment process if interested.

Mr du Preez also thanked the Committee for the opportunity given to the Department of Justice to make a submission, and offered to assist wherever the need may arise in pursuing a better legislative process.

Discussion
Ms E Wilson (DA) wanted to know whether the executive's Amendment Bill and the PMB would be worked upon separately, or if the two Bills would be aligned. If the Bills were being aligned, the Department would have to commit to the correct alignment.

The Chairperson replied that Mr Waters, who introduced the PMB, had reached a consensus with DSD and DoJ&CD on the alignment of the Bills, since his own PMB did not address some other issues raised in the proposed DSD Bill. He had agreed that the Department could incorporate information from his Bill into the executive Bill. The Committee now had the procedural function of pushing the process to Parliament.

The Chairperson requested the Committee Secretary to clarify how the process would now be done.

The Committee Secretary noted that the entire process was a formal one, in which the Speaker of the National Assembly referred the Bill to the Committee. In terms of the Rules, the Committee had already invited the sponsor of the Bill (Mr Waters) to address the Committee, and had asked further questions. The Committee also invited the two departments o respond to the PMB. The Committee was now required by the Rules to report back to the House, after deliberations. A motion of desirability (MOD) had to be compiled by the Committee on whether the Bill was desirable or not.

During the earlier discussions, the sponsor of the Bill indicated he had no problem with the incorporation of his amendments into the executive Bill. If the Committee indicated, through an MOD, that it found the Bill desirable, a process of advertising, public hearings, and so on would commence on that Bill. If the Committee did not find the Bill desirable, it would have to state reasons for the non-desirability. Reasons had been given previously – namely that the PMB amendments were to be incorporated into the executive Bill through formal processes. In order to ensure that the amendments proposed by the sponsor of the PMB were incorporated into the executive Bill, a formal stage would now start, involving the examination of every clause of the executive Bill, in the presence of the Committee members.

The next process for the Committee was to have the report on the desirability or otherwise of the proposed amendments, and then table that in the house.

Ms Daksha Kassan, Parliamentary Legal Adviser, referred the Committee to Rule 233 (I) (ii), that spoke to the decision on motion of desirability in considering a Private Member’s Bill.

She reiterated that since the PMB and the executive Bill dealt with section 120, it would not be logical to process two separate Bills in Parliament. It had also been established that there were sections in the PMB that were not in the executive Bill, and vice versa, and furthermore that both Bills were drafted and introduced prior to the passing of the Sexual Offences Amendment Act. The DoJ&CD’s submission suggested that both Bills had to be aligned to that new Act.

However, the Committee had the discretion to decide on a logical process.

Ms H Malgas (ANC) proposed that since the sponsor of the Bill had agreed to an incorporation of his amendments into the executive Bill, the desirability of the Department’s Bill would be accepted and taken further. However, she sought clarity on whether the Committee must now say that the PMB was not desirable, while the Department’s Bill was desirable.

The Chairperson replied that the motion of desirability would not be developed at this meeting, and that Members would deal with this, after further thought, at a later meeting.

Ms Wilson said that although the Committee was happy about the proposed amendments from the sponsor, its concern was that the PMB contained two sections that were not referred to; namely, the inclusion of a reference to the Sexual Offences Act of 1957 and the common law crimes. The agreement was that both must now be incorporated into the DSD Bill. Once this integration was done, the PMB could be withdrawn, and considered undesirable at that stage, and at that point the process for the PMB could be stopped, while that of the executive Bill would continue, with the necessary additions.

Ms B Abraham (ANC) also agreed that the PMB could be withdrawn since the sponsor was in full support of the incorporation of his amendments into the executive Bill.

Ms B Masango (DA) noted that the processes outlined by the Secretary and the Legal Adviser had helped to clarify the issues.

Ms K De Kock (DA) agreed with the comments made by other members of the Committee, as well as the outlined process.

Ms L Van der Merwe (IFP) expressed support and happiness for the alignment of the two processes.

Mr S Mabilo (ANC) also said that he was in support of the thrust of the direction that the meeting took, as well as the outcome of the day’s meeting.

Ms Kassan clarified that only the sponsor of a PMB could withdraw his Bill, and not the Committee. However, the Committee could express itself on desirability. The wording of the Rules was such that the Committee could take a decision to reject the PMB and proceed with the executive Bill.

Ms Malgas replied that the sponsor of the Bill could be summoned back to withdraw the Bill or request that he put this in writing, in order to avoid any issues at the next meeting.

The Chairperson said that the matter should be left as it was till the next meeting, when suitable resolutions would be agreed upon.

Ms Wilson said that she would ask Mr Waters to put forward a formal withdrawal of the PMB, for furtherance at the next meeting.

Other business
The Chairperson noted that the Committee’s Budget Review and Recommendations Report (BRRR) was not turned back. It was the first to be published in the newspaper of the meeting date. She noted that necessary funding would be allocated for the Department to carry out its functions, and also for the Committee to embark on oversight visits.

The meeting was adjourned.