Criminal Law (Sexual Offences) Amendment Bill: adoption of Report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
18 May 2007
CRIMINAL LAW (SEXUAL OFFENCES) AMENDMENT BILL: ADOPTION OF REPORT

Chairperson: Ms F Chohan-Khota (ANC)

Documents handed out:
Report of the Portfolio Committee on Justice and Constitutional Development on the matter of the tagging of the Criminal Law (Sexual Offences and Related Matters) Amendment Bill, and matters related thereto.
Committee’s Report on Criminal Law (Sexual Offences and Related Matters) Amendment Bill

Relevant documents:
Criminal Law (Sexual Offences and Related Matters) Amendment Bill [B50B- 2003]
Memorandum on the Objects of the Bill
Business Day article, 17 November 2006: De Lange decries ’amateurish advice’ (Appendix 1)
Mercury article, 11 May 2007: Court finds men can't be raped (Appendix 2)

SUMMARY
The Committee unanimously adopted the Report on the Criminal Law (Sexual Offences and Related Matters) Amendment Bill. The report stated that the Joint Tagging Mechanism had confirmed the Section 75 tagging of the Bill and that the Committee thus recommended its adoption by the House. Agreeing that the National Assembly’s speedy approval of the legislation was very important, the majority of members implored the DA to refrain from insisting on giving a declaration when the report was put before the House the following week.

MINUTES
Report on tagging procedure by Chairperson
The Chairperson reported that she had met with the Speaker that Tuesday and had explained the Committee’s stance in regard to the tagging of the Bill. The Speaker thought that the Committee’s response had been sound and suggested that the matter be looked at again in earnest.

The following day the Chairperson met with the Joint Tagging Mechanism (JTM) and but the legal advisors had still thought that there was confusion on the matter and that they could take no decision until the courts had made a ruling.

The Chairperson was of the opinion that there was a problem in Parliament’s legal section, particularly when it came to the tagging of bills. The legal section seemed to be of the opinion that it had to investigate each clause and then make an assessment. In fact a clause-by-clause investigation was necessary only when it was unclear whether the dominant purpose of the legislation fell under Section 75 or Section 76 of the Constitution.

The Chairperson did not agree with the JTM’s stance that if legislation had a provincial effect, it should automatically fall under Section 76 of the Constitution. Under this reasoning every single piece of legislation had a provincial effect because that was where it would be implemented. She did not think that the kind of confusion was necessary or envisaged by the Constitution, which in Section 74 made provision for concurrent powers. She hoped that the Committee’s report would clarify the matter to the JTM, but expected that the Committee might find themselves in the same position again.

She had pointed out that similar legislation had previously been passed with Section 75 tagging and that one had to consider what effect the JTM’s stance would have on these pieces of legislation. She thought that this argument might have been the one that convinced the JTM to confirm the Section 75 tagging.

The Chairperson of the National Council of Provinces (NCOP) was concerned that although more bills were being tagged as Section 75, they held financial implications for the provinces that stretched their budgets beyond what they had been allocated. This meant that new budgetary implications were imported into legislation without provinces having a say in them. She not think that such matters could be addressed through tagging.

A money bill was an example of proposed legislation that had a financial implication. Only the Minister of Finance could introduce such legislation. The problem the Committee had been faced with could not be dealt with at the JTM level, but at the Committee level. Committees that sought to import provisions that might have financial implications should seek National Treasury’s comments on the matter and then table the legislation before the House. Despite the apparent confusion, she was convinced that the Committee’s stance was correct and could not see how any rational court could find otherwise.

The Chairperson informed the Committee that the Bill would be put before the House the following Tuesday. It would not be debated again. The report reflected that the Committee had complied with the motion to consult with JTM on the matter of tagging. .

Discussion
Ms S Camerer (DA) said that the DA Deputy Whip had indicated that the party would be required to do a declaration.

The Chairperson had not been asked to prepare a declaration and was not aware of any declarations needing to be made. She hoped that the report would address all concerns and felt that if anything else needed to be done it would be done through her as Chairperson.

Mr J Jeffery (ANC) indicated that he sat on the Programming Committee and pointed out that the usual procedure was that the Chairperson spoke to the report. He indicated that the idea was to get the legislation on the programme as soon as possible. Unnecessary declarations would prolong the process. He pleaded for reasonableness from all parties.

Mr S Swart (ACDP), referring to the Constitutional Court’s recent ruling that men could not be raped (see Appendix 2), sought the Members’ feelings on whether the Committee should not issue some statement to clarify that the Bill now addressed that ruling and extended the definition of rape to include rape of men. Many people did not understand that the Bill was about to be passed.

The Chairperson agreed that the Committee would issue a press statement to that effect.

Ms Camerer was pleased with the decision to release the statement but still had concerns about how they would proceed with the Bill that coming Tuesday. If the Chairperson were to speak, the Democratic Alliance (DA) would like to speak too. She had been told that they would be allowed a three-minute declaration.

Mr Jeffery clarified that for every Committee the Chairperson would speak to disagreements. He implored Ms Camerer to clarify this matter with her party whips because there had been no decision that declarations would be made.

The Chairperson also asked Ms Camerer to take the report to the DA whips so that they could see that the report did not speak to the content of the Bill, but was technical in nature. If she did not hear from Ms Camerer by the end of that day she would assume that the DA accepted that there would be no declarations. She stressed that the Committee wanted to have the matter dealt with on Tuesday. Delaying the matter any further because parties insisted on declarations would be highly undesirable, and no cogent reason existed to do so.

Mr Swart agreed that the Bill should be dealt with as soon as possible and did not think that any reference to the content of the Bill needed to be made at the upcoming meeting of the House.

The Chairperson said that the Committee was complying with the “unusual motion” the House had adopted. The matter in question was merely procedural, and the content of the Bill would not be discussed.

The Committee unanimously adopted the report.

The Chairperson said that she appreciated Members’ cooperation during the difficult process. She thought that the Committee had done really good work. She hoped that the report would be useful not only in relation to the Bill, but would also set the standard for how Parliament would in future handle the tagging of bills.

Other announcements
The Chairperson gave the committee updates on the health of her assistant, members of the Committee and departmental officials who had been ill. She advised Members of the passing of Judge A W Kotze. He had been appointed during the apartheid era, but deputized for Ms Gadija Khan when she was appointed president of the regional court. He had also sat on the Western Cape local committee of the Magistrate’s Commission and was enormously supportive of transformation. His passing was a great loss to the judiciary and the country.

The Chairperson congratulated Ms Camerer on her promotion to Chairperson of the Federal Legal Commission.

The meeting was adjourned.

Appendix 1:
De Lange decries ’amateurish advice’
by Wyndham Hartley Parliamentary Editor: Business Day, 17 November 2006

CAPE TOWN — Deputy Justice Minister Johnny de Lange launched a stinging attack on Parliament’s legal advisers, describing their work as “amateurish and unprofessional” after their intervention delayed the passing of the long-awaited Sexual Offences Bill yesterday.

After years of gruelling work, the bill came before the National Assembly only to be referred back to the justice committee because it dealt with issues that were within the competence of provincial health departments.

Parliamentary legal advisers said that because of this health element in the bill, it would have to be processed through a different procedure. The bill, which completely rearranges the legal geography around sexual crimes in SA, provides that rape victims be provided with post-exposure prophylaxis, or PEP, at state cost if they comply with certain conditions.

It also, for the first time in SA’s legal history, makes it possible for men to be deemed raped as well as making forced oral sex to be a crime of rape.

The PEP clause had now baulked the process of the bill almost at its last hurdle. “This decision is based on wrong legal advice,” said De Lange. The quality of legal advice in Parliament simply “got worse and worse.” On top of the ruling that the bill could not pass through Parliament, he said the justice department had not even been consulted on the issue. “This is crazy and this legal advice is amateurish and unprofessional.”

De Lange said that the bill contained issues that were of national competence and one issue of provincial competence.

De Lange said the bill was so complex that it could not be split. He said the test had always been about the “dominant purpose” of the bill and this was about the national competence of justice. “This is again going to mean we will have to wait months to get this bill on the statute book.”

ANC deputy chief whip Andries Nel moved a motion that the bill be referred back to the committee. This was approved.

Appendix 2
Court finds men can't be raped
by Sheena Adams, The Mercury, 11 May 2007

Using a dissenting judgment from Chief Judge Pius Langa as ammunition, activists have expressed grave disappointment at a cautious Constitutional Court ruling that failed to extend the definition of rape to men.

In a majority judgment, the court ruled on Thursday that the definition of rape fell short of the "spirit, purport and the objects of the Bill of Rights". It found that the definition should only be extended to include non-consensual anal rape of women.

Acknowledging that male rape was no less "humiliating, degrading or traumatic", Judge Bess Nkabinde, who delivered the ruling, said the court was restricted by the facts before it that concerned the rape of a nine-year-old girl.

With extensive research showing abuse to be a problem that affected young girls and boys equally, at least one activist said the judgment had succeeded in devaluing the impact of sexual assault on boys.

Joan van Niekerk, the Director of Childline, said it was a surprising conclusion for a court with the responsibility of upholding the principles of equality. She said the issue of male rape, particularly of children, remained "largely unaddressed" by the justice system.

Extensive research undertaken by research company CIET Africa, based on interviews with 283 000 South African children, showed that boys were abused "just as much as girls".

About half of both the boys and girls interviewed had been sexually abused, the study found.

The matter before the Constitutional Court related to the case of Fanuel Sitakeni Masiya, who was found guilty of anally penetrating a nine-year-old girl in 2005.

He was found guilty of rape and not indecent assault in the Sabie regional court, and the conviction of rape was confirmed by the Pretoria High Court last year.

Masiya then appealed to the Constitutional Court against the extension of the definition.

Judge Nkabinde emphasised that the court was not being disrespectful to male bodily integrity, or insensitive to the trauma suffered by male rape victims. But changing the definition to include male rape would encroach on the "legislative terrain", he said.

But Van Niekerk said that - in addition to devaluing the impact of sexual assaults on boys - the ruling also failed in that it did not deal with female-on-female penetrative assaults where objects were used.

Liesl Gerntholtz, Director of the Tshwaranang Legal Advocacy Centre, said the ruling was particularly disappointing in light of the much-delayed Sexual Offences Bill, which is before parliament.

She said it was unfortunate that only two judges had decided against a cautious approach.

Judge Nkabinde's judgment may have been the majority judgment, but the two dissenting judges, Chief Justice Langa and Judge Albie Sachs, raised pertinent points that could be used should a similar matter involving a young boy come before the court again.

Judge Nkabinde conceded that extending the definition to include males would "no doubt be dealt with in an appropriate fashion either by the legislature or the courts when the circumstances make it appropriate and necessary to do so".

Judge Langa found that even if extending the definition to include males amounted to a slight departure from the facts of the case, it was warranted.

Once it was accepted that anal rape was "as severe an infringement of the victim's dignity" as vaginal rape, it "made no sense" to distinguish between the two. Doing so "reinforced dangerous, gendered stereotypes".

Rape was not about men and women, but about the expression of power through degradation and violation of a victim's dignity and bodily integrity, he said.

The court held that the extended definition could not apply retrospectively to Masiya.

It therefore set aside Masiya's conviction of rape, replacing it with a conviction of indecent assault.

His case was remitted to the Sabie regional court for sentencing.