DEPARTMENTAL BRIEFING ON PROGRESS MADE WITH REGARD TO PREVENTION OF SEXUAL ABUSE OF CHILDREN

1. Introduction

The Department of Justice and Constitutional Development welcomes the opportunity to brief the Portfolio Committee on Social Development on progress made with the implementation of the recommendations made by the Parliamentary Task Group on the Sexual Abuse of Children. While specific reference is made to the Department of Justice and Constitutional Development in the report, recommendations relating to the Department are made throughout the report. It must also be pointed out that some, if not most, of the Task Group’s specific recommendations in respect of the drafting of provisions for either the new sexual offences or child care legislation are accommodated in the draft Bills submitted by the South African Law Reform Commission.

For ease of reference, this document follows the paragraph headings used in the report of the Task Group.

Paragraph 3.5: Criminal Justice System
Paragraph 3.5.1.3: South African Police Service: Recommendations:

As a point of departure, it must be pointed out that legislation dealing with sexual offences falls within the functional competency of the Department of Justice and Constitutional Development and not the Department of Safety and Security. The assignment of the responsibility to affect amendments to the sexual offences legislation in the report to the Department of Safety and Security, is therefore incorrect.

Recommendations:
Be that as it may, the Task Group recommended that amendments to the Sexual Offences Act be tabled as soon as possible and be processed as a matter of priority. In addition, it is recommended that the legislation address the need for inter-sectoral cooperation between the police, health professionals, social services and justice officials.

South African Law Commission:
In this regard, the Department is pleased to report that the South African Law Reform Commission has completed its investigation into sexual offences and has handed to the Minister for Justice and Constitutional Development, its report and a draft Sexual Offences Bill. This report and draft Bill are receiving the urgent attention of the Department with a view to approach Cabinet for permission to introduce new sexual offences legislation in Parliament as soon as possible.

Department of Justice and Constitutional Development:
As stated in the report, the Department of Justice and Constitutional Development believes a common approach by all the relevant stakeholders is required and advocates for strong inter-sectoral cooperation within the National Program of Action framework. The draft Sexual Offences Bill proposed by the Commission also specifically provides for inter-sectoral cooperation between the various government agencies involved.

The Department accepts that amendments can and will have to be effected to various pieces of legislation to improve the management of sexual offences cases. However, given the Commission’s review of the sexual offences legislation, the Departmental process currently underway, and the desire to avoid ad hoc amendments, the Department is of the view that such a legislative process be conducted in a planned and holistic manner. In addition, should the Commission’s proposals be accepted, consequential amendments to various pieces of legislation will have to be effected. Much also depends upon whether the Commission’s proposals on rape will be accepted, as boys presently cannot be raped.

The recommendation of the Task Group to amend Schedule 6 of the Criminal Procedure Act, 1977 to deny bail to offenders where boys under 16 years of age are raped, cannot be dealt with in isolation. Here the Department is of the view that statutory intervention is first required to criminalize, as rape, the unlawful anal penetration of boys and girls under 16 years of age. Consequential amendments to the relevant schedules of the Criminal Procedure Act, 1977 would then follow.

As far as the Task Group’s recommendation is concerned that consensual sexual relations with males under 16 years of age be criminalized, it is respectfully pointed out that consensual sexual relations with a person under 19 years of age by a person of the same sex already constitutes a criminal offence in terms of the Sexual Offences Act, 1957. Contraventions of section 14 of the Sexual Offences Act, 1957 are commonly referred to as "statutory rape". It is worth noting that the age difference (16 years versus 19 years) allowed for conventional vaginal intercourse, as opposed to homosexual (anal) intercourse, is facing a constitutional challenge.

Paragraph 3.5.2.6 Court system: Recommendations:

In relation to the effective prosecution of cases:

Recommendation:
In relation to the effective prosecution of cases, the Task Group recommended that the Department of Justice and Constitutional Development establish clear guidelines for the handling of cases involving sexual offences, that training in these guidelines be made mandatory for all levels of personnel in the court system, and that the guidelines be communicated clearly to all complainants and witnesses before the commencement of a trial.

Management Guidelines for Sexual Assault Victims: Department of Justice and Constitutional Development:

National Policy Guidelines for Handling Victims/Survivors of Sexual Abuse were produced under the direction of the Deputy Minister of Justice and launched in September 1998. The purpose of the guidelines is to reduce secondary victimisation, facilitate the healing process for victims and to improve victim co-operation in the criminal justice process. The guidelines seek to ensure that victims or survivors of sexual offences are handled humanely, with dignity and that their needs are responsively addressed by all relevant service providers. The guidelines include the requirement of the use of technical aids such as one-way mirrors and closed circuit television to insulate children from secondary traumatisation through contact with the alleged perpetrator.

In July 2002, the Gender Directorate re-printed 650 copies of the Policy Guidelines, which were distributed to Magistrates during a Service Delivery Workshop held for Magistrates in July 2002.

National Prosecuting Authority:
The Sexual Offences and Community Affairs Unit (SOCA) in the Office of the National Director of Public Prosecutions has furthermore set out clear guidelines for Prosecutors in Sexual Offences Cases. Guidelines for all role players in Sexual Assault cases including victims, were also set down a few years ago and is continually in the process of being updated.

The SOCA Unit has recently been in discussions with the South African Police Service regarding the updating of their policies. The National Prosecuting Authority is also in the process of updating their own policy manuals. The National Prosecuting Authority has however decided to wait for the new Sexual Offences Bill to come into effect as this is going to drastically effect laws relating to sexual offences. Planning for a multi-disciplinary sexual offences manual for prosecutors has also been begun. This manual will be a joint effort between SOCA and Justice College, and will be a comprehensive guide for all prosecutors dealing with sexual offences. The project forms part of the CJSP programme. In addition to the sexual offences manual, the SOCA Unit is also in the process of updating the Child Law manual for prosecutors. In order to give effect to the provisions of the new Sexual Offences Bill, the National Prosecuting Authority and the Department of Justice and Constitutional Development have agreed to establish a multi-disciplinary team to draft a comprehensive protocol document for the management of sexual offences. This process will include all relevant departments and stakeholders, and will guide the future management of these offences. The Bill requires this protocol to be developed. The legislative process of the new Bill will dictate the timeframe for the completion of the above manuals and protocols.


Draft Sexual Assault Policy, prepared by the Department of Health:
The Department of Justice and Constitutional Development has also built a good working relationship with the National Department of Health, who is busy updating it’s Sexual Assault Policy for victims of Sexual Assault and which includes the following:

Crime kits to be kept in health care facilities. Facilities for storage of evidence in health care facilities for victims still to decide on reporting. Include guidelines on management of child victims of abuse in the Revised National Guidelines on the Management of Survivors of Sexual Violence. Draft guidelines on health-related management of children who have been abused have been developed. Anti-retroviral therapy for victims of rape is being considered. Draft guidelines for children have been developed. An effective on-going supervisory system that mentors health workers trained in this field and ensures a high quality of service is needed. This is an ongoing activity and part of the operational plans of the Sub-Directorate: Child Health of the National Department of Health.

Recommendation:
The Task Group further recommended that the Department of Justice and Constitutional Development provide the relevant Parliamentary Committees with precise statistical information on conviction rates in relation to sexual offences.

Department of Justice and Constitutional Development:

The Department of Justice and Constitutional Development does not have such precise information. This is a South African Police Service function with linkages to the SAPS Criminal Records Centre and the Family Violence, Child Protection and Sexual Offences Unit (FCS) of the South African Police Service. Statistics received from the FCS Units in this regard, are as follows:

National Prosecuting Authority:
The SOCA Unit and the National Prosecuting Service (NPS) in the Office of the National Director of Public Prosecutions, do presently keep detailed statistics of all sexual offences courts. Currently, statistics are kept for 29 courts. 11 are to be added soon when the dedicated Sexual Offences Courts start. The Department of Justice and Constitutional Development and the National Prosecuting Authority are aware of the fact that these are not the only courts dealing with sexual offences cases, and are in the process of re-looking at the statistics system. We want to develop the system to allow for a detailed breakdown of rape cases in the ordinary regional courts. We also want the system to be able to provide a breakdown of the age of the victim and the offender. The system will also have to be updated to take into account the offences created by the new Sexual Offences Bill, once it passes Parliament.

This is traditionally a SAPS function, but the NPA has found it useful to keep statistics of all courts. This allows the NPA to monitor the performance of courts and prosecutors.


Recommendations:
The Task Group made two specific recommendations to be implemented by the National Director of Public Prosecutions. These are that directives be issued to the effect that cases may not be withdrawn without the consent of the Director of Public Prosecutions and to report all knowledge of corruption concerning such withdrawals.

National Prosecuting Authority:
The National Director of Public Prosecutions has made recommendations to the South African Law Commission in this regard, and suggested that the NDPP should be the only person with the authority to withdraw any rape case. This recommendation was accepted by the Commission and is included in the new Bill. In the past we had found that the police were withdrawing many rape cases. This untenable situation has been addressed, and this practice has been halted.

The offices of the Directors of Public Prosecution are aware of the problems that exist with regard to corruption, and they have introduced several mechanisms to address these concerns.

South African Law Commission:
The draft Sexual Offences Bill also specifically provides that the decision as to whether the investigation by a police official of a complaint that a sexual offence has been committed should be discontinued, rests with the National Director of Public Prosecutions.

Recommendation:
The Task Group further recommended that the relevant Portfolio Committees be briefed by the Department of Justice and Constitutional Development on the progress made with regard to eliminating inefficiencies and corruption among justice officials, as well as the status of the draft Anti-Corruption Bill.

Department of Justice and Constitutional Development:
The Department of Justice and Constitutional Development has instituted an Anti-Corruption Hotline run by the Office of the Chief of the National Inspectorate, which has had many various successes. The Department also works narrowly with the Scorpions Unit of the National Directorate of Public Prosecutions, who is tasked with the investigation of and prosecution of corruption in the Criminal Justice System.

Relating to the elimination of inefficiencies, it is trusted that the dedicated Sexual Offences Courts, staffed with dedicated personnel and resourced adequately, will help address some of the inefficiencies in the Criminal Justice System and the Courts.

Specialised Sexual Offences Courts:

The Court Services Business Unit of the National Department of Justice and Constitutional Development and the Units in the Office of the National Director of Public Prosecutions responsible for Sexual Offences and Community Affairs and the National Prosecuting Service, have established a close working relationship and have developed a National Strategy for the Roll-out of Sexual Offences Courts, so as to prioritise the hearings relating to sexual offences in dedicated Sexual Offences Courts on a Regional Court level. A strategy in this regard, has also been developed and submitted to the Director-General for Justice and Constitutional Development and the National Director of Public Prosecutions, which has also been approved by them. Twenty-nine Sexual Offences Courts have already been started in crisis areas, although some of them are not fully compliant with the Sexual Offences Courts Blueprint yet. Courts have been dedicated or are in the process of being dedicated to the hearing of Sexual Offences cases, in the following areas: Protea Soweto (4 courts); Welkom; Port Elizabeth; Klerksdorp; Bethlehem; Parow (2 courts); Cape Town; Wynberg (4 courts); Bloemfontein (3 courts); Pretoria (3 courts); Kimberley; Thlabane; Pietermaritzburg; Atlantis; Sebokeng; Thabamoopo; Mmabatho; Umlazi; Thohoyandou; Umtata; Nelspruit; George; Vosloorus; Evander; Inkanyezi; Verulam; Upington; Vredendal; Pinetown; Odi; Kuilsriver; Edenvale; Mankweng (Pietersburg); Paarl; Khayelitsha; Mitchells Plain; Ladysmith; and Vryheid.


for dedicated Sexual Offences Court
National Prosecuting Authority:

The SOCA Unit had meetings with most Provincial Police Commissioners regarding the problematic issue of withdrawal of sexual offences cases. The Provincial Commissioners have issued instructions to the effect that no sexual offences cases can be withdrawn by anyone other than a prosecutor. Even cases that were filed as ‘undetected’ should be taken to the prosecutor for a decision.

South African Law Commission:
The Prevention of Corruption Bill [B19 – 2002] is currently before the Justice Portfolio Committee.

Recommendation:
Recommendations were made by the Task Group to support the speedy conclusion of sexual offences cases. Linked hereto were recommendations to the effect that officials in the criminal prosecuting system have access to adequate resources and advanced technology to secure convictions and the roll-out of specialized sexual offences courts.

Department of Justice and Constitutional Development:
The Department agrees fully that sexual offence cases must be prioritized. The other recommendations are given effect to by the Department of Justice and Constitutional Development. The Business Unit: Court Services, the SOCA Unit and NPS of the NDPP continue to work closely together and have developed a National Strategy for the Roll-out of Sexual Offences Courts in order to ensure that sexual offence cases are prioritized in dedicated and specialized sexual offences courts at regional court level. A National Project Oversight Committee for Sexual Offences Courts meets monthly to discuss strategic issues.

The Department of Justice and Constitutional Development is not responsible for conducting DNA tests – this is a function of the South African Police Service. However, the Department supports the principle that DNA testing should remain centralized and located with one specialized agency.


In relation to evidence:

Recommendation:
The Task Group recommended that the cautionary rules applicable to complainants in sexual offences, children and single witnesses be abolished in the new sexual offences legislation. In addition it was recommended that the previous sexual history of a complainant in a sexual offence not be admissible as evidence.

South African Law Commission:
These recommendations are in line with what the Law Reform Commission has suggested in the draft Sexual Offences Bill. However, the Commission does not propose the abolishment of the cautionary rule applicable to single witnesses, given recent case law development in this regard. The Department remains open to considering all possible options.

In relation to the protection of survivors of sexual violence:

Recommendation:
The Task Group recommended that all court personnel at courts dealing with sexual offence cases undergo mandatory training to equip them with the necessary skills to deal with victims of sexual violence. In addition it was recommended that the Department give consideration to enhance the language skills of court personnel and to sensitize staff on the cultural aspects faced by such victims.

Department of Justice and Constitutional Development:
Such training is provided by Justice College and members of the National Prosecuting Authority, as well as with funds received from donor agencies for Magistrates and Intermediaries for example. Such training is however, not yet mandatory, as courts still have to function while personnel are being trained. Court personnel also need to be sensitized on gender issues and this is done at each Justice College Seminar and Course with Social Context training.

National Prosecuting Authority:
Although the training is not yet mandatory, the NPA and the DOJCD have embarked on an aggressive training campaign for all role-players in sexual offences. We have also engaged the Departments of Health and SAPS in this regard. Training of the following people has taken place and further training has been planned for the future:
Prosecutors;
Magistrates;
Court Preparation officials;
Intermediaries;
Doctors; and
Police.
This training includes a strong element of social context training, and will hopefully go a long way towards sensitizing role-players.

Justice College:

The Chief: Justice College has reported that court personnel receive training on how to deal with victims of sexual violence. This training is ongoing and specialized courts have been established to adjudicate such cases. Courts of this nature are, besides the courts currently operational, being established in many areas. Training of prosecutors, intermediaries, police officials and magistrates takes place regularly and is ongoing.

One hundred and eighty (180) Regional Court Magistrates received training from 28 to 30 November 2002 in the Strand on the "Judicial Officer and the Child Witness". This was a Justice College initiative. A Business Plan has also been submitted to hold Workshops for Regional Court Magistrates on a provincial basis, to bring them in line with the new developments in the manner and procedure used in Sexual Offences cases.

Ninety (90) South African Police Service, Child Protection Unit officers, received training in Krugersdorp from 24 February 2003 to 14 March 2003 relating to the investigation of Sexual Offences cases.

Magistrates receive social context training provided by Justice College at each seminar/course held. This is to sensitise them not only relating to Sexual Offences issues, but also on gender issues.

The specialized Sexual Offences Courts, which have been established and those which are currently being established, try only to use persons who have had training in the field, to be able to deal with these sensitive issues.

Department of Justice and Constitutional Development:
The Gender Directorate has prioritized the project "Access to Courts" for the year 2003/2004. The aims and objectives of this project are to:
Arranging and holding a workshop for Magistrates with a view to empower them with new insight into judicial methods on how to respond to gender based violence and to achieve poverty alleviation through judicial decision making;
To identify blockages in service delivery in the identified courts and to develop guidelines on addressing those blockages;
To discuss the implementation of the National Guidelines on Handling Victims/Survivors of Sexual Offences and to develop guidelines for the handling of Maintenance and Domestic Violence Cases;
Discuss the protection of the Constitutional rights, because for rights to be real, they should be recognized and made real;
To discuss the development of mechanisms to support the quality of judicial officers, because legal disputes, conflicts, and complaints need to be resolved in a fair and orderly manner so as to promote harmony and peace;
Providing Magistrates with knowledge on how to strengthen the lower court judiciary;
Providing a forum for the judiciary to discuss issues of judicial independence, ethics, judicial accountability and minimum standards for judicial officers; and
To foster a spirit of partnership and cooperation between all service providers and to encourage members of the judiciary to assume leadership in courts in order to protect women and children.



Recommendation:
The Task Group recommended that a category of vulnerable witnesses be created and that such witnesses be entitled to special protection. In addition, it was recommended that the existing provisions in the Criminal Procedure Act, 1977 be strengthened to prevent publication of the identity of sexual offence victims, but also to make explicit provision for criminal prosecution of publishing houses contravening the prohibition.

South African Law Reform Commission:
This supports the recommendations made by the South African Law Reform Commission in this regard.

Department of Justice and Constitutional Development:
As stated earlier, the Department of Justice and Constitutional Development is considering the Commission’s report and the draft Sexual Offences Bill and will certainly keep the Task Group’s recommendation in this regard in mind.

In relation to bail:

Recommendation:
With respect to bail, the Task Group recommended that the National Director of Public Prosecutions consider measures to ensure that the granting of bail is administered uniformly throughout the country; and that, in determining bail conditions, consideration is given to the removal of the alleged abuser from the home shared by the complainant.

National Prosecuting Authority:

The National Directorate of Public Prosecutions and Dr J D’Oliveira, the Head of the National Prosecuting Service, is giving urgent attention to this matter. The Department and the NDPP will certainly keep these recommendations in mind. The conditions of bail are also being discussed with the Magistrates’ Commission and the Judiciary, as the granting of bail is also seen as a judicial discretion.

Recommendation:
In its submission to the Task Group, the Department indicated that the existing bail provisions are adequate after being tightened to deal, amongst others, with repeat offenders. The Task Group, however, found the manner in which bail legislation is implemented unsatisfactory and recommended that the Department of Justice and Constitutional Development brief the relevant Portfolio Committees on the scope of the existing bail legislation with a view to identify and address possible weaknesses in the legislation.

Department of Justice and Constitutional Development:
The Department maintains its position that the problem does not lie with the existing legal provisions, but with their implementation. It is therefore, in our opinion, a training issue, which is being addressed. Obviously, should the Portfolio Committee require a further briefing on the scope of the existing bail legislation and its perceived weaknesses, the Department will gladly comply.

In relation to sentencing:

Recommendation:
In relation to sentencing, the Task Group recommended that the South African Law Reform Commission’s project committee on sentencing brief the relevant Portfolio Committees with regard to progress being made with the draft Sentencing Framework Bill.

South African Law Reform Commission:
The Commission has finalized its investigation into this aspect and has submitted its report on a new Sentencing Framework to the Department of Justice and Constitutional Development. The Commission’s report and draft Sentencing Framework Bill is being considered by the Department.


Paragraph 3.5.3.5 Correctional Services: Recommendations:

In its report, the Task Group recommended that the Department brief the relevant Parliamentary Committees on the measures it intends to take with regard to the sentencing of child offenders in the light of the applicable constitutional imperatives. The report further recommended that the Child Justice Bill be finalized as soon as possible and that the Department brief the relevant Parliamentary Committees on the content of the Bill, as well as the reasons for the delay in processing this legislation.

Department of Justice and Constitutional Development:
The Department is pleased to report that the Child Justice Bill is being deliberated upon by the Portfolio Committee on Justice and Constitutional Development. Should the Portfolio Committee on Social Development require a briefing on the contents of the Child Justice Bill, the Department will gladly assist. Sentencing of offenders, also child offenders, is also addressed in new sentencing legislation proposed by the Law Reform Commission.

Child Justice Bill:

The Department of Justice and Constitutional Development is committed to strengthening the protection of vulnerable people in the criminal justice system. In keeping with this commitment, the Child Justice Bill, No. B.49 of 2002, was introduced into Parliament on 8 August 2002, and the matter is being deliberated upon by the Portfolio Committee on Justice and Constitutional Development at the moment.

The Child Justice Bill seeks to promote crime prevention by dealing appropriately with children when they first come into the criminal justice system.

Application of the Bill:
The Bill applies to any person under the age of 18 years who is alleged to have committed an offence. The minimum age of criminal capacity is raised from seven to 10 years. It is presumed that children between the age of 10 and 14 years lack criminal capacity, but the State may prove such capacity beyond reasonable doubt.

Children in detention:
The South African Constitution, at section 28(1)(g) gives every child the right not to be detained except as a measure of last resort, in which case, he or she may be detained only for the shortest period of time. Despite this provision and numerous ad hoc efforts on the part of the legislature to limit pre-trial detention of children, the government has to continue to grapple with the problem of too many children being detained in prison.

In March 2000, the highest ever number was recorded at 2828. Following government intervention led by the Department of Justice and Constitutional Development, from April 2000, the number of children awaiting trial started to decline significantly and by September 2000, had gone down to 1862. The number has risen slightly since then, the most recent verified statistics being for November 2002, when there were 2256 children awaiting trial in prison.

In order to keep children out of police cells and prisons, the Bill encourages the release of children into the care of their parents. A probation officer will assess every child before the child appears at a preliminary inquiry. A preliminary inquiry is held in respect of every child within 48 hours after arrest and is presided over by a magistrate, referred to as the "inquiry magistrate". Decisions to divert the child away from the formal court procedure to a suitable programme may be taken at the preliminary inquiry stage, if the prosecutor indicates that the matter may be diverted.

Not soft on crime:
The Bill is not soft on crime, however. If a child is not considered suitable for diversion, the matter will proceed to plea and trial. The Bill provides a wide range of sentencing options for children, as alternatives to prison sentences. Children who are 14 years or older, may nevertheless be sentenced to imprisonment in certain circumstances.

Budgeting and Planning for Implementation:
The process of planning for the implementation of the Child Justice Bill has been very innovative. Firstly, the planning and budgeting process started early in the process of law-making. Each decision made during the drafting and development phase was costed and weighed in terms of cost implication and cost benefit. The Bill was the first one ever to be costed whilst still in development at the South African Law Commission.

When the Bill was placed before Cabinet, it was accompanied by an implementation strategy framework. The next step of the planning process looked at what the expected expenditure would be for the first three years of the Bill’s operation. Assisted by the Child Justice Project located in the Department of Justice and Constitutional Development, the Departments have developed a detailed implementation strategy and budget, linked to the Medium Term Expenditure Framework.

The end result is a comprehensive document called the "Implementation Startegy and Budget for the Child Justice Bill". The document provides a complete financial and planning picture at any point of the implementation process. This overall picture of the entire child justice system can, at any point of the implementation process, be broken down into cross-sectoral phases or into individual department components that fold out over a time continuum from 2003 to 2005. In the view of the Department of Justice and Constitutional Development, the approach of planning and budgeting for the Child Justice Bill may serve as a model for every piece of legislation that comes before Cabinet and Parliament in the future.

Positive deliverables of the Bill:
The Bill aims to –
protect children charged with less serious offences from the brutalizing effects of courts and prisons;
Speed up the criminal justice process regarding children by reducing the number of trials;
Involve victims and communities through an emphasis on ubuntu and restorative justice;
Promote moral regeneration by bringing families and communities back to the center of managing the behaviour of children; and
Ensure the safety of the community by retaining a channel for the prosecution, conviction and where necessary, the imprisonment of children committing serious or violent offences.
Recommendation for intersectoral Task Team to establish efficacy of a register of sex offenders:
The Department supports the Task Group’s recommendation that an inter-sectoral task team be established to consider the efficacy of a register of sex offenders. Should the register extend to alleged offenders, as opposed to be limited to convicted sexual offenders, certain constitutional concerns must be overcome. The task team can also consider the arguments presented by the Law Reform Commission for the establishment of a register of persons unfit to work with children.

Paragraph 3.6.3 International instruments for the protection of children:

Recommendations:

Department of Justice and Constitutional Development:
The Department shares the Task Group’s concern at the lack of sufficient empirical data in relation to the commercial sexual exploitation and trafficking of persons in South Africa. In this regard, the Department is pleased to see that the Law Reform Commission has included on its programme an investigation into trafficking of persons. While this investigation is in its initial stages, the Department is assured that the lack of adequate empirical data and a proper legal framework in respect of trafficking in persons will be addressed by the Commission.

The Department also notes that the Commission has on its programme an investigation on the impact of pornography on children. It is worrisome, however, to hear that the Commission is holding back on the investigation pending clarity as to possible amendments to the Films and Publications Act by the Department of Home Affairs.

Paragraph 3.7.2 Commercial sexual exploitation: Recommendations:

The Task Group made several important recommendations in respect of commercial sexual exploitation. As stated previously, the recommendation that the new sexual offences legislation be finalized as soon as possible is misdirected to the Department of Safety and Security. The task of introducing such legislation rests with the Department of Justice and Constitutional Development.
South African Law Reform Commission:
The recommendation of the Task Group that the new child care legislation include a general provision that criminalizes the trafficking of children is accommodated in the Law Reform Commission’s draft Children’s Bill. Clause 317(1) of the draft Bill prohibits the trafficking of a child for purposes of commercial sexual exploitation, an exploitative labour practice, or the removal of body parts.

The Task Group suggested further that the parental rights of persons who traffic their children be suspended immediately and that such parents or care-givers be charged with criminal neglect and abuse. Again, the Commission’s draft Children’s Bill allows for the suspension and eventual termination of parental rights and responsibilities in a variety of situations, including where such parent has trafficked his or her child. Holding parents or care-givers criminally liable for neglect or abuse after trafficking their children is questionable: trafficking is surely a far more serious crime than child neglect or abuse. The Department respectfully submits that the Task Group’s recommendation that the offence of child trafficking deserves inclusion in the Sentencing Framework Bill as a very serious offence is more meritorious than equating trafficking of children with child abuse and neglect.

The recommendation of the Task Group that the child prostitute be treated as a victim and child in need of care and protection is in line with the Law Reform Commission’s principle approach in this regard. While the draft Sexual Offences Bill criminalizes the conduct of all actors involved in child prostitution, the child himself and herself is specifically excluded. Provision is also made in the draft Children’s Bill for such a child to be subjected to a children’s court inquiry where the child prostitute may be found to be in need of care and protection.

The recommendation that the Department of Home Affairs, in partnership with the Department of Safety and Security, ensure that possible loopholes in the Films and Publications Act, 1996 be addressed to combat child pornography in its totality is supported. The Department would suggest, however, that the National Director of Public Prosecutions also be involved in this process.

The Department also supports the recommendation that an obligation be placed on Internet service providers to ensure that child pornography is not hosted on their websites and to monitor their sites. In this regard, the Department would like to point out that the draft Children’s Bill already accommodates this recommendation.

Paragraph 3.8.3 Media:

Recommendations:

Department of Justice and Constitutional Development:
The Department of Justice and Constitutional Development shares the view of the Task Group that any child pornographic image constitutes a permanent form of child abuse and that a zero tolerance approach be adopted when it comes to the production, distribution or possession of such material. In this regard, the Task Group recommended that the Department brief the relevant Parliamentary Committees on its programmes with regard to the training of officials and the judiciary on the role of new technologies in sexual crimes against children.

National Prosecuting Authority:
The SOCA Unit had a meeting with the Films and Publications Board and SAPS (Family Violence, Child Protection and Sexual Offences Unit and Technical Support) around the issues of child pornography. It was agreed to hold joint training sessions for prosecutors, police and magistrates on the combating of child pornography. It is aimed to start such training before the end of May 2003. The SOCA Unit is also in the process of arranging an international conference on child pornography. This will inform us about best practices in this area, and should also assist us with any required legislative changes.

Conclusion:

The Department of Justice and Constitutional Development agrees that the prioritization of fighting crimes against women and children, is of extreme importance. This is also in alignment with the Government’s focus on vulnerable groups and on the view that we need to protect children in particular as they are the future of this remarkable country of ours. The Department has therefore prioritized this focus issue by building close relationships with the National Prosecuting Authority, the South African Police Service, the Magistrates’ Commission, the National Program of Action for Children situated in the Office on the Rights of the Child in the President’s Office, the Departments of Social Development, Health, Education and Labour; and is of the opinion that an intersectoral and co-ordinated approach in this regard, remains of the utmost importance. The Department has consequently assisted in submitting a co-ordinated report from the various Departments on a Co-ordinated Programme to address Violent Crimes against Women and Children in this regard, to Cabinet in March 2003; and will report back in this regard, to the various Parliamentary Portfolio Committees.

It is trusted that this information, will be of assistance.

Thank you.