Hd010206CC(SOB)

BRIEFING:

  PORTFOLIO COMMITTEE ON JUSTICE AND CONSTITUTIONAL DEVELOPMENT

19 JUNE 2006

 

REDRAFTED

CRIMINAL LAW (SEXUAL OFFENCES AND RELATED MATTERS) AMENDMENT BILL, 2006

 

1.            Purpose of briefing:

To provide the Portfolio Committee with a comparison between the—

(i)         the draft Bill (“recommended Bill”) proposed by the South African Law Reform Commission (“SALRC”) as             contained in the Report on Sexual Offences;

(ii)         Criminal Law (Sexual Offences) Amendment Bill, 2003, as introduced (“the introduced Bill”); and

(iii)            provisions of the redrafted Bill, namely the Criminal Law (Sexual Offences and Related Matters) Amendment Bill, 2006 (“the redrafted Bill”).

The emphasis in this document is, however, on the differences between the Bill as introduced into Parliament and the redrafted Bill, since the redrafted Bill is, in essence, the outcome of the deliberations of the Committee.  In other words, it contains the suggestions of the Committee.

 

2.         Reason for a comprehensive briefing:  long time since members of the Portfolio Committee discussed the Bill, and new members have also joined the Committee. 

 

PART I

SALRC REPORT ON SEXUAL OFFENCES

 

3.            Background information:  SALRC Report on Sexual Offences

In 1996 the SALRC was requested to investigate the reform of the criminal justice system in relation to sexual offences by and against children.  The SALRC's initial mandate was expanded, at the request of the then Deputy Minister and the Portfolio Committee on Justice and Constitutional Development, to include¾

*           sexual offences against adults; and

*           the formulation of non-legislative recommendations with regard to the reform of the criminal justice system.

The SALRC submitted its report, which was accompanied by a draft Bill, to the Minister for Justice and Constitutional Development in December 2002.

 

4.         Bill recommended by SALRC

The Bill that was introduced in Parliament, namely the Criminal Law (Sexual Offences) Amendment Bill, 2003 (“Introduced Bill”), differed in a few respects from the draft Bill recommended by the SALRC.  These differences can be summarised as follows:

 

(iA)       Draft Bill

Contained an objectives clause which was aimed at reflecting—

            the normative values that underpin the draft Bill and serve as indicators as to how, and in             which context, the Bill should be interpreted and applied.

The clause highlighted the rights of complainants (victims of sexual offences), the vulnerability of children and the consequences thereof in respect of the prosecution of sexual offence cases, appropriate sanctions for the commission of sexual offences and the need for training of all professionals who are involved in sexual offence cases. 

 

(iB)            Introduced Bill

The Department was of the opinion that so-called "objectives” were more in the nature of guiding principles relating to the adjudication of sexual offences and recommended that the objectives clause should rather be included in a Schedule to the Bill, under the heading Guiding principles to be considered in the application of this Act and the adjudication of sexual offences generally.

 

(iiA)      Draft Bill

The SALRC pointed out that children and victims of sexual offences are potentially more vulnerable than other witnesses, due to the nature of the offence and recommended the inclusion of a provision whereby—

(i)         any complainant or child witness will automatically be declared vulnerable; and

(ii)         other witnesses may be declared vulnerable by the court on account of age, intellectual             impairment, trauma, cultural differences or the possibility of intimidation.

The court will then be in a position to order that certain protective measures should be applied in respect of a vulnerable witness, among others, by appointing a support person to accompany the witness.  The purpose of a support person would be to strengthen and encourage a witness emotionally by his or her physical presence.

 

(iiB)            Introduced Bill

The clause dealing with vulnerable witnesses was not omitted from the Introduced Bill entirely and will be highlighted in Part II of this briefing.  The Department was concerned that it would not be in a position to fund such a service dealing with the appointment of support persons.  CABINET APPROVED THAT THE PROVISION DEALING WITH THE APPOINTMENT OF SUPPORT PERSONS SHOULD BE OMITTED FROM THE BILL.

 

(iiiA)      Draft Bill

The draft Bill contained a clause to the effect that the State must, in respect of all complainants who sustained physical, psychological or other injuries in sexual offence cases, provide appropriate medical care, treatment and counselling.  It read as follows: 

                          21.            (1)            Where a person has sustained physical, psychological or other injuries             as the             result of an alleged sexual offence, such person shall, immediately after the alleged             offence, receive the appropriate medical care, treatment and counselling as may be required for             such injuries.

                        (2)            If a person has been exposed to the risk of being infected by a sexually             transmissible             infection as the result of a sexual offence, such person shall, immediately after     the reporting of the alleged offence to the South African Police Services or to a health care             facility—

            (a)            be advised by a medical practitioner or a qualified health care professional of the             possibility of             being tested for such infection; and

            (b)            have access to all possible means of prevention, treatment and medical care in respect             of possible exposure to a sexually transmissible infection.

                        (3)            The State shall bear the cost of the care, treatment, testing, prevention and             counselling as referred to in this section.

 

However, it was noted prior to introduction of the Bill that this clause is not restricted to victims of sexual offences.  The word ‘person’ is used which includes family members of victims.  ‘Injuries’ are broadly defined to include physical, psychological or other injuries.  This clause provides that appropriate medical care, treatment and counselling should be provided. Treatment is not limited to medical treatment.  It was clear that the above provision would lead to substantial financial expenditure for the State (especially the provision of medical care and counselling to complainants) which required further consultation with the departments concerned and Cabinet was informed accordingly.  CABINET APPROVED THE OMISSION OF THE CLAUSE FROM THE BILL.  (It should be noted that the redrafted Bill contains a clause that flows from the so-called treatment clause and will be discussed in Part II of this briefing.).

 

(iiiA)      Draft Bill

The draft Bill also contained four clauses dealing with the implementation of the proposed legislation.  These provisions envisaged—

(i)            implementation of the proposed legislation by organs of State in the national, provincial and             local spheres of government;

(ii)         placing an obligation on the Minister to prepare a national policy framework to guide the             implementation, enforcement and administration of the Act to ensure acceptable and uniform             treatment of sexual offence matters;

(iii)            prescribing the content of the national policy framework; and

(iv)            requiring the Minister to consult with all organs of State, the public and non-governmental             organisations.

 

(iiiB)            Introduced Bill

The view was held that the proposed provisions dealing with the national policy framework could give rise to delays and difficulties in implementing the legislation.  CABINET THEREFORE APPROVED THAT  PROVISIONS OF THIS NATURE SHOULD BE FAR LESS ELABORATE.  A LESS DETAILED PROVISION, GIVING THE JUSTICE MINISTER THE RESPONSIBILITY TO IMPLEMENT THE LEGISLATION WAS THEREFORE INCLUDED IN THE introduced Bill.

 

PART II

CRIMINAL LAW (SEXUAL OFFENCES) AMENDMENT BILL, 2003

 

5.            Background Information:  Passage of Introduced Bill

Passage of the Bill through the Parliamentary process—

*           Bill introduced — towards the end of 2003;

*           the Portfolio Committee — considered oral and written representations, deliberated on the Bill and             instructed the Department to prepare a working document;

*           the working document — submitted to the Committee shortly before the April 2004 elections; and

*           the Committee mandated the then Chairperson to interact with the Department in order to develop a             redrafted version of the Bill for further deliberations after the elections.

 

6.            Overview of introduced and redrafted Bills

6.1            Introduced Bill

                        *            roughly divided into two parts;

* first part (clauses 2 to 13):  substantive provisions dealing with rape, sexual violation, oral genital sexual violation, compelled or induced indecent acts and a number of offences in respect of children and mentally impaired persons such as the commission of sexual acts within the view of children and mentally impaired persons, sexual acts in a broader sense with certain children, the prostitution of children and mentally impaired persons and the proposed extension of common law incest;

* second part (clauses 14 to 27):  procedural provisions dealing with witnesses to be notified of protective measures, vulnerable witnesses, evidence of previous consistent statements, evidence of surrounding circumstances, application of caution and the requirement for corroboration, drug and alcohol treatment orders, supervision of dangerous sexual offenders, decisions regarding police investigations, extra-territorial jurisdiction, non-disclosure of conviction of sexual offence, national policy framework, regulations, amendment and repeal of laws, application of Act in relation to Sexual Offences Act, 1957.

 

6.2            Redrafted Bill

                        *            divided into 7 Chapters (each Chapter is subdivided into a number of Parts);

                        *            chapter 1:  Definitions and Objects;

                        *            chapter 2:  “sexual offences” generally;

* chapters 3 and 4:  are devoted to sexual offences against children and mentally disabled persons, respectively;

* chapter 5:  services for victims and the compulsory HIV testing of sexual offenders;

* chapter 6:  National Register for Sex Offenders; and

* chapter 7:  general provisions.

 

PROVISIONS OF THE INTRODUCED AND REDRAFTED BILLS

 

7.         Long title and pre-amble

 

            Introduced Bill:

7.1        Long title indicated that the Bill aims to—

(i)         amend the law relating to certain sexual offences; and

(ii)         provide for the amendment and repeal of certain laws.

 

7.2        The preamble reflected the following—

(i)         the rights of all people enshrined in the Constitution, as far as they relate to sexual violence;

(ii)         South Africa’s international legal obligations towards the eradication of violence against women and children;

(iii)        the vulnerability of women and children; and

(iv)        the need to strengthen the State’s commitment to address the pandemic of sexual offences committed in the country.

 

            Redrafted Bill:

7.3        Since the redrafted Bill contains more clauses than the introduced Bill the long title and preamble are more comprehensive.  Provisions of Bill will be discussed first before highlighting the contents of the long title and preamble, suffice to say that they provide a brief overview of the contents of the Bill.

 

8.            Chapter 1:  Definitions and Objects:

 

            Introduced Bill:

8.1        All the definitions in clause 1 of the introduced Bill, with the exception of the definition of an “act which causes penetration” (definition was replaced with the definition of “sexual penetration”), are repeated in the redrafted Bill.

 

            Redrafted Bill:

8.2.1     Chapter 1 consists of 2 clauses, namely the definitions (clause 1) and objects (clause 2) clauses, respectively.  Clause 1 of the redrafted Bill, dealing with “Definitions and interpretation of Act”, contains a number of new definitions that were not in the introduced Bill, for example, definitions of—

*           "HIV";

*           “body fluid”;

*            "pornography";

*           “sexual act”;

*           "sexual conduct";

*           “sexual penetration”; and

*           “sexual violation”.

The definitions are generally self-explanatory and will be highlighted, where necessary, during the course of the discussions on the provisions of the redrafted Bill. 

 

8.2.2     Since most of the offences created in the Bill deal with the issue of consent or the lack thereof, it was deemed necessary to include in clause 1, two additional subclauses, elaborating on the question of consent that apply throughout the Bill.  Clause 1(2) consequently provides that “consent” means voluntary or uncoerced agreement.  Clause 1(3) sets out the circumstances in which a person does not voluntarily or without coercion agree to an act of sexual penetration, sexual violation or any other act which is criminalised in the Bill.  These circumstances are not intended to be a closed list and include circumstances, for instance, where the complainant submits or is subjected to a sexual act as a result of—

*           force or intimidation;

*           a threat of harm;

*           where there is an abuse of power or authority;

*           where the sexual act is committed under false pretences or by fraudulent means; and

*           where the complainant is incapable in law of appreciating the nature of the sexual act, eg  being asleep, unconscious, a mentally disabled person or a child below the age of 12 years.

In order to make the interpretation of the legislation user-friendly, clause 1(3) also identifies the different possible roleplayers in the commission of the sexual offences contained in the Bill, by referring to the accused person as "A", to the complainant as "B", to a third person as "C" and to another person as "D".

 

9.         Objects

9.1            Introduced Bill: 

No objects clause.

9.2            Redrafted Bill: 

Objects clause reflected in Clause 2 (clause highlights the need to criminalise all forms of sexual abuse or exploitation, the plight of victims and the promotion of service delivery in the criminal justice system).

 

10.            Chapter 2:  Sexual offences:

Chapter 2 of the redrafted Bill, dealing with sexual offences in general, is divided into four Parts.  The provisions of the introduced Bill that are relevant in this regard can be found in clauses 2 to 6 of that Bill.

 

10.1      Part 1:  Rape and compelled rape:

 

            Introduced Bill:

10.1.1            Clauses 2 to 4 of the Introduced Bill aimed to introduce offences that are characterised by penetration of some form or another.

 

10.1.2   Clause 2 of the introduced Bill, dealing with the offence of rape, was included in the Bill on the basis that the common law offence of rape reflects certain shortcomings, namely—

(i)         it is gender specific (only a male can commit the offence and the victim can only be a female);

(ii)         it excludes anal or oral penetration or the insertion of foreign objects into bodily orifices; and

(iii)        an irrebuttable presumption exists that a girl under the age of 12 years is incapable of consenting to sexual intercourse while no similar presumption exists in the case of boys.

 

10.1.3   In terms of subclause (1) a person will be guilty of rape if that person—

unlawfully and intentionally commits an act which causes penetration to any extent whatsoever by the genital organs of that person into or beyond the anus or genital organs of another person. 

This clause addresses the gender specific nature of common law rape in terms of which it is possible for a man to be convicted of the rape of another man.  Subclause (2) represents a move away from the requirement of "the absence of valid consent to intercourse by a female" by placing the emphasis on the fact that an act which causes penetration will be prima facie unlawful if it is committed¾

*           in any coercive circumstance;

*           under false pretences or by fraudulent means; or

*           in respect of a person who is incapable in law of appreciating the nature of an act which causes penetration.

 

10.1.4            Coercive circumstances, in terms of subclause (3), include any circumstances where there is any use of force, or any threat of harm, against the complainant or another person or against the property of the complainant or that of any other person.  An abuse of power or authority to the extent that the person in respect of whom an act of penetration is committed, is inhibited from indicating his or her resistance to such an act, or his or her unwillingness to participate in such an act, also constitutes coercive circumstances. 

 

10.1.5            Subclause (4) aims to regulate those circumstances which constitute false pretences or fraudulent means, namely, where a complainant is led to believe that he or she is committing an act which causes penetration with a particular person who is in fact a different person or that the act is something other than that act.  Subclause (5) enumerates the circumstances in which a person is incapable of appreciating the nature of the act that causes penetration.  These are, for example, where the person is, at the time of the commission of the act, asleep, unconscious, mentally impaired or below the age of 12 years.

 

10.1.6            Subclause (6) confirms that a marital or other relationship is not a defence to a charge of rape (clause 55 of the redrafted Bill) and subclause (7), among others, repeal the irrebutable presumption that a female person under the age of 12 years cannot consent to sexual intercourse.

 

10.1.7   Clause 3 of the introduced Bill aimed to introduce the crime “sexual violation” which amounted to the penetration of the genital organs or anus of a person with any object (other than the genital organs of the transgressor).  Clause 4 of the introduced Bill aimed to regulate the oral genital sexual violation which amounted to the penetration of the mouth of the complainant by the genital organs of the transgressor or those of an animal.

 

10.1.8   The aim with clause 5 of the introduced Bill was to ensure that the provisions of clause 3 (the rape clause) that deal with those circumstances pointing to the prima facie unlawfulness of certain acts and defences at common law are made to apply in respect of clauses 3 (sexual violation) and 4 (oral genital sexual violation).

 

10.1.9   WHEN CONSIDERING THE PROPOSED THREE SEPARATE OFFENCES THE PORTFOLIO COMMITTEE WAS OF THE OPINION THAT THESE CLAUSES DREW AN ARTIFICIAL DISTINCTION BETWEEN ACTS THAT CONSTITUTE SEXUAL PENETRATION.  REGARDING THE ATTEMPT TO MOVE AWAY FROM THE LACK OF CONSENT REQUIREMENT IT WAS NOTED THAT CONSENT STILL REMAINS A DEFENCE. 

 

            Redrafted Bill:

10.1.10 The Department was consequently requested to combine the three proposed crimes into a single crime.  This necessitated the inclusion of a definition of “sexual penetration” in clause 1 which is defined as including any act which causes penetration to any extent whatsoever by—

(a)            the genital organs of one person into or beyond the genital organs, anus, or mouth of another person;

(b)        any other part of the body of one person or, any object, including any part of the body of an animal or any object resembling the genital organs of a person or an animal, into or beyond the genital organs or anus of another person; or

(c)            the genital organs of an animal into or beyond the mouth of another person.

 

10.1.11 Another important definition which was included in the redrafted Bill is that of “consent”.  Clause 1(2) consequently provides that “consent” means voluntary or uncoerced agreement.  Clause 1(3) builds on this, by setting out the circumstances in which a person does not voluntarily or without coercion agree to an act of sexual penetration, sexual violation or any other act which is criminalised in the Bill.  These circumstances are not intended to be a closed list and include, for instance, when the complainant submits or is subjected to a sexual act as a result of—

*            force or intimidation;

*            a threat of harm;

*            where there is an abuse of power or authority;

*            where the sexual act is committed under false pretences or by fraudulent means; and

*           where the complainant is incapable in law of appreciating the nature of the sexual act, eg  being asleep, unconscious, a mentally disabled person or a child below the age of 12 years.

 

10.1.12 Clause 3 of the redrafted Bill, dealing with rape, consequently provides that—

A person (“A”) who unlawfully and intentionally commits an act of sexual penetration with a complainant (“B”) without the consent of B, is guilty of the offence of rape.

 

10.1.13            Proposed new clause 4 deals with compelled rape and aims to criminalise those actions where a perpetrator compels a third person to rape another as rape.  It was agreed that the Department should draft a  provision that will make it possible to convict a person who compels another person to rape a third person, as a perpetrator and not as an accomplice to rape, as is currently the approach being followed in certain cases.  Clause 4 of the redrafted Bill, dealing with compelled rape, consequently provides that—

Any person (“A”) who unlawfully and intentionally compels a third person (“C”), with or without the consent of C, to commit an act of sexual penetration with a complainant (“B”), without the consent of B, is guilty of the offence of compelled rape. 

 

10.2      Part 2:  Sexual assault, compelled sexual assault and compelled self-sexual assault:

 

            Introduced Bill

10.2.1   Clause 6 of the introduced Bill aimed to regulate compelled or induced indecent acts.  An "indecent act" is defined in clause 1 as any act which causes—

            * direct or indirect contact between the anus or genital organs of one person, or in the case of a female, her breasts and any part of the body of another person or any object, including any part of the body of an animal;

            *            exposure or display of the genital organs of one person to another person; or

            *            exposure or display of any pornographic material to any person against his or her will or to a child.

 

Clause 6 of the introduced Bill therefore provides that—

A person who unlawfully and intentionally compels, induces or causes another person to engage in an indecent act with—

(a) the person compelling, inducing or causing the other person to engage in the act;

(b) a third person;

(c) that other person himself or herself;  or

                        (d)            an object, including any part of the body of an animal,

                        in circumstances where that other person—

                        (i)            would otherwise not have committed or allowed the indecent act; or

            (ii) is incapable in law of appreciating the nature of an indecent act, including the circumstances set out in section 2(5),

is guilty of the offence of having compelled, induced or caused a person to engage in an indecent act and is liable upon conviction to a fine and imprisonment for a period not exceeding five years.  

 

10.2.2   IT WAS AGREED THAT THIS DEFINITION SHOULD BE EXTENDED TO COVER ALL ASPECTS OF THE COMMON LAW CRIME OF INDECENT ASSAULT AND TO THEN REPEAL THE COMMON LAW CRIME OF INDECENT ASSAULT.

 

            Redrafted Bill:

10.2.3   Clause 5(1) of the redrafted Bill consequently provides that—

A person (“A”) who unlawfully and intentionally sexually violates a complainant (“B”), without the consent of B, is guilty of the offence of sexual assault. 

 

The term “sexually violates” is defined in clause 1 as including “any act which causes—

(a)        direct or indirect contact between the –

            (i) genital organs or anus of one person or, in the case of a female, her breasts, and any part of the body of another person or an animal, or any object, including any object resembling the genital organs or anus of a person or an animal;

            (ii) mouth of one person and 

            (aa) the genital organs or anus of another person or, in the case of a female, her breasts;

            (bb) the mouth of another person;

            (cc) any other part of the body of another person, other than the genital organs or anus of that person or, in the case of a female, her breasts, which could –

                        (aaa) be used in an act of sexual penetration;

                        (bbb) cause sexual arousal or stimulation;  or

                        (ccc) be sexually aroused or stimulated thereby;  or

            (dd) any object resembling the genital organs or anus of a person, and in the case of a female, her breasts, or an animal;  or

            (iii) the mouth of the complainant and the genital organs or anus of an animal;

(b)        the masturbation of one person by another person;  or

(c)        the insertion of any object resembling the genital organs of a person or animal, into or beyond the mouth of another person,

but does not include an act of sexual penetration and 'sexually violates' has a corresponding meaning.”.

 

10.2.4   Clause 5(2) of the redrafted Bill deals with the situation where A unlawfully and intentionally inspires the belief in B that B will be sexually violated, similar to the current position in our common law in respect of assault common (sexual assault is a form of assault and all principles applicable to assault common are also applicable to the specific forms of assault, in this case sexual assault).

 

10.2.5   Clause 6 of the redrafted Bill, dealing with compelled sexual assault, is similar to the offence of compelled rape and requires no further explanation.

 

10.2.6   Clause 7 of the redrafted Bill deals with compelled self-sexual assault and is intended to cater for the situation where a complainant (“B”) is compelled by the accused (“A”) to sexually assault himself or herself, for instance by self–fondling of breasts or by inserting his or her own fingers into his or her genital organs or anus, an act that would currently constitute indecent assault.  Clause 7(a), for instance, caters for the situation of compelled self-breast fondling; it is important therefore to refer to the new definition of “sexual conduct”, particularly paragraphs (a) and (e) thereof, which refer to “masturbation” and “sexually suggestive or lewd acts”, respectively.  Clause 7(b), dealing with compelled self-penetration of the anus or genital organs, expressly excludes an act of sexual penetration, simply because sexual penetration in the definition clause pre-supposes penetration by one person of another person.

 

10.3      Part 3:  Exposure or display of or causing exposure or display of sexual acts or genital organs, anus or female breasts (“flashing”) or pornography to an adult (persons 18 years or older):

 

            Introduced Bill:

10.3.1  Paragraphs (b) and (c) of the definition of “indecent act” in the introduced Bill, among others, defined the “exposure or display of the genital organs of one person to another person” and “exposure or display of any pornographic material to any person against his or her will or to a child” as an indecent act. 

 

10.3.2   THE DEPARTMENT WAS REQUESTED TO CONSIDER THE DELETION OF PARAGRAPH (C) FROM THE DEFINITION AND TO REDRAFT IT AS A SEPARATE OFFENCE. 

 

            Redrafted Bill:

10.3.3   Clause 10 of the redrafted Bill consequently aims to criminalise the unlawful and intentional exposure or display of or causing exposure or display of pornography to another person who is 18 years or older without his or her consent and provides as follows:

Exposure or display of or causing exposure or display of pornography to person 18 years or older

10.            A person (“A”) who unlawfully and intentionally, whether for the sexual gratification of A or of a third person (“C”) or not, exposes or displays or causes the exposure or display of any pornography to a complainant 18 years or older (“B”), without the consent of B, is guilty of the offence of exposing or displaying or causing the exposure or display of pornography to a person 18 years or older.

 

10.3.4   The Committee also agreed to insert a clause to deal with the exposure or display or causing exposure or display of a sexual act to an adult against his or her will.  It is important to note that “sexual act” is defined to include both acts of sexual penetration and sexual violation.  Clause 8 of the redrafted Bill gives effect to this and reads as follows:

Exposure or display of or causing exposure or display of sexual act to person 18 years or older

8.             A person (“A”) who unlawfully and intentionally, whether for the sexual gratification of A or of a third person (“C”) or not, exposes or displays or causes the exposure or display of, a sexual act to a complainant 18 years or older (“B”), without the consent of B, by causing or compelling B to watch A or another person (“D”) engaging in a sexual act, is guilty of the offence of exposing or displaying or causing the exposure or display of a sexual act to a person 18 years or older.

 

10.3.5   A similarly worded clause 9 of the redrafted Bill deals with “flashing”.

 

10.4      Part 5:  Incest, bestiality and sexual acts with corpse:

 

            Introduced Bill:

10.4.1   Clause 11 of the introduced Bill encapsulated the recommendation that the common law offence of incest should be extended to include the different forms of sexual penetration as opposed to the common law offence that only applies to penetration of the genital organs.  The proposed extension of the common law offence of incest was contained in clause 13 of the introduced Bill.

 

            Redrafted Bill:

10.4.2            Clauses 11, 12 and 13 of the redrafted Bill deal with “incest”, “bestiality” and “sexual act with corpse”, respectively.  These provisions are self-explanatory and, to a large extent, constitute a repetition of the relevant common law crimes and do not require any further clarification.  However, it should be noted that—

(i)         clause 11 extends the common law crime of incest to all instances of sexual penetration and sexual violation as opposed to sexual intercourse between a man and a women which is currently the common law position[1];

(ii)         the common law crime of “bestiality” will now be extended by clause 12 to include the penetration, to any extent whatsoever, by the genital organs of a person ("A") into or beyond the mouth, genital organs or anus of an animal or the penetration of the genital organs of an animal into or beyond the mouth, genital organs or anus of A, as well as the masturbation of an animal[2]; and

(iii)        since the ambit of the Bill is limited to sexual offences only the “sexual element” of the common law crime of the “violation of a corpse” will be repealed once clause 13 is enacted (read with clause 63(1)(b))[3].

 

11.        Chapter 3:  Sexual offences against children:

In line with the suggestion of the Committee, Chapter 3 is intended to be a chapter containing specific sexual offences against children.  It is divided into two parts.

 

11.1      Part 1:  Consensual sexual acts with certain children: 

 

            Introduced Bill:

11.1.1   Clause 9 of the introduced Bill is intended to replace the existing section 14 of the Sexual Offences Act, 1957.  Section 14 of the Sexual Offences Act, 1957, provides for the following:

*           16 years is the minimum age below which the law does not recognise the consent of either a boy or girl to (heterosexual) intercourse;

*           19 years is the minimum age for both male and female persons to be able to consent to immoral or             indecent acts;

*           it is an offence to solicit or entice such boy or girl to the commission of an immoral or indecent act;

*           it is a defence to the above offences if, at the time of the commission of the offence the boy or girl was a prostitute and the person charged with the offence was under the age of 21 years and it is the first time on which he or she is so charged; or

*           the person was deceived into believing that the boy or girl was over the age of 16 years at the time.

 

11.1.2   A number of inconsistencies exist in section 14 of the Sexual Offences Act, 1957, namely—

(i)         the age of consent to homosexual (19 years) as opposed to heterosexual acts (16 years);

(ii)         the age of consent to heterosexual "intercourse" is 16 years, but the age of consent to an "immoral or indecent act" (whether homosexual or heterosexual) is 19 years.

The Commission pointed out that the relevant section "therefore requires a higher age of consent to an act that may not be as intimate or disturbing as sexual intercourse".

 

11.1.3   In terms of clause 9 of the introduced Bill it is an offence to have sexual intercourse (in the wider sense), or to commit an indecent act, with a consenting child below the age of 16 years.  In cases of penetrative sexual acts with a consenting child only one defence is available, namely, that the accused was deceived into reasonably believing that the child was over the age of 16.  When an "indecent act" is committed with a consenting child (between the ages of 12 and 16 years) the same defence is available, as well as the additional defence that both parties are younger than 16 years of age, and the age difference between them is not more than three years (the three year age difference is provided for as a direct result of the fact that teenagers experiment sexually).

 

            Redrafted Bill

11.1.4   Clause 9 of the Introduced Bill dealt with acts of penetration by a person with children older than 12 years but below 16 years with their consent and indecent acts with children below 16 years with their consent.  IN LINE WITH THE DISTINCTION SUGGESTED BY THE COMMITTEE TO BE DRAWN BETWEEN ACTS OF SEXUAL PENETRATION AND SEXUAL VIOLATION, THE DEPARTMENT HAS DRAFTED—

(i)         clause 14, which criminalises acts of sexual penetration with children under 16 years or older than 12 years (see definition of “child”); and

(ii)         clause 15 of the Bill, which criminalises acts of sexual violation against children in the same age group,

all with their consent.

 

11.1.5   In terms of clause 14 of the redrafted Bill it is an offence for a person (“A”) to commit an act of sexual penetration with a child (“B”), despite the consent of B.  In similar vein, clause 15 of the Bill makes it an offence for a person (“A”) to commit an act of sexual violation with a child (“B”), despite the consent of B.

 

11.1.6   Clause 53, dealing with defences, however, provides in subclause (2)(c) thereof that it is a defence to contend, in both the case of clauses 14 and 15 offences, that the child (“B”) deceived A into believing that he or she was 16 years or older and A reasonably so believed.  However, in respect of a charge contemplated in clause 15 of the Bill (consensual sexual assault) the accused person can allege that there is only an age difference of two years between them which can constitute a defence if the accused person is also below 16 years, allowing for the reality of teenage “sexual experimentation”. 

 

11.1.7   In the case of acts of consensual sexual penetration with children under 16 years or older than 12 years, the National Director of Public Prosecutions must authorise the institution of a prosecution.  In the case of acts of consensual sexual violation against children in the same age group, the relevant Director of Public Prosecutions must authorise the institution of a prosecution (See clauses 14 and 15 of the Bill, respectively).  The National Director of Public Prosecutions must, however, in terms of clause 61(2)(b)(vi) of the Bill issue national directives, setting out the circumstances and manner in which Directors of Public Prosecution should authorise and institute prosecutions contemplated in clause 15(2) with the view to ensuring uniformity. 

 

11.2      Part 2:  Sexual exploitation and sexual grooming of children, engaging in sexual acts in presence of children and exposure or display of or causing exposure or display of genital organs, anus or female breasts (“flashing”) or pornography or sexual acts to children:

 

            Introduced Bill

11.2.1   Clause 11 of the introduced Bill contains the Commission's recommendations regarding the phenomenon of child prostitution.  The relevant recommendations are that—

*           a complete ban be placed on child prostitution and that anyone involved in the sexual exploitation of children should face severe criminal sanction;

*           the child prostitute should be regarded as a victim in need of care and protection and should not be             prosecuted;

*           living off or benefiting from the earnings of child prostitution should be penalised; and

*           sex tourism involving children should be criminalised.

 

            Redrafted Bill

11.2.2   Clause 16 of the redrafted Bill deals with the sexual exploitation of a child and subclause (1) provides that—

a person (“A”) who unlawfully and intentionally engages the services of a child complainant (“B”) (under the age of 18 years), or offers the services of B to a third person (“C”), with or without the consent of B, in order to perform a sexual act with B, for financial or other reward, favour or compensation to B, A (when offering the services of B) or to another person (“D”), among others, by –

(i)            committing a sexual act (that is acts of sexual penetration and sexual violation) with B;

(ii)            inviting, persuading or inducing B to allow C to commit a sexual act with B;

(iii)       participating in, being involved in, promoting, encouraging or facilitating the commission of a sexual act with B by C;

(iv)       making available, offering or engaging C for purposes of the commission of a sexual act with B by D;  or

(v)        detaining B, whether under threat, force, coercion, deception, abuse  of power or authority, for purposes of the commission of a sexual act with B by C or D,

is guilty of the offence of being involved in the sexual exploitation of a child.

 

11.2.3            Subclause (2) provides that a person who intentionally allows or knowingly permits the commission of a sexual act by a third person ("C") with a child complainant ("B")—

(i)            while being a primary care-giver defined in section 1 of the Social Assistance Act, 1992;

(ii)            while being a parent or guardian of B; or

(iii)       who owns, leases, rents, manages or occupies or has control of any movable or immovable property used for purposes of the commission of a sexual act with B by C,

 is guilty of the offence of furthering the sexual exploitation of a child. 

In similar vein, subclause (3) places an obligation on those persons who are aware of a child being sexually exploited to report such knowledge to the South African Police Service.  Failure to do so is an offence.  Subclause (4) provides that any person ("A") who intentionally receives financial or other reward, favour or compensation from the commission of a sexual act with a child complainant ("B") by a third person ("C"), is guilty of the offence of benefiting from the sexual exploitation of a child.  Subclause (5) provides that any person ("A") who intentionally lives wholly or in part on rewards, favours or compensation for the commission of a sexual act with a child complainant ("B") by a third person ("C"), is guilty of an offence of living from the earnings of the sexual exploitation of a child.  Lastly, subclause (6) provides that a person ("A") who makes or organises any travel arrangements for or on behalf of a third person ("C") with the intention of facilitating the commission of any sexual act with a child complainant, irrespective whether the act is committed or not, or prints or publishes any information that is intended to promote or facilitate conduct that would constitute a sexual act with a child ("B"), is guilty of the offence of promoting child sex tours.

 

11.2.4   Certain other practices exist in terms of which sex offenders "groom" a child prior to committing a sexual offence with such child.  The process of "sexual grooming" includes the provision or display of articles used to perform sexual acts with children.  Clause 17 of the redrafted Bill aims to prohibit, among others, the following criminal activities:

(i)         The manufacturing, distribution or activities that are aimed at facilitating the manufacture or distribution of an article that promotes or is intended to be used in the commission of a sexual act with or by a child complainant ("B");

(ii)        supplying or displaying to a child ("B") an article which is intended to be used in the performance of a sexual act with the intention of encouraging or enabling B to perform such sexual act,

(iii)       having met or communicated with a child ("B") by any means from, to or in any part of the world, on at least two earlier occasions, intentionally travels to meet or meets B with the intention of committing a sexual act, during or after the meeting; and

(iv)       arranging or facilitating a meeting or communication with a child ("B") by any means from, to or in any part of the world with the intention that that person ("A") or a third person ("C") will commit a sexual act with B during or after such meeting.

 

            Introduced Bill

11.2.5   The commission of an act of sexual penetration or an indecent act in the presence of a child or mentally impaired person constitutes indecent assault, crimen iniuria or public indecency in terms of the common law.  Clause 8 of the introduced Bill gives effect to the Commission's recommendation that the intentional commission of these acts within the view ("in the presence") of a child below the age of 16 years or a mentally impaired person should be criminalised.  The relevant provision aims to address those instances where sexual acts are committed in the presence of children and mentally impaired persons "with the purpose of grooming that child or mentally impaired person for possible abuse later". 

 

            Redrafted Bill

11.2.6            Clauses 18, 19, 20 and 21 of the redrafted Bill aim to protect children from other more subtle, but equally harmful, forms of exploitation.  Clause 18 of the Bill provides that—

a person (“A”) who unlawfully and intentionally, whether for the sexual gratification of A or a third person (“C”) or not, exposes or displays or causes the exposure or display of a sexual act to a child complainant (“B”), with or without the consent of B, by causing or compelling B to watch A or another person (“D”) engaging in a sexual act, is guilty of the offence of exposing or displaying or causing the exposure or display of a sexual act to a child. 

 

11.2.7   Using similar wording as in clause 18, clauses 19 and 20 provide that a person who unlawfully and intentionally engages in an act of sexual penetration or sexual violation, respectively, in the presence of a child is guilty of an offence.  Clause 21 criminalises the unlawful and intentional exposure or display or causing exposure or display of genital organs, anus or female breasts to a child (“flashing”) and clause 22 criminalises the unlawful and intentional exposure or display or causing exposure or display of pornography to a child.

 

12.            Chapter 4:  Sexual offences against mentally disabled persons:

 

            Introduced Bill

12.1      Section 15 of the Sexual Offences Act, 1957, makes it an offence for any person to commit or attempt to commit, to entice or solicit any sexual act with an idiot or imbecile (provided that the person knew that the other person was an idiot or imbecile).  The introduced Bill aimed to introduce the term "mentally impaired person" which is defined as a person affected by any mental impairment irrespective of its cause, whether temporary or permanent, to the extent that he or she, at the time of the alleged commission of the offence, was—

*           unable to appreciate the nature and reasonably foreseeable consequences of an indecent act or an act which causes penetration;

*           able to appreciate the nature and reasonably foreseeable consequences of such an act but unable to act in accordance with that appreciation;

*           unable to resist the commission of any such act; or

*           unable to communicate his or her unwillingness to participate in any such act.

 

12.2      The aim of clause 7 of the introduced Bill is not only to eliminate the derogatory technical terms "idiot" and "imbecile" but also to increase the "protection of persons who are particularly vulnerable because of mental impairment".  However, it should be recognised that mentally impaired persons have sexual rights.  It should therefore be noted that the definition does not refer to all forms of mental impairment, but only to those that are considered to be severe enough to exclude consent.  Clause 7 also creates a defence to a charge of an indecent act or an act which causes penetration with a person who is mentally impaired.  The defence is based on two elements, namely, that a mentally impaired person who was over 18 years at the time of the relevant act, induced the commission of the act and, secondly, that the accused reasonably believed that the person concerned was not mentally impaired and that the person concerned was above the age of 18 at the time of the act.

 

12.3      Clause 12 of the introduced Bill regulates the prostitution of mentally impaired persons, and is similar in content to clause 11.

 

            Redrafted Bill

12.4      IN LINE WITH THE SUGGESTION OF THE COMMITTEE, THIS IS INTENDED TO BE A CHAPTER CONTAINING SPECIFIC SEXUAL OFFENCES AGAINST MENTALLY DISABLED PERSONS.  It is divided into two parts.  The term “mentally disabled person” is defined in clause 1 as a person affected by any mental disability including, any disorder or disability of the mind, to the extent that he or she, at the time of the alleged commission of the offence in question, was—

(i)         unable to appreciate the nature and reasonably foreseeable consequences of a sexual act;

(ii)         able to appreciate the nature and reasonably foreseeable consequences of such an act but was unable to act in accordance with that appreciation;

(iii)        unable to resist the commission of any such act; or

(iv)        unable to communicate his or her unwillingness to participate in any such act. 

Clauses 23 to 29 of the redrafted Bill are, with the exception of acts of consensual sexual penetration and violation with certain children, a duplication of the provisions of Chapter 3. 

 

Chapter 5:

13.            Services for victims of sexual offences and compulsory HIV testing of sexual offenders:

 

13.1      Chapter 5 is divided into five Parts and deals with two distinct services for victims of sexual offences, the one being the provision of Post Exposure Prophylaxis (PEP) to certain victims of sexual offences and the other being the compulsory HIV testing of sexual offenders.  The provisions contained in this chapter do not flow from the introduced Bill.

 

13.2      Part 1:  Definitions and services for victims of sexual offences:

13.2.1            Clauses 31 and 32 were included in the redrafted Bill as a direct result of the treatment clause originally recommended by the SALRC.  The recommendation entailed the following:

            21.            (1)            Where a person has sustained physical, psychological or other injuries as the result of an alleged sexual offence, such person shall, immediately after the alleged offence, receive the appropriate medical care, treatment and counselling as may be required for such injuries.

(2)            If a person has been exposed to the risk of being infected by a sexually transmissible infection as the result of a sexual offence, such person shall, immediately after the reporting of the alleged offence to the South African Police Services or to a health care facility—

(a)        be advised by a medical practitioner or a qualified health care professional of the possibility of being tested for such infection; and

(b)        have access to all possible means of prevention, treatment and medical care in respect of possible exposure to a sexually transmissible infection.

(3)            The State shall bear the cost of the care, treatment, testing, prevention and counselling as referred to in this section.

 

13.2.2   The clause, as proposed by the SALRC, was omitted from the introduced Bill pending further discussions with the Department of Health.  The "treatment clause" of the SALRC was, during the redrafting process, referred to the Department of Health for comments.  Discussions with the Department of Health were held on a high level.  In principle, agreement was reached that provision should be made only for the provision of PEP to the victim at State expense within 72 hours after the alleged commission of the offence, the 72 hour limit being set to give recognition to the medical fact that the provision of PEP to a victim is only effective when it is administered within 72 hours after a person has been exposed to the HIV.  The Department of Health indicated that it did not have the resources to fund all types of medical treatment as originally recommended.   

 

13.2.3   Clause 31(1)(a) of the redrafted Bill entitles a victim who has been exposed to the risk of being infected by HIV as the result of a sexual offence, to—

(i)         receive PEP for HIV infection at a public health establishment designated by the Minister of Health at State expense;

(ii)         be given free medical advice surrounding the administering of PEP prior to the administering thereof; and

(iii)        be supplied with a list of public health establishments which provide these services.  

 

13.2.4   Clause 31(2) of the redrafted Bill limits this entitlement to a person who reports the alleged offence within 72 hours of its commission and clause 31(3)(a) of the Bill obliges a police official or medical person to whom such an offence is reported to inform the victim of these entitlements. 

13.2.5   Clause 32 of the redrafted Bill requires the Minister of Health to designate public health establishments by notice in the Gazette for the purposes of providing PEP and it requires the Director-General: Justice and Constitutional Development, the National Commissioner of the South African Police Service and the National Commissioner of Correctional Services to ensure that the lists of such designations are made available to the relevant role-players within their Departments.

 

13.3      Part 2:  Compulsory HIV testing of sexual offenders:

 

13.3.1   During 2003 the Department introduced the Compulsory HIV Testing of Alleged Sexual Offenders Bill ("the HIV Testing Bill") in Parliament.  This Bill emanates from an investigation and report of the SALRC, which investigation was instigated at the request of the Committee.  In short, this HIV Testing Bill entitles a victim of a sexual offence who may have been exposed to the body fluids of the alleged sexual offender, to apply to a magistrate for a court order directing that the offender be tested to determine his or her HIV status.  The main purpose hereof is to afford the victim an opportunity of knowing as soon as possible whether he or she might have contracted the HIV.  It is argued that the benefit to such victims of this knowledge is not only immediately practical in that it enables them to make life decisions and choices for themselves and people around them but it is also beneficial to their psychological state to have even a limited degree of certainty regarding their exposure to a life-threatening disease. 

 

13.3.2   THE PORTFOLIO COMMITTEE DEBATED THE HIV TESTING BILL AND REQUESTED THE DEPARTMENT TO CARRY OUT SOME FURTHER RESEARCH ON A FEW ASPECTS AND TO REVERT TO IT.  THE DEPARTMENT WAS ALSO REQUESTED TO EXPLORE THE POSSIBILITY OF INCORPORATING THE HIV TESTING BILL INTO THE CRIMINAL LAW (SEXUAL OFFENCES AND RELATED MATTERS) AMENDMENT BILL. THE LATTER BILL HAD NOT BEEN INTRODUCED INTO PARLIAMENT WHEN THE HIV TESTING BILL WAS DISCUSSED.  PARTS OF THIS CHAPTER UNDER DISCUSSION ALSO GIVE EFFECT TO THIS REQUEST.

 

13.3.3   Clause 30 of the redrafted Bill contains a number of self-explanatory definitions, most of which have been taken from the HIV Testing Bill.

 

13.4      Part 2:  an application by the victim to a magistrate for an order that the alleged offender be             tested for HIV

 

Clauses 33 and 34 of the redrafted Bill are taken largely verbatim from clauses 3 and 4 of the HIV Testing Bill.  

 

13.4.1   Clause 33 of the redrafted Bill envisages a simple prescribed application procedure before a magistrate in chambers for an order that the alleged offender be tested for HIV and that the test results be made available to the victim and to the alleged offender.  The application can be brought by the victim or an "interested person", the latter being defined in clause 30 as—

"any person who has a material interest in the well-being of a victim, including a spouse, same sex or hetero-sexual permanent life partner, family member, care giver,  counsellor, medical practitioner, health service provider, social worker or teacher of such victim.". 

 

The application must, among others, set out the grounds on which it is alleged that a sexual offence was committed against the victim and must also state that less than 60 days have lapsed from the date of the commission of the offence.  This 60 day limit has been introduced on medical evidence that it takes approximately 60 days before a person who has been exposed to the HIV will show, on the strength of tests done on himself or herself, whether he or she has been infected with the HIV or not (the so-called "Window Period").  After the expiry of this 60 day period, the justification for infringing on the alleged offender's constitutional rights, among others, to bodily and psychological integrity by being subjected to HIV testing with limited opportunity to oppose the same, is reduced since it is argued that the victim can have herself or himself tested for HIV infection, the results of which will be more certain.

 

13.4.2   Clause 34 of the redrafted Bill deals with the consideration of the above application by a magistrate in chambers.  It requires the magistrate to consider the application as soon as possible and allows the magistrate to call for such additional evidence as he or she deems fit, including oral evidence or evidence by affidavit.  Whereas the original HIV Testing Bill completely prohibited the presence of the alleged offender at such proceedings and did not envisage any evidence on his or her behalf, the redrafted Bill (clause 34(2)) allows the magistrate to "consider evidence by or on behalf of the alleged offender if, to do so, will not give rise to any substantial delay".  This subclause, however, empowers the magistrate to allow the evidence of the alleged offender in the absence of the victim if he or she is of the opinion that it is in the best interests of the victim to do so.  This deviation from the original Bill is motivated on the strength of the submission of the Commission on Gender Equality which was heard by the Committee during the public hearings in respect of the HIV Testing Bill (the relevant portions of this submission are included in the footnote hereunder.[4])   Clause 34 also requires a magistrate to issue an order for testing if he or she is satisfied that there is prima facie evidence that a sexual offence was committed by the alleged offender against the victim, that the victim may have been exposed to the body fluids of the alleged offender and that no more than 60 days have lapsed since the commission of the offence. 

 

13.5      Part 3:  An application for compulsory HIV testing of an alleged offender by a police official:

 

13.5.1   There was no such provision in the original HIV Testing Bill.  Motivation for the inclusion of such a provision is, among others, rooted in the fact that the Criminal Law Amendment Act, 105 of 1997, provides for the imposition of a minimum sentence in those cases where an HIV positive person is convicted of rape.  This provision will place an investigative tool in the hands of the police to enable them to place a case before the prosecuting authority that has been comprehensively investigated.  The ambit of the chapter is not limited to the investigation of sexual offences and may also be applied by the police where the HIV status of the offender may be relevant for the investigation or prosecution of any other offence.  Clause 35 of the redrafted Bill consequently envisages a similar application procedure as in clause 33, by a police official.  Although this clause is based on clause 33, some of its features have also been taken from section 43 of the Criminal Procedure Act, 1977, which sets out the manner in which a prosecutor or police official can obtain a warrant of arrest in respect of an accused person from a magistrate or judge. 

 

13.5.2   In short, clause 35 allows a police official to apply to a magistrate in chambers for an order that an alleged offender be tested for HIV.  The magistrate hearing the application must order that the alleged offender be tested for HIV if he or she is satisfied, on the strength of information taken on oath or by way of solemn declaration, that an offence was committed against the victim, and that HIV testing would appear to be necessary for purposes of investigating or prosecuting the offence.  The results of the tests in this case are only made available to the investigating officer and alleged offender.  (Clause 33(1)(a)(ii), dealing with an application by the victim, takes cognisance of the possibility of the police, during their investigation, already having had the offender tested and having obtained the test results which can then be made available to the victim.).

 

13.6      Part 4:  Execution of Court orders:

 

13.6.1            Clauses 36 and 37 of the redrafted Bill (Part 4 of the Chapter under discussion) deal with the execution of court orders for compulsory HIV testing and the issuing of warrants of arrest, as well as the results of HIV tests.  Clause 36 is modelled largely on clause 5 of the HIV Testing Bill. 

 

13.6.2   Clause 36 of the redrafted Bill provides that an order for HIV testing must be executed within 60 days of the commission of the alleged offence, failing which the order lapses.  (This period is linked to the 60 day window period mentioned above).  It also empowers a magistrate to issue a warrant of arrest in respect of an offender who is likely to avoid compliance with the order. This clause is self-explanatory and requires no further elaboration.

 

13.6.3   Clause 37 of the redrafted Bill deals with the use of HIV test results and differs from the original HIV Testing Bill.  While clause 7 of the HIV Testing Bill provided that HIV test results are not admissible as evidence in criminal or civil proceedings, clause 37 sets out the circumstances in which the HIV test results can be used, namely –

(i)         to inform a victim or interested person whether the alleged offender is infected with HIV with the view to making informed personal decisions or using them in any ensuing civil proceedings as a result of the sexual offence in question;  or

(ii)         to enable an investigating officer to gather information with the view to using the results as evidence in ensuing criminal proceedings.

THE COMMITTEE WAS OF THE VIEW THAT THE TEST RESULTS SHOULD NOT ONLY BE CONFINED TO USE BY THE VICTIM FOR PURPOSES OF PERSONAL DECISIONS BUT SHOULD ALSO BE  USED IN THE CASE OF ENSUING CRIMINAL AND CIVIL PROCEEDINGS.  THE COMMITTEE, HOWEVER, STRESSED THE IMPORTANCE OF ENSURING THAT THE ISSUE OF CONFIDENTIALITY IS ADDRESSED ADEQUATELY ELSEWHERE IN THE BILL (NAMELY, CLAUSE 40).

 

13.7      Part 5:  Miscellaneous matters:

 

13.7.1            Clauses 38, 39 and 40 of the redrafted Bill deal with confidentiality issues.  Clause 38 requires the National Commissioner of the South African Police Service to cause all applications made and orders granted for HIV testing in terms of this Chapter to be recorded and kept in the manner determined by regulation.  It envisages that access to this information will be prescribed by regulations.  Clause 39 prohibits the communication of the outcome of an application for a testing order, except to the victim or an interested person, the alleged offender, the investigating officer and the persons required to execute the order and clause 40(1) prohibits the communication of the test results, except to the victim or interested person, the alleged offender and investigating officer.  Clause 40(2) has been inserted to strengthen the confidentiality provisions and gives the court the power to make any order it deems appropriate in order to ensure confidentiality, including the manner in which such HIV test results are to be kept confidential and the manner in which the court record is to be dealt with.  The origin of these provisions can be traced back to clauses 8 and 10 of the HIV Testing Bill, respectively.

 

13.7.2   Clause 41 deals with offences and penalties and provides that any person who, with malicious intent, lays a criminal charge or makes an application with the intention of ascertaining the HIV status of an alleged sexual offender, is guilty of an offence.  It also criminalises the intentional disclosure of the HIV test results in contravention of clause 41, and makes it an offence for an offender to avoid compliance with the court order that he or she be tested for HIV.  Clause 42 empowers the Minister for Justice and Constitutional Development to make regulations giving effect to this Chapter.  Similar provisions can be found in clauses 11 and 12 of the HIV Testing Bill.  

 

14.            Chapter 6:  National Register for Sex Offenders

Chapter 6 of the Bill deals with the National Register for Sex Offenders ("the Register"), which was inserted pursuant to the deliberations of the Committee on this aspect.

 

14.1      Clause 43 of the redrafted Bill is intended to prohibit the employment of persons who have been convicted of sexual offences against children and who intend to work with children in any manner.  For instance, clause 43(1) prohibits any person who has been convicted of a sexual offence against a child, whether before or after the commencement of this Chapter and whether committed in or outside the Republic, and whose particulars have been included in the Register, from working with children in any circumstances whatsoever.  Clause 43(2) prohibits any employer who provides services to or for children from employing a person with a conviction for a sexual offence against a child and whose particulars have been included in the Register and clause 43(3) requires any person whatsoever who seeks such employment to disclose such conviction, irrespective of whether his or her particulars have been included in the Register or not.  Failure to comply with this clause is criminalised.  (Clause 43(4)).  Clause 43(5) provides that any contract of employment in respect of a person who fails to disclose a conviction of a sexual offence against a child may be terminated upon discovery of such conviction or at any time when such person’s employer becomes aware of such conviction, irrespective of whether such person has committed any sexual offence during his or her period of employment or not.

 

14.2      Clause 44 of the redrafted Bill provides for the establishment of the Register and provides that it will be established and maintained by the cabinet member responsible for the administration of justice.  This cabinet member must designate a fit and proper person to carry out this function, to be known as the Registrar of the National Register for Sex Offenders.

 

14.3      Clause 45 sets out the objects of the Register, namely –

(i)         to have a record of all persons who are convicted of a sexual offence against a child, whether they are committed before or after the commencement of this Chapter and whether they are committed in or outside the Republic;  and

(ii)         to use that information solely for purposes of providing persons (employers) who intend to employ persons who will work with children or provide services for children, with a certificate on whether any particular potential employee mentioned in the application by the employer has a conviction for a sexual offence against a child and whose particulars are included in the Register.

 

14.4      Clause 46 sets out what information must be included in the Register, namely, the—

(i)         names and surnames of sexual offenders;

(ii)         their last known physical and postal addresses;

(iii)        their identification numbers;

(iv)            passport and driver’s licence particulars;

(v)         sexual offence in respect of which they have been convicted, their sentences; and

(vi)        their dates and places of conviction and any other particulars as may be prescribed by regulation.

 

14.5      Clause 47(1) sets out the persons whose particulars must be included in the Register, namely—

(a)        a person who, after the commencement of this Chapter, has been convicted of a sexual offence against a child;

(b)        a person who is alleged to have committed a sexual offence against a child in respect of whom a court, whether before or after the commencement of this legislation, has made a finding and given a direction in terms of section 77(6) or 78(6) of the Criminal Procedure Act, 1997 (dealing with mental capacity to understand criminal proceedings and criminal responsibility, respectively);

(c)        a person who, at the commencement of this legislation, is serving a sentence of imprisonment as the result of a conviction for a sexual offence against a child; 

(d)        a person who, at the commencement of this legislation, has a previous conviction for a sexual offence against a child;  and

(e)        any person who, in any court in any foreign jurisdiction –

(i)         has been convicted of any offence equivalent to the commission of a sexual offence against a child;  or

(ii)         has been dealt with in a manner equivalent to that contemplated in paragraph (b),

whether it was committed before or after the commencement of this Chapter. 

 

14.6      Clause 47(2) and (3) sets out a court's responsibilities when it has sentenced a person for a conviction of a sexual offence against a child regarding the inclusion of the offender's particulars in the Register or when the court has given a direction in terms of section 77(6) or 78(6) of the Criminal Procedure Act, 1977.  Clause 47(4) and (5) sets out how the Commissioner of Correctional Services and the National Commissioner of the South African Police Service must ensure that the particulars of persons who are serving prison sentences or who have previous convictions for sexual offences against children must be forwarded to the Registrar.  In similar vein, clause 47(6) regulates how the Director-General:  Health must ensure that the particulars of persons who are subject to a direction in terms of section 77(6) or 78(6) of the Criminal Procedure Act, 1977, at the commencement of this legislation, are forwarded to the Registrar.  Clause 47(7) places an obligation on all persons whose particulars have been forwarded to the Registrar, to ensure that the Registrar is kept informed of any change of address and it criminalises the intentional failure to do so.   

 

14.7      Clause 48 of the redrafted Bill deals with the removal of a person's particulars from the Register. A person who—

(a)        receives a prison sentence of longer than eighteen months or who has more than one conviction for a sexual offence against a child may not have his or her particulars removed from the Register;

(b)        has been convicted of a sexual offence against a child and is sentenced to imprisonment for a period between six months and eighteen months may only have his or her particulars removed from the Register after a period of ten years has lapsed since he or she has been released from prison;

(c)        has been convicted of a sexual offence against a child and is sentenced to imprisonment for a period up to six months may only have his or her particulars removed from the Register after a period of seven years has lapsed since he or she has been released from prison; and

(d)        receives any other form of punishment may have his or her particulars removed from the Register after a period of five years has lapsed since his or her particulars were included in the Register.

A person who qualifies to have his or her particulars removed from the Register must apply to the Registrar to have those particulars removed.

 

14.8      Clause 49 of the redrafted Bill sets out the categories of persons who are entitled to apply for a certificate from the Registrar, stating whether or not the particulars of a person mentioned in the application are  recorded in the Register, before –

(a)            employing any person who is to work with children;  or

(b)        applying for a position to work with children. 

The certificate will be prescribed by regulation.

 

14.9      Clause 50 deals with the confidentiality and disclosure of information contained in or obtained from the Register, prohibiting the unnecessary disclosure thereof.  Failure to comply with this prohibition is criminalised.

 

14.10    Clause 51 empowers the Minister to make certain regulations relating thereto, for instance, the manner and format in which the Register is to be established and maintained, the manner in which persons may apply to the Registrar for a certificate stating whether a particular person's name is included in the Register, the period within which a certificate must be provided to any applicant, access to the Register and the safe-keeping and disposal of records.  Clause 54 contains a number of self-explanatory definitions which are required for purposes of this Chapter.

 

14.11.1 It should be mentioned that the Children's Bill, which was approved by Parliament at the end of 2005, also has provisions creating a register, the aim of which is to protect children.  Part A of that Register aims to regulate the creation of a record, among others, to reflect information regarding the abuse or deliberate neglect of children, the use of information concerned to protect children from further abuse and information sharing between certain role players.  Part B of the Register is intended to establish a record of persons who are unsuitable to work with children.

 

            Registers:  There are a number of important similarities between Chapter 6 of the redrafted Bill [the             establishment of a National Register for Sex Offenders (“Offender Register”)] and Chapter 7 of the Children’s Bill             dealing with a National Child Protection Register (“Protection Register”).  These may be summarised as follows:

            (i)            Purpose: 

                        Offender Register - provide potential employers with information to determine whether persons who                  intend working with children have been convicted of sexual offences against children,

                        Protection Register - use of information to protect children in general against abuse from unsuitable             persons;

            (ii)            Consequences: 

                        Offender Register - a convicted person, whose particulars have been included in the Register, may not                        work with children in any manner that places him/her in a position of authority, supervision or care of             children and must disclose the fact that he/she was convicted of a sexual offence against a child when                 applying to work with children.  Potential employers may not employ or make use of the services of                     persons whose names appear in the Register,

                        Protection Register - a person whose name appears in Part B of the Register may not work with children                         in any manner that places him/her in a position of authority, supervision or care of children.  Affected                        persons may also not become foster parents, kinship care-givers or adoptive parents of children;                                and

            (iii)            Disclosure:  

                        Offender Register - a person who has been convicted of a sexual offence against a child must disclose                        such conviction when applying for employment that will place him or her in a position of authority or                    care of children,

                        Protection Register - a person whose name has been entered in Part B of the Register must disclose the                   fact to his or her potential employer if that person intends “working with children”.

 

            A number of differences exist between the two sets of provisions, namely—

            (i)            Establishment:  

                        Offender Register - established and maintained by the Justice Minister who must designate a fit and                         proper person as Registrar of the Register,

                        Protection Register - the Director-General:  Social Development must keep and maintain the Register;

            (ii)            Affected persons: 

                        Offender Register - persons who, before or after commencement of the Act, have been convicted of                      sexual offences against children, 

                        Protection Register - inclusion of a person’s particulars is dependent on a finding of unsuitability to work                 with children which may be made by a children’s court, any other court in any criminal or civil proceedings                   or any disciplinary forum in proceedings concerning a person’s conduct in relation to a child.  However, a                      criminal court must find a person unsuitable to work with children if that person is convicted of murder,                         attempted murder, rape, sexual abuse or assault with the intent to do grievous bodily harm with regard to                     a child;

            (iii)            Notification:  

                        Offender Register - the Registrar or clerk of the court, Commissioners of SAPS and Correctional Services                        and the Director-General:  Health must forward the particulars of relevant persons to the Registrar,

                        Protection Register - Registrar of the relevant court, the relevant administrative forum or person who                  brought an application for a finding that a person is unsuitable to work with children must notify the                                   Director-            General:  Social Development of any finding of unsuitability and of any appeal or review lodged                 by an affected person;

            (iv)            Removal of particulars: 

                        Offender Register - an affected person’s name may be removed from the Register after a certain period                 has lapsed, but the particulars of a person who has—

                        *            been sentenced for a conviction of a sexual offence against a child to a term of imprisonment                             without the option of a fine for a period exceeding 18 months; or

                        *            more than one conviction of a sexual offence against a child,

                        may not be removed from the Register,

                        Protection Register - an application on the ground that the affected person has been rehabilitated, may                  only be             made after at least five years have lapsed since the relevant particulars have been included in                         the Register.  The particulars of a person with more than one conviction may not be removed from the                        Register.

 

15.        Chapter 7:  General Provisions:

This Chapter contains five Parts.

 

15.1      Part 1:  Defences, evidentiary matters and extra-territorial jurisdiction:

 

15.1.1   Clause 53 contains defences to some of the offences created in the Bill.    Clause 53(1) provides that it is not a valid defence for an accused person to contend that a marital or other relationship existed between him or her and the complainant in respect of offences of—

(a)        rape (clause 3);

(b)            compelled rape (clause 4);

(c)        sexual assault (clause 5);

(d)            compelled sexual assault (clause 6); and

(e)            compelled self-sexual assault (clause 7),

created in the Bill. 

 

15.1.2   Clause 53(2) sets out a number of valid defences in respect of some offences created in the Bill, for instance –

(i)         in the case of a mentally disabled complainant, where the accused person reasonably believed that the complainant was not mentally disabled and was over 18 years;

(ii)         in the case of a child complainant, that the child deceived the accused person into believing that he or she was 16 years or older and the accused person reasonably so believed;  and

(iii)        in the case of a charge involving the sexual violation of a child, that both persons involved in the commission of the offence were below 16 years and the age difference between the two of them was less than two years.

 

15.1.3   Clause 53(4) provides that a person may not be convicted of an offence contemplated in section 16(3), (4) or (5) or section 23(3), (4) or (5) if the accused person is a child.  These provisions deal with the sexual exploitation of children and mentally disabled persons, respectively.  Clauses 16(3) and 23(3) criminalise the intentional failure of a person to report their "knowledge" of the sexual exploitation of a child or mentally disabled person.  Clauses 16(4) and 23(4) provide that any person who intentionally receives financial or other reward, favour or compensation from the commission of a sexual act with a child or mentally disabled person by another person is guilty of an offence.  Clauses 16(5) and 23(5) criminalise living from the earnings of the sexual exploitation of a child or mentally disabled person.  

 

            Introduced Bill

15.1.4            Statements that were made by witnesses prior to testifying in criminal proceedings are prohibited in terms of the common law rule against "self-corroboration".  One of the exceptions to this rule includes the admission of evidence that the complainant in a sexual case made a complaint soon after the alleged offence, the so-called "first report".  The SALRC pointed out that where the complainant did not make a statement at "the first reasonable opportunity, the defence usually advances the argument that a negative inference should be drawn about the credibility of the complainant".  Clause 17 of the introduced Bill clearly states that a negative inference may not be drawn only from the absence of a previous consistent statement relating to the offence, or from a delay in reporting the alleged offence.

 

            Redrafted Bill

15.1.5            Clauses 54 and 55 of the redrafted Bill deal with “evidence of previous consistent statements” and “evidence of delay in reporting”, respectively.  Statements that were made by witnesses prior to testifying in criminal proceedings are prohibited in terms of the common law rule against "self-corroboration".  One of the exceptions to this rule includes the admission of evidence that the complainant in a sexual case made a complaint soon after the alleged offence, the so-called "first report".  It should be pointed out that where the complainant did not make a statement at "the first reasonable opportunity, the defence usually advances the argument that a negative inference should be drawn about the credibility of the complainant".  Clauses 54 and 55 therefore clearly state that a negative inference may not be drawn on account of the absence of a previous consistent statement relating to the offence, or from a delay in reporting the alleged offence.

 

            Introduced Bill

15.1.6   Clause 22 of the introduced Bill deals with extra-territorial jurisdiction.  Currently the jurisdiction of our courts is limited to the South African territory and does not extend to offences committed by South Africans in other jurisdictions.  The SALRC pointed out that children and adults are in need of increased protection on a local as well as on an international level as far as sexual offences are concerned.  Customary international law permits every state to apply its jurisdiction against its own citizens even when they are situated outside its boundaries.  However, as there is a presumption against the extra-territorial operation of criminal laws, clause 22 contains a provision expressly conferring jurisdiction on the South African courts in these circumstances.

 

            Redrafted Bill

15.1.7   Clause 56 of the redrafted Bill aims to clarify the jurisdiction of a court of the Republic in respect of the alleged perpetrator and victim as well as the place where the crime was committed.  This provision is similar to section 35 of the Prevention and Combating of Corrupt Activities Act, 2004 (Act 12 of 2004), and section 4 of the Implementation of the Rome Statute of the International Criminal Court Act, 2002 (Act 27 of 2002).

 

15.2      Part 2:  National Policy Framework:

 

            Introduced Bill

15.2.1   The SALRC recommended the inclusion of special provisions regarding the implementation of the legislation to deal with the creation and maintenance of a national policy framework to guide the implementation, enforcement and administration of the Bill.  It was felt that too elaborate provisions in this regard could give rise to delays and difficulties in implementing the legislation.  The provisions of the SALRC draft Bill, dealing with the establishment and maintaining of a national policy framework were reduced and simplified substantially in the Introduced Bill.  A simple provision giving the Justice Minister the responsibility for the implementation of the legislation, including a policy framework, was therefore inserted in the Introduced Bill in the form of clause 24.

 

            Redrafted Bill

15.2.2            Clauses 57 to 60 of the redrafted Bill purport to regulate the National Policy Framework.  The provisions of the Introduced Bill were therefore redrafted at the request of the Portfolio Committee to give effect to the following:

(i)         the adoption of a national policy framework to ensure a uniform and co-ordinated approach by all Government departments in dealing with sexual offences matters and to guide the implementation, enforcement and administration of the Act (clause 57 of the redrafted Bill); and

(ii)         the establishment of an Intersectoral Committee that will be responsible for developing and compiling a draft national policy framework (to be submitted to the Minister for adoption) that will, among others, facilitate the implementation of the Act and the monitoring of the implementation of the Act (clauses 58 to 60 of the redrafted Bill).

 

15.3      Part 3:  National instructions and directives, regulations and repeal and amendment of laws:

 

            Introduced Bill

15.3.1   Clause 15 deals with vulnerable witnesses, and is aimed at improving the quality of the evidence given by witnesses, improving witnesses' experience of testifying in court and encouraging witnesses to come forward.  The SALRC pointed out that children and victims of sexual offences are potentially more vulnerable than other witnesses, due to the nature of the offence.  In terms of this clause any complainant or child witness will automatically be declared vulnerable.  Other witnesses may be declared vulnerable by the court on account of age, intellectual impairment, trauma, cultural differences or the possibility of intimidation.  The court may determine that protective measures should be applied in respect of a vulnerable witness, that may include¾

*           giving of evidence by way of closed circuit television as provided for in section 158 of the Criminal             Procedure Act, 1977;

*           giving of evidence through an intermediary as provided for in section 170A of the Criminal Procedure             Act, 1977;

*            proceedings taking place in camera as provided for in section 153 of the Criminal Procedure Act, 1977;    and

*            prohibiting the publication of any information as provided for in section 154 of the Criminal Procedure             Act, 1977.

 

            Redrafted Bill

15.3.2   Part 3 of Chapter 7 of the redrafted Bill is intended to replace the provisions recommended by the SALRC, dealing with protective measures for witnesses and vulnerable witnesses. 

 

15.3.3   THE COMMITTEE WAS OF THE OPINION THAT THE AIM OF THESE ORIGINAL PROVISIONS COULD BE ACHIEVED BY MEANS OF NATIONAL INSTRUCTIONS OF THE NATIONAL COMMISSIONER OF THE SOUTH AFRICAN POLICE SERVICE AND DIRECTIVES OF THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS SINCE THE PROSECUTING AUTHORITY AND THE POLICE ARE TRADITIONALLY RESPONSIBLE AND BETTER PLACED TO LOOK AFTER THE INTERESTS OF WITNESSES.  Such an approach will also ensure that witnesses are treated the same, in terms of centralised (national) prescripts and will not be dependent on the possible varying decisions of the different courts.  These national prescripts will also take into account cost implications and feasibility considerations.

 

15.3.4   Clause 61(1) of the redrafted Bill deals with National Instructions required to be issued by the National Commissioner of the South African Police Service and envisages National Instructions, for instance, on the manner in which the reporting of an alleged sexual offence is to be dealt with by police officials and the manner in which sexual offences cases are to be investigated by police officials, including the circumstances in which an investigation in respect of a sexual offence may be discontinued. 

 

15.3.5   Clause 61(2), in similar vein, deals with Directives required to be issued by the National Director of Public Prosecutions, namely—

(i)         The manner in which sexual offence cases should be dealt with in general, including the circumstances in which a charge may be withdrawn or a prosecution stopped;

(ii)         the circumstances in which the prosecution must apply to court for an order that a witness give evidence by means of closed circuit television as provided for in section 158 of the Criminal Procedure Act, 1977;

(iii)        the circumstances in which the prosecution must request the court to consider appointing a competent person as an intermediary as provided for in section 170A of the Criminal Procedure Act, 1977;

(iv)        the circumstances in which the prosecution must request the court to consider directing that the proceedings may not take place in open court as provided for in section 153 of the Criminal Procedure Act, 1977;

(v)         the circumstances in which the prosecution must request the court to consider prohibiting the publication of the identity of the complainant in the case as provided for in section 154 of the Criminal Procedure Act, 1977, or of the complainant's family, including the publication of information that may lead to the identification of the complainant or the complainant's family; 

(vi)        the circumstances and manner in which Directors of Public Prosecution should authorise and institute a prosecution contemplated in clause 15(2), dealing with consensual sexual assault with the view to ensuring uniformity;

(vii)       the information to be placed before a court during sentencing, including pre-sentence reports and information on the impact of the sexual offence on the complainant; and 

(viii)       the manner in which prosecutors must ensure that an order contemplated in clause 47(2)(a) (dealing with an order of a court to include the accused's name in the Register) is forwarded to and received by the Registrar of the National Register for Sex Offenders.

 

15.3.6   Both the National Commissioner and National Director are required, in terms of this clause, to develop relevant training courses with a view to building a dedicated and experienced pool of trained and specialised functionaries who are able to deal with sexual offences cases in an efficient and sensitive manner.  Similar provisions have been included in respect of health officials (See clause 61(3)).   Lastly, provision has been made in this clause for these prescripts to be submitted to Parliament.

 

15.3.7   Clause 62 empowers the Minister to make regulations which give effect to the Bill and clause 63 deals with the repeal and amendment of laws.

 

15.3.8   Clause 63(1) aims to repeal the—

(a)            irrebutable presumption that a female person under 12 years is incapable of consenting to sexual             intercourse; and

(b)            common law crimes of rape, indecent assault, incest, bestiality and violation of a corpse (insofar as it relates to the commission of a sexual act with a corpse). 

 

15.3.9   Clause 63(2) refers to the Schedule to the Bill which deals primarily with consequential amendments to certain Acts as a result of the provisions of the Bill, for example, the—

(i)         repeal of certain statutory offences contained in the Sexual Offences Act, 1957 (Act 23 of 1957);

(ii)            amendment of certain provisions of the Criminal Procedure Act, 1977 (Act 51 of 1977), in order to ensure compliance with the provisions of the Bill where necessary; and

(iii)            amendment of the Criminal Law Amendment Act, 1997 (Act 105 of 1997), by ensuring that certain offences are subject to the imposition of minimum sentences.

 

15.4      Part 4:  Transitional provisions:

 

Clause 64, containing transitional provisions, aims to clarify the position that all criminal proceedings relating to common law offences (to be repealed by the Act) which are instituted prior to the commencement of the Act and which are not concluded before the commencement of the Act, must be continued and concluded as if the Bill had not been passed.  The clause provides that —

(i)         All criminal proceedings relating to the common law crimes referred to in clause 63(1) which were instituted prior to the commencement of this Act and which are not concluded before the commencement of this Act must be      continued and concluded in all respects as if this Act had not been passed;

(ii)        an investigation or prosecution or other legal proceedings in respect of conduct which would have constituted one of the common law crimes referred to in clause 63(1) which was initiated before the commencement of this Act may be concluded, instituted and continued as if this Act had not been passed; and

(iii)       despite the repeal or amendment of any provision of any law by this Act, such provision, for purposes of the disposal of any investigation, prosecution or any criminal or legal proceedings contemplated in subclause (1) or (2), remains in force as if such provision had not been repealed or amended.

 

15.5      Part 5:  Transitional provisions relating to trafficking in persons for sexual purposes:

 

            Introduced Bill

15.5.1   IT WAS AGREED IN THE COMMITTEE THAT THE DEPARTMENT SHOULD INSERT A NEW PROVISION IN THE BILL DEALING WITH THE TRAFFICKING OF PERSONS.  This emanated from clause 11 of the Introduced Bill which aimed to criminalise the activities of the various role-players involved in “Child Prostitution”.  Subclause (1)(d) provided that a person is guilty of an offence if he or she, in relation to a child, for financial or other reward, favour or compensation to such child or to any other person, intentionally—

(d)        supplies, recruits, transports, transfers, harbours or receives such child, within or across the borders of the Republic, for purposes of the commission of indecent acts or acts which cause penetration with such child by any person;

 

            Redrafted Bill

15.5.2   SINCE THIS PARAGRAPH RELATED TO TRAFFICKING, BUT WAS LIMITED TO THE TRAFFICKING OF CHILDREN, THE COMMITTEE AGREED THAT THE DEPARTMENT SHOULD REDRAFT THE PARAGRAPH AS A NEW SEPARATE PROVISION DEALING WITH TRAFFICKING OF PERSONS.  The aim of this clause, in contrast to clause 11(1)(d) of the introduced Bill, is to¾

*           elevate “Trafficking” to a separate and substantive offence;

*            recognise that persons generally, but especially women and children, fall victim to “Trafficking”; and

*           bring South Africa partially within the purview of the provisions of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children.

 

15.5.3   THE COMMITTEE RECOGNISED THAT THE AMBIT OF THE CLAUSE WOULD BE LIMITED TO SEXUAL OFFENCES, BUT HIGHLIGHTED THAT AN APPARENT PRESSING NEED EXISTS TO AFFORD PROTECTION TO VICTIMS IN THIS REGARD.  THE PROVISION IS THERFORE REGARDED AS AN INTERIM MEASURE, PENDING THE FINAL OUTCOME OF THE INVESTIGATION BY THE SALRC INTO THE TRAFFICKING IN PERSONS. 

 

15.5.4            Because of the interim nature of these provisions, the two clauses dealing with trafficking have been placed at the end of the Bill under the heading of transitional provisions.  The following is highlighted regarding these two clauses:

(i)         Clause 65 deals with the application and interpretation of this Part.  Clause 65(1) provides that pending "the adoption of legislation in compliance with the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime and the repeal of this Part, the transitional provisions in this Part relating to the trafficking in persons for sexual purposes are provisionally provided for in partial compliance of our international obligations and to deal with this rapidly growing phenomena globally.".

 

(ii)            "Trafficking" has been defined as follows in clause 65:

"'trafficking' includes the supply, recruitment, procurement, capture, removal, transportation, transfer, harbouring, sale, disposal or receiving of a person, within or across the borders of the Republic, by means of—

                        (a)            a threat of harm;

                        (b)            the threat or use of force, intimidation or other forms of coercion;

                        (c)            abduction;

                        (d)            fraud;

                        (e)            deception or false pretences;

(f) the abuse of power or of a position of vulnerability, to the extent that the complainant is inhibited from indicating his or her unwillingness or resistance to being trafficked, or unwillingness to participate in such an act;  or

(g) the giving or receiving of payments or benefits,

for the purpose of any form or manner of sexual exploitation, grooming or abuse of such person, whether committed in or outside the borders of the Republic, including for the purpose of the commission of a sexual offence or sexual act, or sexual exploitation or sexual grooming as contemplated in this Act, or exploitation for purposes of pornography or prostitution, with, against or of such person, and 'trafficks' and 'trafficked' have a corresponding meaning.".

 

(iii)        Clause 66(1) provides that a person ("A") who trafficks any person ("B"), without the consent of B, is guilty of the offence of trafficking in persons for sexual purposes.   Clause 66(2) and (3) deal with the issue of consent in similar vein to the manner consent is dealt with in clause 1 of the Bill, with a few adaptations where required.

 

(iv)        Clause 66(4) provides that a person who –

                        (a)            orders, commands, organises, supervises, controls or directs trafficking;

(b) performs any act which is aimed at committing, causing, bringing about, encouraging, promoting, contributing towards or participating in trafficking; or

(c) incites, instigates, commands, aids, advises, recruits, encourages or procures any other person to commit, cause, bring about, promote, perform, contribute towards or participate in trafficking,

is guilty of an offence.

 

(v)         Clause 66(5) is intended to protect a person who has been trafficked from being prosecuted for certain criminal offences, for instance any migration-related offence or prostitution.

 

(vi)        Clause 66(6) provides that a commercial carrier (which is defined in clause 65) commits an offence if the carrier brings a person into or removes a person from the Republic if the person does not have the travel documents required for lawful entry into or departure from the Republic.  It, however, spells out certain circumstances in which the carrier will not be so guilty, for instance if the carrier had reasonable grounds to believe that the travel documents of a person were in order.  This subclause also makes the carrier liable to pay the costs of the trafficked person's care and safekeeping and return from the Republic, in addition to being convicted of the offence.

 

15.5.5   It should be noted that the Children’s Bill also contains provisions dealing with trafficking:  In comparing the two sets of trafficking provisions it becomes apparent that clauses 281 to 291 of the Children’s Bill aim to criminalise the trafficking in children for purposes of exploitation (i.e all forms of slavery, sexual exploitation, servitude, forced labour or services, child labour and the removal of body parts).  The ambit of the provisions contained in the Children’s Bill is wider than that of the provisions in the redrafted Bill.  The relevant provisions of the Children’s Bill aim to deal, among others, with assistance to children who are victims of trafficking, reporting of child victims of trafficking, child victims of trafficking found in the Republic and the repatriation of child victims of trafficking.  However, the relevant provisions only deal with the trafficking of children (i.e persons under the age of 18 years), whereas the trafficking provisions in the redrafted Bill aim to criminalise the trafficking of any person (i.e children and adults) for the purpose of any form or manner of sexual exploitation.  

 

15.6      Clause 67 is the short title and commencement clause.

 

PART III

SCHEDULE TO THE REDRAFTED BILL (LAWS AMENDED OR REPEALED)

 

16.            Schedule to the Bill

It should be noted that there are no material differences between the Bill as proposed by the SALRC and the Introduced Bill.  What follows is an indication of differences between the Introduced Bill and the Redrafted Bill.

 

16.1            Proposed amendments of the Sexual Offences Act 23 of 1957:

           

            Introduced Bill

Proposed repeal of sections –

*           9 (Parent or guardian procuring defilement of child or ward);

*           11 (Conspiracy to defile);

*           13 (Abduction);

*           14 (Sexual offences with youths);

*           15 (Sexual offences with idiots or imbeciles);

*           18 (Use of drugs, etc, for purposes of defilement of females);

*           18A (Manufacture, sale or supply of article which is intended to be used to perform an unnatural sexual act);  and

*           20A (Acts committed between men at a party and which are calculated to stimulate sexual passion or to give sexual gratification, prohibited),

is as a direct result from the substantive provisions contained in the introduced Bill.

           

            Redrafted Bill

Is similar to the above but a new amendment is proposed whereby a definition of “person” is to be inserted in Act 23 of 1957 so as to ensure that the remaining provisions are only applicable in respect of adults.

The definition reads as follows: ‘“person” means a person of 18 years and older;’

 

The Bill decriminalises the actions of child prostitutes in regard to the act of prostitution.  A child is defined as a person below the age of 18 years.  The purpose of the amendment is to clarify that the remaining provisions in the Sexual Offences Act are only applicable to adult prostitution, i.e. persons older than 18.  Adult Prostitution is not dealt with in terms of the Bill and is the subject of an investigation at the SALRC.

 

16.2            Proposed amendments of the Criminal Procedure Act 51 of 1977

 

16.2.1   Section 18:  Prescription of right to institute prosecution

            Introduced Bill

Item 1 contains a proposed amendment to section 18 of Act 51 of 1977 (Prescription of right to institute prosecution) so as to include “oral genital sexual violation” and “sexual violation” under list of offences in respect of which the right to institute a prosecution never prescribes.

 

            Redrafted Bill

In keeping with the new definition of rape the references to “oral genital sexual violation” and “sexual violation” have been removed.  The proposed amendment has been extended to include the offences contained in clauses 3 (rape), 4 (compelled rape), 5 (sexual assault), 6 (compelled sexual assault), 7 (compelled self-sexual assault) and 16 to 29 (offences in respect of children and mentally disabled persons). 

 

16.2.2   Section 145

            Introduced Bill

The proposed amendment to section 145 of Act 51 of 1977, reflected in Item 2, is aimed at ensuring that a presiding officer may be assisted by an assessor in a sexual offence case who has knowledge or experience of child development, the impact of sexual offences on victims and the characteristics of sexual offenders.  A similar amendment is introduced into section 93ter of the Magistrates' Courts Act, 1944, which also deals with assessors (see Item 14 of the Schedule).

 

            Redrafted Bill

This has been deleted. As this provision would be applicable to sexual offences outside the ambit of the Bill, for example in relation to adult prostitution, it was felt that this provision was undesirable and should therefore not be enacted.  It was also felt that the amendment set too high a standard for one to qualify as an assessor in a sexual offence case.

 

16.2.3   Section 154

            Introduced Bill

The SALRC pointed out that details of victims of sexual offences, and in particular children, and of persons alleged to be the accused, but not yet formally identified as such or charged, are regularly published contrary to the prohibition contained in section 154 of Act 51 of 1977.  The proposed amendment represents a recommendation that the prosecuting authority should focus its attention on prosecuting recalcitrant publishers and media houses and that the penalty provided in sections 154 and 335A should be increased. Furthermore, section 300 of the Criminal Procedure Act is made applicable in order to assist those victims who have suffered damages as a result of their personal details being published in contravention of section 154 of the Criminal Procedure Act.  Section 300 regulates compensatory awards.

 

            Redrafted Bill

The proposed amendment has been retained but the proposed penalties have been increased. The penalty for unauthorised disclosure of the identity of a victim of sexual offences is increased to a fine or imprisonment for a period not exceeding three years (as opposed to two years) or to both such fine and imprisonment and where the victim is under the age of 18 to a fine or to imprisonment for a period not exceeding five years (as opposed to three years) or to both such fine and such imprisonment.

 

The reference to “indecent act” is replaced with “sexual act”.

 

16.2.4   Section 158

            Introduced Bill

 

In S v F 1999 (1) SACR 571 at 578j, section 158(3) was read cumulatively, which meant that the factors listed in the subsection had to co-exist before the court could order that a witness or accused may give evidence by means of a closed circuit television or similar electronic device.  In legal drafting the word “and” is usually used when the paragraphs are cumulative and “or” is used when they are disjunctive.  The placing of “and” and “or” is a matter of custom, but can lead to uncertainty.  The Commission elected to resolve the uncertainty pertaining to subsection (3) by making it clear that the existence of any one of the criteria is sufficient to justify the making of an order for closed-circuit television to be used.  The word “either” was inserted to bring this about. 

 

            Redrafted Bill

The proposed amendment has been omitted.  It was felt that a proper reading of the section would not bring about any uncertainty.

 

16.2.5   Section 164

            Introduced Bill

Section 164 is used principally for receiving the unsworn evidence of children but it is also intended to be used by persons without the intellectual capacity to understand the nature of the oath.  Frequently a child is found to be an incompetent witness on the basis that the child does not understand the oath or, when questioned, is not able to explain the difference between telling the truth and a lie.  This decision is made despite the fact that the witness may be able to tell the court quite accurately what happened to him or her, understand questions put to him or her and answer these questions intelligibly and honestly. The threshold which a potential witness has to meet in order to be found competent to testify often acts as an exclusionary measure.  The proposed amendment is aimed at ameliorating the exclusionary nature of the existing provision by allowing all evidence subject to the admonishment of the presiding officer that the truth be told.  The proviso that the person needs to be found not to understand the nature and import of the oath or the affirmation is deleted.

 

            Redrafted Bill

The proposed amendment has been amended to retain the proviso that the person must first be found not to understand the nature and import of the oath or the affirmation before being admitted to give evidence.  The proposed proviso that evidence be allowed where the person is able to understand the questions put to him or her and to respond to such questions in a manner which is intelligible has been deleted.

 

16.2.6   Section 166

            Introduced Bill

Section 166 is amended by the addition of subsection (4) to provide that an unrepresented accused may only question a vulnerable witness through the presiding officer.

 

            Redrafted Bill

This amendment has been omitted.  It was felt that it is the responsibility of the presiding officer to monitor conduct in court and that this provision is therefore superfluous.

 

16.2.7   Section 170A

            Introduced Bill

Section 170A was amended to regulate the role of an intermediary in relation to vulnerable witnesses.  It was also amended to ensure the attendance and accountability of an intermediary in court in order to address the present tardiness and non-accountability of some intermediaries.

 

            Redrafted Bill

As the substantive provision allowing for vulnerable witnesses has been deleted, the proposed insertion of subsection (7) regulating the role of an intermediary in relation to vulnerable witnesses has also been deleted.  The concern was raised that currently only witnesses under the age of 18 may be assisted by an intermediary despite the fact that although they are older than 18 years, their mental age may be below 18 years of age.  For this reason subsection (1) has been amended to provide that an intermediary may assist a witness who is under the biological or mental age of eighteen years where such witness will be subjected to undue mental stress or suffering if he or she testifies at such proceedings.  The provision ensuring the attendance and accountability of an intermediary to the court remains as is.

 

16.2.8   New section 192A:  Children competent to testify in criminal proceedings

            Introduced Bill

Section 192 provides that every witness is competent and compellable to testify unless expressly excluded.  Section 192A was inserted to expressly provide that all children (not only witnesses in sexual offence matters) are competent to testify in criminal proceedings.  This was done so as not to create an artificial distinction between children in sexual offence matters and other child witnesses.   

 

            Redrafted Bill

This provision has been omitted.  It was referred to the Department of Justice in the form of a resolution as this section applies to all children and not just children who are victims or witnesses of a sexual offence.  The Portfolio Committee was concerned that the extension of this provision to all children fell outside of its mandate in respect of this Bill.

 

16.2.9   Section 195

            Introduced Bill

In terms of section 195 the wife or husband of an accused is competent and compellable to give evidence for the prosecution where the accused is inter alia charged with any offence committed against the person of either of them or of a child of either of them.  The amendment includes the words ‘a child that is in the care of either of them’.  This amendment reflects the reality that a non-biological child may be in a spouse’s care and that the wife or husband should also be compellable to testify under those circumstances.

 

            Redrafted Bill

This proposal remains unchanged.

 

16.2.10 Section 227

            Introduced Bill

Section 227 has been amended to delineate the circumstances in which evidence of previous sexual history may be adduced.  The amendment is aimed at tempering the unfettered discretion of presiding officers to determine the admissibility of such evidence on the broad and subjective basis of relevance.

 

            Redrafted Bill

The proposed amendment has been amended slightly, primarily to bring it in line with a similar provision in Canada and changes brought about in the text of the Bill.  In subsection (1) reference to “any offence of an indecent nature” has been substituted with reference to “a sexual offence as contemplated in the Bill”.  Subsection (2) has been amended to extend the reach of section 227 beyond questions relating to sexual conduct to evidence or questions in cross examination in order to ensure that the prosecution is allowed to adduce evidence in this regard.  Subsection (5) has been amended by deleting the prohibition against granting an application to introduce sexual history where it relates to the sexual reputation of the complainant where it is intended to challenge or support the credibility of the complainant.  This would bar the prosecution from leading such evidence in favour of the complainant.

 

16.2.11 Section 238

            Introduced Bill

The existing section 238 creates a statutory presumption in respect of incest.  The proposed amendment aims to bring section 238 into line with the “gender neutral” approach adopted in the introduced Bill regarding incest.  It also expands the reach of the offence to non-penetrative sexual abuse.

 

            Redrafted Bill

The proposed amendment has been retained.  In addition, the word “incest” has been replaced with reference to the relevant clause in the redrafted Bill.

 

16.2.12 Section 276A

            Introduced Bill

Section 276 was amended by providing that a person convicted of any sexual offence shall, if practicable and if the convicted person demonstrates the potential to benefit from treatment, include the attendance of and participation in a sex offence specific accredited treatment programme, the cost of which shall be borne by the convicted person or the State if the court is satisfied that the convicted person has no adequate means to bear such cost.  To address the shortness of the period for which correctional supervision may be imposed, the period of correctional supervision has been extended from three to five years.

 

            Redrafted Bill

In essence the proposal has been retained.  The only amendment is the deletion of the obligation on the State to bear the cost of such treatment.

 

16.2.13 Section 335A

            Introduced Bill

The penalty provision in section 335A for publication of information in contravention of this section has been revised upwardly. Provision is also made in section 300 for a compensatory financial order in this regard.

 

            Redrafted Bill

This provision remains unchanged.

 

16.3            Proposed amendment of the Magistrates’ Courts Act 32 of 1944

            Section 93ter

            Introduced Bill

The proposed amendment which is identical to the amendment proposed to section 145 of the Criminal Procedure Act is aimed at ensuring that a presiding officer may be assisted by an assessor in a sexual offence case who has knowledge or experience of child development, the impact of sexual offences on victims and the characteristics of sexual offenders.

 

            Redrafted Bill

This proposal has been deleted.  As this provision would be applicable to sexual offences outside the ambit of the Bill, for example adult prostitution, it was felt that this provision was undesirable and should therefore not be enacted.  It was also felt that the amendment set too high a standard for one to qualify as an assessor in a sexual offence case.

 

16.3            Proposed amendment of the Prescription Act 68 of 1969

            Section 12

            Introduced Bill

Section 12 is amended to provide that the basic limitation period does not run while a person who has a claim is incapable of commencing proceedings because of his or her physical, mental or psychological condition and that the person who has a claim based on sexual abuse is presumed to have been incapable of commencing the proceedings earlier than it was commenced.

 

            Redrafted Bill

The rebuttable presumption that a person who has a claim is unable to institute proceedings earlier than he or she actually instituted the claim is deleted.

 

16.4            Proposed amendment of the Business Act 71 of 1991

            Amendment of Item 2 of Schedule 1

            Introduced Bill

This proposal aims to address a gap in the proposed child prostitution offence by regulating sex-on-site or recreational sex venues.  These venues fall outside the traditional definition of brothel as patrons do not have sex with each other in return for money.  Where neither alcohol nor adult material is sold these venues are not governed by any laws or regulations and admit persons of any age.  Examples of such venues include so-called darkrooms and cruise bars found at some places of entertainment.  As most of these venues do not have Turkish baths or offer massages or escort services, these venues need not register under Item 2 of Schedule 1 of the Business Act, 71 of 1991 and are therefore not subject to any form of licensing or regulation.  In other jurisdictions these venues are regulated stringently, have strict health regulations, prohibit entrance to children and often prohibit the sale of alcohol.

 

            Redrafted Bill

This provision has been deleted as it was felt that such businesses are already illegal and that there was therefore no need for this provision

 

16.5            Proposed amendments of the Criminal Law Amendment Act 105 of 1997

            Schedule 2

            Introduced Bill

(i)         Act 105 of 1997 prescribes the punishment of offenders found guilty of indecent assault (sodomy), bestiality or rape.  The SALRC proposed that oral genital sexual violation of a person below the age of 16 years and sexual violation involving the infliction of grievous harm should be added as offences qualifying for a sentence of life imprisonment.    It further recommended that (ordinary) sexual violation and oral genital sexual violation where the victim was 16 years of age or older should qualify for the terms of imprisonment currently imposed for offences referred to in Part III of Schedule 2 to the Criminal Law Amendment Act, 1997.  It should also be noted that Schedule 2, in some instances, makes a differentiation based on gender.  The proposed amendment, among others, aims to make sexual offences gender neutral. 

 

(ii)         The SALRC also recommended that the reference to "grievous bodily harm" in relation to some of the sexual offences reflected in Schedule 2 should be amended to read "grievous harm" which will provide for those instances where the infliction of bodily harm may be absent, or may be present but co-existing with psychological trauma suffered by the victim.

 

            Redrafted Bill

The proposed amendment has, in essence, remained the same except for the following:

*            Proposed amendment to replace "grievous bodily harm" with "grievous harm" has been omitted;

*            reference to “rape” in Part I has been replaced with reference to “rape” (clause 3) and “compelled             rape” (clause 4) as contemplated in the redrafted Bill;

*            reference to “indecent assault” has been replaced with reference to “sexual assault” (clause 5),             “compelled sexual assault” (clause 6) and “compelled self-sexual assault” (clause 7) of the             redrafted Bill; and

*            references to “sexual exploitation of child” (clause 16), “sexual grooming of child” (clause 17), “sexual exploitation of mentally disabled person” (clause 23) and “sexual grooming of mentally disabled person” (clause 24) have been included in the proposed amendment of Part III of the relevant schedule.

 

16.5            Proposed amendment of the Prevention of Organised Crime Act 121 of 1998

            Introduced Bill

No proposals were made.

            Redrafted Bill

 

PART IV

DRAFT COMMITTEE REPORT

 

17.        THE COMMITTEE ALSO REQUESTED THE DEPARTMENT TO PREPARE A DRAFT COMMITTEE REPORT BASED ON THE DELIBERATIONS OF THE COMMITTEE PRIOR TO THE 2004 ELECTIONS.  THE FOLLOWING DRAFT REPORT IS TABLED FOR CONSIDERATION:

DRAFT REPORT

Report of the Portfolio Committee on Justice and Constitutional Development on the Criminal Law (Sexual Offences) Amendment Bill [B50 - 2003] (National Assembly – sec 75), dated XXX 2006:

 

The Portfolio Committee on Justice and Constitutional Development, having considered the subject matter of the Criminal Law (Sexual Offences) Amendment Bill [B 50 – 2003] (National Assembly – sec 75), referred to it and classified by the Joint Tagging Mechanism as a section 75 Bill, endorses the classification of the Bill and reports the Bill with amendments [B-2003].

 

The Committee wishes to report further, as follows:

 

1. Clause 18 of the Bill, as introduced, reads as follows:

Application of caution and requirement for corroboration

 

18. Despite the provisions of the common law, any other law or any rule of practice, a court must not treat the evidence of a witness in criminal proceedings pending before that court with caution and must not call for corroboration of evidence solely on account of the fact that the witness is –

                                                (a)            the complainant of a sexual offence;  or

                                                (b)            a child.”.

 

While not wishing to express a view for or against the provision at this stage, which confines itself to sexual offences and children, the Committee raised the question that if the “cautionary rule” is to be removed, should the scope of the removal not be broader.  The Committee consequently requests the Department of Justice and Constitutional Development to investigate this aspect and to report back to it as soon as possible, with amending legislation preferably in the Criminal Procedure Act, 1977 (Act 51 of 1977), if necessary.

 

                        2.            Clause 19 of the Bill, as introduced, reads as follows:

                                                Drug and alcohol treatment orders

 

19. A court may, upon conviction of a person having committed a sexual offence and if satisfied that the convicted person is dependent on or has the propensity to misuse alcohol or any drug and may benefit form treatment, grant an order in terms of section 296 of the Criminal Procedure Act, 1977 (act No. 51 of 1977), and such an order may be made in addition to any sentence, including a sentence of imprisonment which is not suspended.”.

 

Again, while not wishing to express a view on the merits of this provision, the Committee was of the opinion that this provision, dealing with the sexual offender rather than sexual offences, which is the focus of the draft legislation, should be referred back to the Department of Justice and Constitutional Development for further consideration and investigation.  The question was raised whether a provision of this nature, if it is to be enacted, would not be better placed in the Criminal Procedure Act, 1977 (Act No. 51 of 1977).  The Committee also requested the Department to revisit this proposal in the context of sections 51 and 52 of the Criminal Law Amendment Act, 1997 (Act No. 105 of 1997), dealing with compulsory/minimum sentences.  The Committee consequently suspends this clause until the Department has reported back.

           

3. Clause 20 of the Bill as introduced into Parliament deals with the supervision of dangerous sexual offenders and provides, among others, that a court that has convicted a person of a sexual offence can declare such a person to be a dangerous sexual offender if that person has more than one conviction for a sexual offence, if the sexual offence in question was accompanied by violence or if the person has been convicted of a sexual offence against a child.  In such a case the court can order, as part of the sentence, that when the offender is released from prison after serving part of his or her sentence, he or she be placed under long term supervision by an appropriate person for a period of not less than five years.  The Committee raised a number of questions regarding this provision, among others, the following:

(i) What are the financial implications?

(ii) Are statistics available about recidivists, bearing in mind that approximately 58 000 rape cases are reported each year?

                        (iii)            Have the constitutional implications of this provision been addressed adequately?

                        (iv)            Why is a clause of this nature necessary and where does it come from?

The Committee decided to suspend this provision until the Department reports on these questions and requests the Department to report back immediately after the new Parliament commences after the elections.

 

Report to be considered.”.

 

 

 

 

 



[1] .            Common law definition of “incest”:  “unlawful and intentional sexual intercourse between two persons who on account of consanguinity, affinity or adoptive relationship may not marry one another”.

[2] .            Common law definition of “bestiality”:  “unlawful intentional sexual intercourse with an animal per vaginam or anum”.

[3] .            Common law definition of “violation of a corpse”:  “unlawful and intentional physical violation of a dead human body”.

[4] "The SALRC has examined in detail various measures, which might produce a lesser invasion of the rights of the alleged offender.  Subject to one qualification, there seems to be no suggestion for a less invasive measure, which would promote the rights of the alleged victim.  The qualification is this:  In the immediate post-exposure period, there is a very high level of urgency if a PEP intervention is to be undertaken successfully.  It seems to me that if the alleged offender is given a hearing at this stage, it is likely to lead to delays, which will make an effective PEP intervention impossible.  At that time, there is no less restrictive means available, other than that which is proposed in the Bill (to exclude a hearing by the alleged offender).  However, once that immediate period has passed, although urgency remains, it is reduced in its intensity.  The damage caused by a delay of a few days would be limited.  It seems to me that at that stage, it is possible to have a less invasive measure, which achieves the desired result, by giving the alleged offender the opportunity to respond to the application for compulsory testing.  It should be possible to construct a procedure which is quick, which is conducted only on paper, which does not provide for oral argument, and which does not allow the complainant to confront the offender, but which nevertheless enables the alleged offender to answer the application.".