1. Report of the Portfolio Committee on Justice and Constitutional
Development on the matter of the tagging of the Criminal
Law (Sexual Offences and Related Matters) Amendment Bill [B50B – 2003], and
matters related thereto
1. Introduction
The National Assembly referred the Criminal Law (Sexual Offences and Related
Matters) Amendment Bill [B50B – 2003], back to the Portfolio Committee on
Justice and Constitutional Development (“the Committee”), on 16 November 2006, in order for the Committee to consult
with the Joint Tagging Mechanism (“JTM”) in terms of Rule 249(3)(e) of the Rules of the
National Assembly. It having been required that the Committee
responds to certain legal opinions, prior to the consultation, the committee reports
as follows.
2. Background
2.1 The Bill was introduced in Parliament, towards
the end of 2003, as the Criminal Law (Sexual Offences) Amendment Bill [B50 –
2003] (“the Amendment Bill”). The Committee having been briefed by the
Department for Justice and Constitutional Development (“the Department”) on the
provisions of the Amendment Bill, had the opportunity to consider submissions
by various interested parties in respect of the Amendment Bill. A total of 128
(one hundred and twenty eight) submissions were considered at that stage. Based
on these and the Committee’s provisional deliberations, at the time, the
Committee instructed the Department to develop a working draft, which would incorporate
the Committee’s proposed amendments. The Department returned to the Committee, in February 2004, with
the working draft that was submitted to the Committee for further
consideration. The Committee considered the working draft, deliberated further
on certain matters and issued further instructions to the drafters, amongst
others, to integrate the provisions of the Compulsory HIV Testing of Alleged
Sexual Offenders Bill [B10 – 2003] (“the HIV Testing Bill”) into the Bill and
further to engage the Department of Health to examine the feasibility of
inserting provisions dealing with extending Post Exposure Prophylaxis (“PEP”)
to victims of rape.
2.2 Due to the imminent holding of national elections in April 2004 and the
disbanding of the Second Parliament, the Chairperson of the Committee, at the
time, Advocate Johnny de Lange, MP, was mandated by the Committee to ensure
that the Committee’s views were fully captured in a further draft of the
Amendment Bill, which could be considered by the Committee after the elections.
2.3 The Third Parliament, on 15 June 2004, revived the Amendment Bill, from the
stage it had reached in the Second Parliament
2.4 At the conclusion of the above drafting process, the Department presented a
redrafted version of the Bill entitled the Criminal Law (Sexual Offences)
Amendment Bill (“the Redrafted Bill”). The new Minister for Justice and
Constitutional Development, Ms Brigitte Mabandla,
M.P., approached Cabinet, early in 2006, to advise Cabinet of the contents of
the Redrafted Bill. This was an extraordinary step, which the new Minister felt
was necessary, due to the extensive amendments proposed to the Amendment Bill
by the Committee. Cabinet agreed that the Redrafted Bill be referred back to
the Committee for further processing and finalisation.
2.5 Notwithstanding the extensive public participation process completed in
2003 in respect of the Amendment Bill, the current Chairperson of the
Committee, on 10 May 2006, issued a press statement, amongst others, stating
that as “… it is the practice of the Portfolio Committee to continue accepting
submissions beyond the oral hearing stage of the legislative process,
interested parties are hereby invited to address further written submissions
…”, on the Redrafted Bill, to the Committee.
2.6 Work in the Committee commenced in early June 2006, with the Department and
the previous Chairperson of the Committee presenting the Committee with
comprehensive briefings on the provisions of the Redrafted Bill. Interested
parties submitted their comments on the provisions of the Redrafted Bill, which
at that stage already contained the provisions currently under scrutiny
(previously clauses 31 and 32 and currently clauses 28 and 29), including those
provisions of the HIV Testing Bill dealing with the compulsory HIV testing of
alleged sexual offenders.
2.7 This Redrafted Bill, containing the essence of the now contentious
provisions, was extensively distributed and promoted, and approximately 35
(thirty five) further submissions were forthcoming. None of which raised the
issue of tagging.
2.8 The Committee passed the re-drafted Criminal Law (Sexual Offences and
Related Matters) Amendment Bill [B50-B] 2003 (“the Bill), on 10 November 2006,
after further amendments were introduced arising from the Committee’s
consideration of all submissions received and its further deliberations, in
terms of rule 249 (3)(g). The Bill was scheduled for passing in the National
Assembly, on 16 November 2006.
2.9 In the Report of the Committee published in the Announcements, Tabling and
Committee Reports (154-2006) on 10 November 2007, the following was inter-alia
stated: “ The Portfolio Committee…having considered the subject matter of the
Criminal Law (Sexual Offences)
Amendment Bill [B50-2003] (National Assembly –sec 75), and the Compulsory HIV
Testing of Alleged Sexual Offenders Bill [B10-2003] (National Assembly-sec 75),
referred to it and classified by the Joint Tagging Mechanism as section 75
Bills, agrees with the tagging of the Bill as a section 75 Bill …”
2.10 The National Assembly debated the Bill on 16 November 2006, but did not
approve the Bill. The Bill was referred back to the Committee. The referral of
the Bill was occasioned because of representations received, at the eleventh hour of the Bill’s passage
through the National Assembly, by the
Speaker of the National Assembly and the Chairperson of the National
Council of Provinces, from an NGO,
representing the interests of sex workers, known as the Sex Worker Education
and Advocacy Taskforce (“SWEAT”).
2.11 Accordingly, the following motion, as noted in the minutes of the
National Assembly, was adopted: “That the Bill be referred back to the
Portfolio Committee on Justice and Constitutional Development to consult with
the JTM in terms of
Rule 249(3)(e).”
3. Process
Upon enquiry from the Secretary to the National Assembly, the understanding was reached that the Committee
would consider the attached legal opinions and respond thereto in the form of
report of the Portfolio Committee. After the Committee’s response was
considered by the Joint Tagging Mechanism, and should any meeting in terms of
Rule 249(3)(e) still be necessary, such a process would be embarked upon.
4. Objection by SWEAT
4.1 SWEAT, during the course of the deliberations on the Bill in the
Committee, made it clear that it is opposed to clause 11, which confirms the existing legal position determined by the
Constitutional Court in the State v Jordan and Others (Sex Workers Education
and Advocacy Taskforce and Others as Amici Curiae)
2002 (6) SA 642 (CC). The effect of this judgment is that clients of adult
sex workers are equally guilty of contravening the relevant provisions of the
Sexual Offences Act, 1957 (Act 23 of 1957), when they engage the sexual
services of sex workers. Clause 11 was inserted by the Committee as a result of
this determination by the
provisions of Chapter 11 of the Constitution confer upon the provincial
legislature legislative competence. It also has implications for the provision
of health services.”
4.2 It is noted by the Committee that SWEAT did not specifically raise any
objection to clauses 28 and 29, but did raise that the
legislation has implications for the provision of health services (whatever
that may mean).
5. Legal opinion: Parliamentary Law Advisers
5.1 The Parliamentary Law Advisers were requested by the Speaker to provide
an opinion on the issues raised by SWEAT. The opinion of the Parliamentary Law
Advisers is rather sparsely argued, if at all, and, therefore, of minimal legal
value or importance.
5.2 The Parliamentary Law Advisers are of the view that the basis of SWEAT’s argument, as far as Chapter 11 of the Constitution
is concerned, is incorrect. The Committee agrees with this view. Nonetheless, on their own initiative,
the Parliamentary Law Advisers raise the argument that clauses 28 and 29
of the Bill fall within a functional area listed in Schedule 4 of the
Constitution, namely health services, and go “beyond being merely incidental to
the dominant purpose” of the Bill. This is in direct contrast to their view
when dealing with the compulsory HIV testing of alleged rapists, which “… could
be regarded as health services incidental to the dominant purpose of the Bill
…”
5.3 As the Parliamentary Law Advisers do not explain, in their written opinion,
how they legally come to their conclusion, or even what legal test is or should
be applied, it is not possible for the Committee to respond to this “opinion”.
Suffice to say the Committee disagrees.
6. Legal opinion: Senior Counsel
6.1 On 15 November 2006, the day before the Second Reading Debate of the
Bill, the Deputy Speaker received a legal opinion from senior counsel in
private practice. Counsel pointed out that the “… opinion is required urgently
and, accordingly, we have not had sufficient time to prepare a comprehensive
opinion.”. It must further be noted that the terms of
reference of the opinion requested from Counsel was narrowly defined and in the
form of response to an opinion already formulated by the Parliamentary Law
Advisers. In other words, the Parliamentary Law Advisers already concluded that
the Bill must be split and asked Senior Counsel to confirm this view that
officials of Parliament had arrived at.
6.2 The relevant opinion is attached, but it is apposite to highlight the
following aspects of counsel’s opinion:
“8. The Parliamentary Law Advisors and State Law Advisors are in agreement
that these provisions fall within the ambit of “Health Services” and therefore
within the ambit of a functional area listed in Schedule 4 to the Constitution,
and that therefore the Bill (or portions of it) must be referred to the NCOP as
provided for in section 76 of the Constitution.
11. We are asked whether-
11.1 the aforesaid provisions of the Bill fall within the ambit of ‘Health
Services’ as listed in Schedule 4 to the Constitution; and
11.2 the Bill must be referred to the NCOP as contemplated in section 76 of the
Constitution..
16. The purpose of a recent article, ‘Tagging’ Bills in Parliament: Section 75
or Section 76?, by Christina Murray and Richard Simeon (The South African Law
Journal, Vol. 123, Part 2 (2006)), is said to be “concerned with the way one
determines whether or not a bill is ‘with regard to any matter within a
functional area listed in Schedule 4’. The question is how to determine whether
or not a national bill should follow the s 75 or s 76 route through
Parliament.” ………
19. Murray and Simeon describe the process that Parliament follows in relation
to the classification of Bills (at page 243 – 244 of the article): ‘… Most
important (and troublesome) in this context is the way in which Parliament
deals with bills containing provisions that relate both to a matter listed in s
76 as well as to a matter that is not referred to in s 76. In such cases,
Parliament first asks ‘what is the pith and substance of the bill? Or, to use
words of the Privy Council, ‘what is the “true nature and character” of the
bill? If the answer to that question is, say, housing or agriculture or another
matter that is included in Schedule 4, the bill will be tagged ‘s 76’ and any
sections in it that touch on matters outside provincial jurisdiction will be
considered incidental and thus not impact on the tagging decision. Conversely,
if the ‘pith and substance’ of the bill is a matter which falls outside those
matters referred to in s 76, the bill will be tagged ‘s 75’ and provisions
touching on s 76 matters will be considered incidental and irrelevant to the
tagging decision. But, if the bill cannot be said to have a single ‘pith and
substance’ and is deemed to cover both s 76 and other matters it will be
classified as a mixed bill and, under the Joint Rules, declared impermissible.
Then it must be divided into two – one part to follow the s 75 process, the other
the s 76 process.” (Committee’s emphasis).
21. In Ex parte President of the Republic of South Africa: In re
Constitutionality of the Liquor Bill 2000 (1) SA 732 (CC) (“the Liquor Bill
case”), in an obiter dictum, at paragraph 27, Cameron AJ set out the test in the following
terms: ‘This subsection [s 76(3)] requires that a Bill must be dealt with under
the procedure established by either s 76(1) or s 76(2) … if it falls within a
functional area listed in Schedule 4. It must be borne in mind, moreover, that
s 76 is headed ‘Ordinary Bills affecting provinces’. This is, in my view, a
strong textual indication that s 76(3) must be understood as requiring that any
Bill whose provisions in substantial measure fall within a functional area
listed in Schedule 4 be dealt with under s 76.’ (Committee’s emphasis)
22. The question in this particular case clearly is whether or not the
provisions of the Bill ‘in substantial measure fall within a functional area
listed in Schedule 4’
23. In the time available to us, we have not been able to closely examine all
of the provisions of the Bill, but on first reading of the Bill the only
provisions thereof that appear to fall within the functional area listed in
Schedule 4 are the provisions referred to above, namely clauses 28 and 29,
which fall within ‘Health Services
24. In our view that does not meet the test set out by Cameron A J in the
Liquor Bill case. However, in our view the matter does not end there
(Committee’s emphasis)
25. In the case of Ex parte Western Cape Provincial Government: DVB Behuising (Pty) Ltd v Northwest Provincial Government 2001
(1) SA 500 (CC) (‘the Western Cape case’), at
paragraph 17, the Constitutional Court states: ‘In the interpretation of those
Schedules there is no presumption in favour of either
the national Legislature or the provincial legislatures. The functional areas
must be purposively interpreted in a manner which will enable the national
Parliament and the provincial legislature to exercise their respective
legislative powers fully and effectively.’ (Counsel’s
emphasis.)
26. We are of the view that the principle underlying this dictum is
that where there are provisions which would (adversely) affect the exercise of
a legislative power by a province or the administration of a functional area
listed in Schedule 4 by a provincial government, such a provision cannot be
approved by the National Assembly alone.
27. In our view clauses 28 and 29 referred to above are clearly provisions that
will affect the administration of a functional area listed in Schedule 4 by a
provincial government.”
7. Dominant Purpose Test or Pith and Substance Test
(i.e. true nature and character of the Bill or provisions which fall in
substantial measure within relevant functional area).
7.1 When tagging Bills, Parliament has consistently applied the “dominant
purpose” test, in which the “true nature and character” or the “pith and
substance” of a Bill is determined, in order to classify it as a Bill in
respect of which the procedure established in terms of section 75 or 76 of the
Constitution should be followed, in the promotion of the Bill through the
Parliamentary process. There are many examples of justice-related draft
legislation that were classified as section 75 Bills in view of the dominant
purpose thereof. The Promotion of Access to Information Act, 2000 (Act 2 of
2000), the Promotion of Administrative Justice Act, 2000 (Act 3 of 2000), and
the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000
(Act 4 of 2000), serve as examples of legislation that has an impact on the
administration of provincial government departments, but which were
nonetheless, in view of their dominant purpose, namely, to give effect to
certain constitutionally enshrined rights, classified as section 75 Bills. The
most recent example of a justice-related Bill that was classified as a section
75 Bill is the HIV Testing Bill.
7.2 The HIV Testing Bill was considered by the Department and the State Law
Advisers to be a Bill to be dealt with in accordance with section 75 of the
Constitution. The classification was endorsed by the JTM and the HIV Testing
Bill was introduced as a section 75 Bill. This HIV Testing Bill contained
provisions that, amongst others, required the Minister of Health to designate
health establishments at which HIV testing will be done and that the State
would be liable for the costs relating to HIV testing. The HIV Testing Bill
provided certain services for victims of sexual offences, i.e. testing alleged
rapists at the instance of victims which of necessity held financial
implications for the State (Provinces). However, as the dominant purpose of the
Bill, having regard to all the provisions in the HIV Testing Bill, was to
provide services to victims of crime in the criminal justice arena, the Bill
was classified as a Section 75 Bill. Correctly so, in the
view of the Committee.
7.3 Even the Parliamentary Law Advisers agree with the approach, as far as the
classification of the HIV Testing provisions are concerned, but have difficulty
in following this approach in respect of clauses 28 and 29 of the Bill. The
Committee is of the view that providing PEP to victims of rape is in substance
no different to the provisions of the Bill dealing with HIV testing.
7.4 It is further important to note that the application of the dominant
purpose test is applied to the “pith and substance” of a Bill as a whole and
not the “pith and substance” of individual clauses of a Bill. Counsel conclude
in paragraph 22 of their opinion that the “… question in this particular case
clearly is whether or not the provisions of the Bill ‘in substantial
measure fall within a functional area listed in Schedule 4’.” (Committee’s
emphasis).
7.5 Counsel in the opinion, upon applying the “pith and substance” test, then
in our view correctly concludes that “… the only provisions … that appear to
fall within a functional area listed in Schedule 4 are … clauses 28 and 29”,
which in Counsel’s view “does not meet the test … in the Liquor Bill case”. In
other words, these two clauses do not make the provisions of the Bill “in
substantial measure fall within the functional area listed in Schedule 4”. That
should have been the end of Counsel’s enquiry and the Bill should have been
dealt with in terms of section 75. However, for some reason which remains
totally obscure, Counsel then quotes a dictum from the Western Cape case, which
is obiter dicta, dealing with the rules of interpretation to be applied in that
case and most definitely does not deal with the tagging of legislation. After
quoting this dictum, which is totally unrelated to the issue of tagging and
without giving reasons for doing so, Counsel ignores the dominant purpose test
that he has just analysed and concluded in respect of
and turns an ordinary rule of interpretation into a new test for tagging
legislation. We are spared the arguments and reasons for Counsel doing so.
However, in defence of Counsel, it should be noted
that counsel pointed out that in the time available to them they “were not able
to examine all provisions of the Bill closely.” This issue is more fully dealt
with below.
7.6 Then, Counsel expressed the opinion that the Bill should be split and that
clauses 28 and 29 be incorporated in a separate Bill, which would follow the
section 76 procedure.
8. The Western Cape test
8.1 In coming to the conclusion to split the Bill counsel apply the “test”
in the Western Cape case
8.2 The Committee is of the view that the ‘test’ in this case, i.e. that
“functional areas must be purposively interpreted in a manner which will enable
the national Parliament and the provincial legislature to exercise their
respective powers fully and effectively”, is not the test used in the tagging
of bills and that this test has been misapplied in this regard. The
8.3 This would mean that paragraphs 25 to 28 of Counsel’s opinion cannot be
supported by the Committee. However, the Committee does agree with the
conclusion arrived at by Counsel in paragraph 24, namely that the dominant
purpose of the Bill, including clauses 28 and 29, classifies it as a section 75
Bill and should be dealt with accordingly.
8.4 However, should the “test” devised by counsel, i.
e. “where there are provisions which would (adversely) affect the exercise of a
legislative power by a province or the administration a functional area listed
in Schedule 4 by a provincial government, such a provision cannot be approved
by the National Assembly alone”, be applied, in relation to the Bill, the
following is pertinent:
(i) Section 28(a)(i)
reads in part:
“If a victim has been exposed to the risk of being infected with HIV as the
result of a sexual offence having been committed against him or her, he or she
may—
(a) subject to subsection (2)—
(i) receive PEP for HIV infection, at a public health
establishment designated from time to time by the cabinet member responsible
for health by notice in the Gazette for that purpose under section 29,
at State expense and in accordance with the State's prevailing treatment norms
and protocols”;
(ii) it must be noted that these clauses do not represent a change in existing
health policies in any way, either as it pertains to PEP treatment, or testing
for HIV;
(iii) it must be noted that these clauses do not add any costs to provincial
government in respect of existing policies as it pertains to PEP treatment;
(iv) the clauses do not, in any manner, attempt to make or amend policy;
(v) the provisions were carefully drafted in language that ensures that the
Minister of Health remains in control of and responsible for a Government
policy which has already been agreed to, costed and
implemented at provincial level.
8.5 No “detriment” to provincial legislative or administrative powers can be
said to have occurred as a result of extending existing service delivery
mechanisms to victims of rape within existing approved expenditure, and
therefore even on the application of this (erroneous) test, the Bill should be
classified as section 75 legislation.
9. The splitting option
9.1 Clauses 28 and 29 of the Bill provides as follows:
“Services for victims relating to Post Exposure Prophylaxis and compulsory HIV
testing of alleged sex offenders
28. (1) If a victim has been exposed to the risk of being infected with HIV as
the result of a sexual offence having been committed against him or her, he or
she may—
(a) subject to subsection (2)—
(i) receive PEP for HIV infection, at a public health
establishment designated from time to time by the cabinet member responsible
for health by notice in the Gazette for that purpose under section 29,
at State expense and in accordance with the State's prevailing treatment norms
and protocols;
(ii) be given free medical advice surrounding the administering of PEP prior to
the administering thereof; and
(iii) be supplied with a prescribed list, containing the names, addresses and
contact particulars of accessible public health establishments contemplated in
section 29(1)(a); and (b) subject to section 30, apply to a
magistrate for an order that the alleged offender be tested for HIV, at State
expense.
(2) Only a victim who—
(a) lays a charge with the South African Police Service in respect of an
alleged sexual offence; or
(b) reports an incident in respect of an alleged sexual offence in the
prescribed manner at a designated health establishment contemplated in
subsection (1)(a)(i), within 72 hours after
the alleged sexual offence took place, may receive the services contemplated in
subsection (1)(a).
(3) A victim contemplated in subsection (1) or an interested person must—
(a) when or immediately after laying a charge with the South African
Police Service or making a report in respect of the alleged sexual offence, in
the prescribed manner, be informed by the police official to whom the charge is
made or by a medical practitioner or a nurse to whom the incident is reported,
as the case may be, of the—
(i) importance of obtaining PEP for HIV infection
within 72 hours after the alleged sexual offence took place;
(ii) need to obtain medical advice and assistance regarding the possibility of
other sexually transmitted infections; and
(iii) services referred to in subsection (1); and (b) in the case of an
application contemplated in section 30, be handed a notice containing the
prescribed information regarding the compulsory HIV testing of the alleged
offender and have the contents thereof explained to him or her. Designation of
public health establishments for purposes of providing Post Exposure
Prophylaxis and carrying out compulsory HIV testing
29. (1) The cabinet member responsible for health must, by notice in the Gazette,
designate any public health establishment for the purposes of—
(a) providing PEP to victims; and (b) carrying out compulsory HIV
testing, and may, by notice in the Gazette, withdraw any designation
under this section, after giving 14 days' prior notice of such withdrawal in
the Gazette.
(2) The first notice in terms of subsection (1) must be published within two months
of the implementation of this section, and at least at intervals of six months
thereafter.
(3) The Director-General: Justice and Constitutional Development must, within
14 days of publication of each designation or withdrawal thereof contemplated
in subsection (1), provide a copy of the notice to—
(a) the relevant role-players falling under his or her jurisdiction; and
(b) the National Commissioner of the South African Police Service, the
Commissioner of Correctional Services and the Director-General of Health.
(4) The National Commissioner of the South African Police Service, Commissioner
of Correctional Services and Director-General of Health must distribute the
notice referred to in subsection (1) to all relevant role-players falling under
his or her jurisdiction.”
9.2 The provision of PEP to sexual offence victims is predicated upon such
person reporting a crime of rape and presenting him or herself to a designated
health institution within 72 hours of the alleged crime. The relevant
provisions are not intended to extend or regulate access to PEP by all persons
who could benefit from its use. The provisions are only aimed at those victims
of rape who, within 72 hours after the commission of the alleged rape, report
the crimes that have been committed against them within the criminal justice
system. In other words, for the provision to be activated the victim must
‘enter’ the criminal justice system through reporting a crime i.e. laying a
charge. A serious charge such as a charge of rape may be proceeded with even
without the co-operation of the victim in our law, and only the Prosecuting
Authority may decide not to proceed with such a case. Police-bail does not
apply in rape matters, and only a court/prosecutor may grant bail. These
aspects relating to justice cannot be divorced from the provision of PEP to
persons laying a charge of rape as contained in the Sexual Offences Bill. It is
submitted that it would be inappropriate should these clauses be ‘split’ from
the Sexual Offences Bill into another Bill, to classify that Split Bill as a
section 76 Bill. For the clause to be split from the rest of the Bill the
matter of the reporting of the crime would again have to be considered within
the context of concurrent powers and the Constitution.
9.3 In other words, the content of these two clauses themselves are of a
“mixed” nature. Therefore, even if these clauses are split from the Bill and
placed in a separate Bill, that Bill will then in turn be a “mixed Bill’ and it
in turn will have to be split. A procedural and legal absurdity would result.
It may be noted that the Parliamentary Law Adviser and Counsel do not at any
stage recognise the “mixed nature” of the contentious clauses 28 and 29, while
they do recognise the mixed nature of the Bill as a whole. This oversight alone
is fatal to the conclusions they arrive at.
9.4 Furthermore, to “split” clauses 28 and 29 from the Bill will be detracting
from the objects of the Bill which are, in a single piece of legislation, “… to
afford complainants of sexual offences the maximum and least traumatising
protection that the law can provide, to introduce measure which seek to enable
the relevant organs of state to give full effect to the provisions of this Act
and to combat and, ultimately, eradicate the relatively high incidence of
sexual offences committed in the Republic…”
10. Conclusion
10.1 It is the Committee’s considered view that
(i) the Bill falls in substantial measure within the
functional areas listed under section 75 and accordingly is correctly
classified as a section 75 Bill.
(ii) the dominant purpose test, if correctly applied i.e. by determining the
pith and substance of a Bill as a whole and not the individual clauses thereof,
is the correct test to be employed in the tagging of Bills;
(iii) the dominant purpose test, as explained by Murray and Simeon and as
followed in our jurisprudence and in various other jurisdictions, is applied by
establishing the pith and substance (or true nature and character) of a Bill as
a whole and if the answer to that question is a matter that falls within the
functional areas listed in Schedule 4, the Bill will be tagged section 76 “and
any sections in it that touch on matters outside provincial jurisdiction will
be considered incidental and thus not impact on the tagging decision,”;
(iv) the converse of the test is that if the pith and substance of the Bill “…
is a matter which falls outside those matters referred to in section 76, the
Bill will be tagged section 75 and provisions touching on section 76 matters
will be considered incidental and irrelevant to the tagging decision”;
(v) only where the dominant purpose test cannot conclusively assist in
determining whether a Bill as a whole should be promoted in terms of section 75
or 76 will the splitting of the provisions thereof in terms of the Rules of
Parliament, become feasible, i.e. as with a mixed bill;
(vi) the pith and substance of the Sexual Offences Bill, as a whole, falls
within functional areas covered by the criminal justice system and therefore
falls within the realm of section 75 legislation. Accordingly, the Bill falls
outside the realm of section 76, since it aims, in a single piece of
legislation, “to afford complainants of sexual offences the maximum and least
traumatising protection that the law can provide, to introduce measures which
seek to enable the relevant organs of state to give full effect to the
provisions of this Act and to combat and, ultimately, eradicate the relatively
high incidence of sexual offences committed in the Republic”; (vii) clauses 28
and 29 of the Bill are “mixed” provisions which contain elements of section 76
functional matters and should be considered merely incidental to the section 75
nature of the Bill and irrelevant to the tagging of the Bill.
10.2 The adoption by the JTM of the “test”, as proposed by counsel in the
10.3 The Committee is keen to present its report to the JTM at the soonest
opportunity and to be present, to orally present its view, when the report is
considered by the JTM.
10.4 This report has been unanimously agreed to by the parties in the
Committee.
Report to be considered.