BRIEFING OF SELECT COMMITTEE ON SECURITY AND CONSTITUTIONAL DEVELOPMENT ON JUDICIAL MATTERS SECOND AMENDMENT BILL, 2013 DATE : 19 NOVEMBER 2013
OVERALL OBJECTS OF THE BILL • To amend the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (Act 32 of 2007) (the Sexual Offences Act), to enable the Minister to designate certain courts as sexual offences courts. • In order to achieve this, the Bill – • inserts a new section in the Sexual Offences Act, providing for the designation of sexual offences courts; • effects changes to section 66 of the Sexual Offences Act to allow relevant government institutions involved in these courts to issue instructions relating to the functioning of these courts; • effects changes to section 67 of the Sexual Offences Act to empower the Minister to make regulations relating to the functioning of these courts; and • amends the long title of the Sexual Offences Act to refer to the courts to be designated as sexual offences courts.
BACKGROUND INFORMATION • Sexual offences courts existed in the past, the first one as a pilot project, which was later rolled out. • Later these courts became dedicated sexual offences courts with mixed court rolls, giving priority to sexual offences. • The demise of these courts was criticised in different quarters, including Parliament, due to the high rate of sexual violence perpetrated and the impact of sexual abuse on victims. • In June 2012 the Minister established a Ministerial Task Team with the mandate to investigate the feasibility of re-introducing the sexual offences courts. • The Task Team completed its mandate and concluded that there is a need for the re-introduction of sexual offences courts in order to improve the performance of the courts in managing cases of sexual offences. • Since then, the Minister has launched a number of these courts, for example in Butterworths, Welkom and Ntuzuma.
The Bill provides a legislative framework for the establishment of sexual offences courts. These courts can be established without a legislative framework. However, a proper legislative framework is required to ensure that these courts operate successfully: To ensure that the courts established preside over matters for which they were established; to ensure oversight of these courts; to ensure that these courts operate according to specific norms and standards; and to ensure that the necessary services are rendered to victims of sexual abuse. THE NEED FOR A LEGISLATIVE FRAMEWORK TO DESIGNATE SEXUAL OFFENCES COURTS
CONTENT OF THE BILL • The Bill inserts section 55A in the Sexual Offences Act, and therefore an amendment to the Index to that Act is required. • The proposed new section empowers the Minister to designate courts, where the need arises, as sexual offence courts exclusively for the purposes of the trial of any person or other proceedings arising out of an alleged commission of a sexual offence. • The courts to be designated are all trial courts at district court, regional court and High Court level – either an entire Division or only the main seat or a local seat. • The designation of these courts must be preceded by consultation with the judiciary and the prosecuting authority as such a designation will have implications for these institutions. • The area of jurisdiction of a court designated is not affected unless it is increased or decreased by the Minister after consultation with the prosecuting authority and the judiciary.
CONTENT OF BILL CONT • The Bill provides that a court that has not been designated as a sexual offences court may still hear sexual offences matters. • In order to ensure that the courts operate efficiently and effectively in terms of an appropriate legislative framework, section 66 of the Sexual Offences Act needs to be amended. • Section 66 requires the National Commissioner of the SAPS, the NDPP and the DG: Health to supplement the Act by issuing instructions and directives to members of their staff relating to the duties imposed on such members in respect of sexual offences. • The Bill seeks to broaden the powers of these functionaries to enable them to also issue instructions and directives to their staff members relating to their duties in respect of designated sexual offences courts. It also empowers the DG: Social Development to issue directives for officials of that Department relating to their duties in respect of sexual offences courts.
CONTENT OF BILL CONT • These institutions play a crucial role in service delivery to victims and the functioning of the sexual offences courts will place different demands on the institutions. • Therefore, these institutions must be empowered to issue binding instructions to their officials to ensure that these courts operate successfully. • In order to further strengthen the legislative framework, section 67 of the Sexual Offences Act is to be amended which gives the Minister the power to make certain regulations. • This provision is extended to give the Minister the power to make regulations necessary to give effect to the designation of the sexual offences courts including the requirements for the efficient and effective functioning thereof.