Firearms Control Bill; Constituency Work; Women’s Budget; Cedaw Optional Protocol

Meeting report

JOINT MONITORING COMMITTEE ON IMPROVEMENT OF QUALITY OF LIFE AND STATUS OF WOMEN
11 October 2000
FIREARMS CONTROL BILL; CONSTITUENCY WORK; WOMEN’S BUDGET; CEDAW OPTIONAL PROTOCOL

Chairperson :  Ms P Govender

Relevant Documents:
Opinion from Women’s Legal Centre on the Firearms Control Bill, 2000 and how it relates to the Domestic Violence Act, 116 of 1998 [see Appendix 1].

SUMMARY
The Committee decided that it would table a report for Parliament on the issues it had raised with the Firearms Control Bill and that it would try and ensure that the Bill was amended to address the last of its concerns before the bill was passed in the National Council of Provinces. The Committee also agreed that it would request the redrafting of the Banks Amendment Bill in a gender sensitive manner, to be completed within twelve months.

As part of constituency work, members must alert themselves to AIDS/HIV programmes occurring within their provinces and try and partake in these. Members must report on these programmes and their involvement when the committee reconvenes in February. CASE will assist the Committee in basic research around jobs, violence and AIDS/HIV and this information will then be used to influence the 2002 Women’s Budget.

MINUTES
Firearms Control Bill
·  The Bill must still go through the NCOP and the Chair indicated that the Committee should develop a strategy to ensure that the Committee’s concerns were addressed before the Bill was passed.
·  A member of the Department of Safety and Security was present and highlighted that most of the concerns raised by the Women’s Committee had been addressed in the Bill and appropriate amendments made, however, there remains one last concern : S 102(1)(a) of the Bill states that a final protection order is necessary for non-compliance with the competency criteria, and a interim protection order is not sufficient for non-compliance with the criteria. It was pointed out that this is a problem because there is a two week delay before a final protection order is granted which is sufficient time for an individual, subject to an interim protection order, to be awarded a firearm license in accordance with the competency criteria. In addition, even if a final protection order has been granted, the Registrar may decide to grant the firearm license (i.e. it is in the Registrar’s discretion). Furthermore, S 103 states that a person who is found guilty of a violent or sexual offence in terms of the Domestic Violence Act will not be fit to possess a firearm, but if guilty of any other offence in terms of the Domestic Violence Act, that person will still be fit to possess a firearm.
·  It was agreed by the committee that it would table a report on the process it has followed and that this report would be taken to the NCOP to ensure that Parliament was aware of the concerns that have been raised. It was also agreed that the committee would insist that the Firearms Control Bill be brought to the top of the schedule in the NCOP to ensure that it was dealt with.
·  The Committee agreed that it should be part of the process of drafting regulations.
·  See opinion from Women’s Legal Centre on Domestic Violence Act

Banks Amendment Bill
·  The Chair commented that no decision had been taken by Parliament to exclude finance bills from being drafted in a gender sensitive manner;
·  Therefore the committee would insist that the Interpretation Act be tabled in Parliament so that the committee would raise its concerns with Parliament;
·  Furthermore, the committee will request that the Banks Amendment Bill be redrafted within 12 months;
·  It was pointed out that the concerns that had been raised by the committee about the lack of gender sensitivity in the bill would be raised with the Governor of the Reserve Bank through the Ministry of Finance, who is acting as a conduit for the Bill.

Constituency Work to Improve the Quality and Status of the Life of Women
·  The Committee has completed 4 out of 9 meetings throughout the provinces (one for each province) with magistrates, the police service, NGOs, social workers etc, looking at the implementation of the Maintenance Act and Domestic Violence Act;
·  The Chair requested that the remaining five meetings (Kwazulu-Natal, Gauteng, North-West province, Northern Cape and Free-State) take place during Parliamen’ts break for constituency work.
·  It was also agreed that members should facilitate the establishment of similar Women’s Committee’s at a provincial level – though not where similar structures where already in place.
·  A member of the committee questioned whether the AIDS pandemic would be the national committee’s focus or the provincial committee’s focus. As a response to this the committee agreed that members could make proposals at a provincial level but should first establish what programmes were being run at a provincial level and should try and be part of these first. Priority programmes are those relating to schools, clinics and orphans.
·  Members were requested to report back in the new year on the programmes that are being run in their provinces and how they have taken part in these programmes
·  Members were asked to challenge all MPs to ensure they take the special needs of women into consideration in their programmes e.g. ensuring access to and understanding of legislation.
·  It was agreed that the Committee would send a letter to Telkom supporting the initiative for an AIDS Helpline.
·  A member raised a concern about the proliferation and availability of traditional medicines within communities and that there were traditional medicines that did assist AIDS/HIV infected persons, but those that did not. The committee agreed that members should make a list of all the traditional medicines available/for sale within their communities and that the committee would then request the Medical Research Council to investigate the matter. The Chair also stated that the committee would next year ask the head of the Medical Research Council to come and brief the committee about medicines at a local level.

Research
There were two areas of research raised by the committee:
Government Implementation of the Macroeconomic Budget (Presentation by CASE & JETNET)
·  The Women’s Budget had originally been a collaboration between NGOs and MPs, but now it seems that the Women’s Committee is the key partner for NGOs;
·  Previously the Women’s budget had only been examined at a national level, but it was indicated that it could be considered at a provincial level too. It was highlighted that it was important to keep the budget at a provincial and national level in order to keep it manageable;
·  CASE will do research for the Committee but it will be basic research, this will be fed back to the committee in February and participation will be invited from the NCOP and MPs – but the research will not be able to affect the budget of 2001/2, but will be used to influence the budget for 2002/3;
·  The three priority areas for CASE’s research will be jobs, violence and HIV/AIDS.
·  CASE will also examine the budget from 1995-2000 and see how the Women’s Budget has changed, and also look at what is projected spending for the Women’s Budget within the Medium Term Expenditure Framework.
·  The Committee will ask the Directors General from each department to give the committee information relating to their budgets

CEDAW Optional Protocol (Presentation by Commission on Gender Equality)
·  CGE emphasised that the CEDAW Optional Protocol does not automatically confer rights, it provides only a legal framework and women must mobilise to use the rights;
·  The most important work which CEDAW does is give knowledge of rights to women but it is not being effective. There needs to be an insistence on the domestic application of international women’s rights through enforcement mechanisms i.e. the courts and through culture;
·  Currently CGE has set up a monitoring system with the Women’s Health System, the Commission on Gender Equality and other NGOs. In January there will be a training programme run by Human Rights Watch which has 9 years experience with CEDAW. The purpose of this training programme will be to ensure that there is a common understanding of the Convention and its applications.
·  The role of the Women’s Committee will be to guide the input in this process and highlight which areas need attention.

General
The Commission on Gender Equality circulated a letter to Parliament concerning recent negotiations with traditional leaders. Among other things, CGE highlighted that none of the gender concerns were taken on during local government negotiations and that the President had agreed to an increase of 20% representation of traditional leaders on local councils (from 10%). CGE asserted that this would further prevent the participation of women on local councils. The Committee agreed that it would write a letter in support of the CGE letter.

Appendix 1:

LEGAL OPINION ON THE FIREARMS CONTROL BILL, 2000 AND HOW IT RELATES TO THE DOMESTIC VIOLENCE ACT, 116 OF 1998

Michelle O’Sullivan – Attorney          
Lulama Nongogo – Attorney
Women’s Legal Centre          

1.         DOMESTIC VIOLENCE ACT
1.1       Protection Orders and Offences:
                        The Domestic Violence Act (“DVA”) creates a distinction between an “offence” committed and obtaining Protection Orders.

                        In order to obtain a Protection Order, a Complainant has to show that the Respondent is committing or has committed an act of domestic violence and that she will suffer undue hardship if the Protection Order is not issued immediately.  In other words, a Protection Order is often issued once an act of violence has already been committed.

            The Act does not create a specific offence of domestic violence.  However, when a Court issues a Protection Order, the Court authorises a Warrant of Arrest of the Respondent and suspends the execution of the Warrant or until the Respondent breaches the Protection Order.

                        The Act provides that any person who breaches a condition of a Protection Order, reveals the identity of any party to the proceedings or makes a false statement shall be guilty of an offence and may be imprisoned for a period not exceeding five years.    

                        The Act draws a distinction between an Interim Protection Order and the Final Protection Order.  An Interim Protection Order can be obtained if there is prima facie evidence that an act of domestic violence has been committed.  A Final Protection Order may be issued if the Court finds, after a hearing of written and oral evidence on a balance of probabilities that the Respondent has committed or is committing an act of domestic violence.

1.2       How difficult is it to obtain a Final Protection Order?
                        The DVA provides that in order to obtain a Final Protection Order, a Court has to accept that on a balance of probabilities an act of domestic violence has been committed.  In order to prove that an act of domestic violence has been committed, a Complainant must prove that the actual act occurred and introduce evidence to that effect.  The Respondent has an opportunity to lead evidence and to cross examine the Complainant in regard to her evidence.  Both parties are entitled to legal representation.  It is unlikely that Final Protection Orders will be granted in circumstances where there has not been an act of domestic violence.

1.3       What is required to obtain a conviction in terms of the DVA?
                        In order to obtain a conviction for an offence in terms of the DVA, a Complainant must prove beyond reasonable doubt that the Respondent has breached the conditions in the Protection Order.  Beyond reasonable doubt is the standard of proof used in criminal trials.  This is a high onus for a Complainant to meet. 

1.4       What does the DVA say about firearms?
                        Section 7 of the DVA provides that in granting a Protection Order a Court may impose conditions which it deems reasonably necessary to protect and provide for the safety, health or well being of the Complainant.  This includes an order to seize any arms or dangerous weapons in the possession or under the control of the Respondent.  However, in order to do this the Court must be satisfied on the evidence placed before it, either that:

(i) the Respondent has threatened or expressed the intention to kill or injure himself or herself or any other person in a domestic relationship; or

(ii) possession of such a dangerous weapon is not in the best interest of the Respondent or any other person in a domestic relationship as a result of the Respondent’s:

(a) state of mind or mental condition;

(b) incarnation to violence; or

(c) use of or dependence on intoxicating liquor or drugs.

                        The Act make provision for a firearm to be seized and to be handed over by the South African Police Service for the period for which a Protection Order is in operation.

            The DVA grants a discretion to Court in deciding whether to oppose an additional condition concerning a firearm or a dangerous weapon.  It does not make it mandatory for dangerous weapons and firearms to be seized and to be removed from the Respondent. 

            Because of the nature of violence in domestic relationships and the cycle of violence in these relationships, there is often great economic and other pressure on Complainants to withdraw or vary Protection Orders.  As a result, many Protection Orders are withdrawn by the Complainant and in these circumstances they result in the firearm being returned to the Respondent.

            The DVA does not automatically require Magistrates who are considering applications for Protection Orders to consider whether it is necessary to order the removal of a firearm.

2.  FIREARMS CONTROL BILL
2.1       Competency Certificates awarded in terms of the Firearms Control Bill:
            Section 9(2) of the Bill sets out conditions under which a person may be issued with a Competency Certificate.

            At present a competency certificate may only be refused if a Respondent has been convicted of breaching a Domestic Violence Protection Order, by physical or sexual abuse or been sentenced to a period of imprisonment without a fine for Section 9(2)(h)(ii) and Section 9(2)(l) In the earlier draft of the Bill, Section 9(2)(m) included the condition that the Applicant “has not, in a matter involving a reasonable apprehension of violent behaviour by that person, been the subject of a Final Protection Order issued in terms of the Domestic Violence Act, 1998 (Act No. 116 of 1998), or a similar Restraining Order issued in terms of any other legislation, in or outside South Africa.

            In the final deliberations on the Bill, Section 9(2)(m) was deleted.  The state law adviser’s justification for the late deletion of this Section was that this issue was adequately dealt with in terms of the DVA.  However, the above analysis of the provisions in the DVA dealing with firearms reveal that:

a. removal of a firearm after a Final Protection Order is not mandatory; 

b. the Magistrate has discretion as to whether to consider removing a firearm;

c. the firearm is only removed for the period under which the Protection Order is in operation and may be returned to the owner;

d. the DVA does not make it mandatory to hold an inquiry into the Respondent’s gun licence;

e. it will often require knowledge on the part of the Complainant to bring to the Court’s attention the existence of a firearm in order for it to be removed;

f. unless the offence complained of in relation to the Protection Order involves the use of a firearm, it is unlikely that this issue will canvassed during the Court granting a Protection Order.

2.2       Who is excluded from protection of this Firearms Control Bill by the deletion of Section 9(2)(m)?
            Many women who have obtained Final Protection Orders on the basis of extensive physical or sexual violence, would not be protected by the Firearms Control Bill.  Although they have obtained Final Protection Orders against their partners, their partners may successfully apply for a Competency Certificate because of the deletion of Section 9(2)(m).

PROPOSAL:
Section 9(2)(m):
We propose, that in order to afford protection to women who are victims of domestic violence and to give effect to the right of all persons to be free from violence from both private and public sources, that Section 9(2)(m) is re-inserted in the Firearms Control Bill.  It is suggested that this was a technical amendment proposed by the drafters in the final deliberations on the Bill and that the full implications of the deletions of Section 9(2)(m) were not considered.

Section 103(2):
Section 103(2) provides for circumstances in which a firearm licence may be removed.  It is suggested that Section 103(2) may be used to link the Firearms Control Bill to the Domestic Violence Act.  It is suggested that after a Final Protection Order is granted, a Court must enquire to determine whether the Respondent is unfit to possess a firearm and that Section 103(3) should be amended accordingly.