Domestic Violence Act implementation: 10 year review by Tshwaranang Legal Advocacy Centre & Gender Advocacy Programme; RAPCAN on impact of legislation in preventing violence against children

Women, Youth and Persons with Disabilities

08 September 2009
Chairperson: Ms B Thompson (ANC)
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Meeting Summary

The Tshwaranang Legal Advocacy Centre and Gender Advocacy Programme briefed the Committee on the outcome of their ten-year review of the implementation of the Domestic Violence Act by the judiciary and law enforcement officials. The Committee was reminded that nearly half of all South African women murdered had been killed by their intimate partners. This was the highest rate reported in research internationally to date. In contrast to the seriousness of this problem, was the indifference of law enforcement officials and judicial staff and inadequate resources and funding for the implementation of the Act. An example was the inadequate record keeping at police stations of domestic violence and the failure of the South African Police Service to submit reports to Parliament every 6 months as required by the Act. The last time that SAPS had submitted a report was in 2006

These organisations
proposed to the Committee that there was a need for public hearings to coincide with ten years of the Act’s implementation and that there had to be a plan to go forward in terms of a national strategy for tackling domestic violence. This included addressing under-resourcing, under-prioritisation, under-training, and non-compliance. In the same way that the Act placed obligations on the police, obligations had to be placed on the Health and Social Development Departments so that they too would respond to domestic violence. It was also important to create links between housing and domestic violence.

The Committee agreed to the proposal for public hearings and stressed the importance of ensuring the participation of the victims of domestic violence as well as law enforcement officials and the judiciary.

The Chairperson of the Committee proposed that they had to take a firmer stance in Parliament on the
prioritisation of budget votes by denying support to certain budget votes as a way of applying pressure for an allocation to be made in favour of the gender portfolio.

RAPCAN (Resources Aimed at the Prevention of Child Abuse and Neglect) spoke of the impact of legislation in preventing violence against children and provided guidelines to the Committee in going forward with its work.

Meeting report

Tshwaranang Legal Advocacy Centre (TLAC) & Gender Advocacy Programme (GAP) study
Ms Lisa Vetten, TLAC Researcher and Policy Analyst, explained that Tshwaranang was a non-governmental
organisation with two offices, one in Braamfontein, Gauteng province and the other in Acornhoek, Mpumalanga. It offered a para-legal advice to support women involved in domestic violence, victims of sexual offences, divorce matters, customary marriages and deceased estates. They provided practical assistance and drew from their clients particular problems to research on. Their work could be described as a combination of direct services and research leading to advocacy for policy and legislative reform.

Ms Tumelo Kgosimmele, Campaign Officer at the GAP, briefly introduced the
organisation to the Committee. GAP was an independent non-profit gender advocacy and lobbying NGO based in the Western Cape. The organisation had originated as a grassroots initiative and strived for gender transformation in South Africa by lobbying civil society, political structures and decision makers for a gender-just society that would empower women to gain political, social and economic equality. They conducted research and training in communities and engaged in advocacy and lobbying activities. GAP had recently prioritised strategic activities through the generous and strategic support of the Heinrich Böll Foundation (HBF). As part of these strategic activities GAP would this year host two seminars, one on the Domestic Violence Act and another on the SADC Gender Protocol on Gender and Development.

Ms Vetten presented an overview of the implementation of the Domestic Violence Act over the last ten years. Although the Act had been passed in 1998 it had only come into effect in 1999. The presentation would focus briefly on an overview of the health consequences of domestic violence to serve as a reminder why there was an urgent need to do something about it. The presentation also looked at the various studies that had been done over the past 10 years to give an idea of what was actually happening with the implementation of the Domestic Violence Act. There were at least fourteen studies that had been done during this period that gave a picture through which they could identify common themes and challenges. In addition to that the presentation would look at the practicality of implementation before concluding with recommendations for the way forward in terms of suggestions to Parliament.

Ms Vetten submitted that domestic violence had certain fatal and non-fatal outcomes. In terms of fatal outcomes, studies had shown that nearly
half of all South African women murdered in 1999 had been killed by their intimate partners. The prevalence rate calculated from that suggested that this was the highest rate reported in research internationally to date. It was unfortunate however that the role of domestic violence in women’s suicides in South Africa was unknown.

Some of the non-fatal mental health outcomes of domestic violence which were also very serious included attempted suicide, alcohol and drug abuse, depression, anxiety and eating disorders. Ms Vetten pointed out that the
South Africa Trauma survey conducted in 2006 had included the full spectrum of South Africa's female population and had found that domestic violence was associated with the greatest number of Post Traumatic Stress Disorder (PTSD) cases amongst women and one could see from this the very serious impact that it had on women's mental health. The non-fatal outcomes also included disability, disfigurement, headaches, backaches, and physical injuries ranging from minor to severe. Those women who had ever been physically or sexually abused were significantly more likely to describe their health as poor or very poor. This information was extracted from the World Health Organisation (WHO) international survey on domestic violence which had been carried out in sixteen countries.

Domestic violence also had reproductive and sexual health outcomes and these did not only affect women but also affected their children. Women who were beaten during pregnancy were likely to give birth to low birth weight babies or still-born babies. Unwanted pregnancy, sexually transmitted infections (STI), pelvic inflammatory disease, premature labour and ante partum haemorrhage were other examples of the reproductive and sexual health outcomes of domestic violence.
Women, who had experienced physical or sexual violence, or both, were significantly more likely to report induced abortions and miscarriages than women who had never experienced partner violence. Research conducted in South Africa and Tanzania showed that women with violent or controlling male partners were at increased risk of HIV infection whilst women living in violent relationships experienced obstacles to accessing HIV testing and treatment and difficulties in complying with treatment regimes, leading to an increase in ill-health and, in severe cases, treatment failure.

The Domestic Violence Act was probably the most important intervention by government to try and address the problem of domestic violence. Ms Vetten provided a brief history of how domestic violence had been addressed in South Africa. Prior to 1990, there had been no measures in place to address this problem. The option for women had been either to go the High Court at a very high cost or they had to approach their local Magistrates' Court for a peace order or interdict which really placed domestic violence on a par with dogs that barked too loudly or
neighbours who had parties and made noise all night long. There had been a shift in 1993 with the introduction of the Prevention of Family Violence Act. The importance of this particular Act was that it criminalised rape in marriage. Before that it had not been possible for a husband to be prosecuted for raping his wife.

The Domestic Violence Act had been introduced in 1998 and became operational in 1999. The Act was not the only intervention and there were policies and guidelines that supported it. These included the Policy Framework and Strategy for Shelters for Victims of Domestic Violence in South Africa which had been issued by the Department of Social Development in 2003. The police, including municipal police, also had national instructions on how they should address domestic violence. The municipal police had not been properly studied or investigated in terms of how they tackled domestic violence. Guidelines for the implementation of the Domestic Violence Act had been issued for magistrates in 2008. So this was the policy and implementation framework that existed in terms of domestic violence.

The Committee was also given a sense of what to expect when a victim of domestic violence went to the police for help. In terms of figures that were currently available, there had been
157 391 protection orders granted at 70% of courts nationally in 2004. One could see from this that there was quite an extensive use of the protection order. SAPS had for the first time provided national figures specifically on crimes committed against women in their report for the period 1 April 2007 – 31 March 2008. Unfortunately, though, the relationship of the victim to the perpetrator had not been specified. These figures looked at common assault and assault with intent to cause grievous bodily harm much of which would be domestic violence. Ms Vetten submitted that the reported crimes against women during this period were just the tip of the iceberg. Their own study had collected a total of 942 episodes of abuse for the 18 month period under study from the courts, police and hospital in the area. What was important was that out of that 942 only 63 women (6.7%) pressed charges and became official police statistics. What was also disconcerting was that out of those 942 women only 3 women used all 3 services, that is only 3 women went to hospital after an assault and then reported the matter to the police and obtained a protection order from the courts. There had also been another 12 women who had reported to the police and applied for protection orders. The importance of the study was that it showed that not only were they dealing with the tip of the iceberg in official terms but that they needed to work a lot harder to increase referrals between organisations. Women who had been injured by their partners were not necessarily being referred to the police when they sought treatment or to the courts to be granted protection orders.

Ms Vetten spoke about the provisions of the Act with regard to what the police were expected to do. Although the Act spoke about domestic violence shelters and medical care it did not really talk about this in any great detail and this was one of the weaknesses of the Act that she wanted to highlight to the Committee. The Act focused on the role of the police and the courts in dealing with domestic violence. Their research had been telling them a lot about the police response to domestic violence. The SAPS
National Instruction on Domestic Violence section 7(4) was very clear that police had to keep a record of their assistance to complainants in either the station’s account book, or in individual police officers’ pocket books. According to Section 12 all reported domestic violence incidents had to be recorded in the Domestic Violence Register [SAPS 508 (b)] and not just those incidents for which criminal dockets were opened.

It was unfortunate that not many studies had focused on what the police were doing with regard to domestic violence except for the report made by the Independent Complaints Directorate (ICD) and Tshwaranang’s own study. There were only 19 (15%) of 416 incidents of domestic violence reported at the station that were recorded in the domestic violence register. It was also a concern that for six months the domestic violence register simply had not been kept. When asked what the reasons for that might be, the police had given two answers. Firstly, they responded that they did not know that they had to put that information in the domestic violence register. The other reason was that they thought the non-government organisations were supposed to keep the register. So it was very clear that there was not adequate knowledge of their responsibilities and duties. There were also instances involving the breach of protection orders where police should have arrested the offender or given them a warning to appear in court but they had observed that none of these things had been done.

The issue of inadequate record keeping was a major concern as further highlighted by the failure of the police to make reports available to Parliament every 6 months as required by the Act. The last time that SAPS had submitted a report was in 2006. Ms Vetten gave a detailed analysis of the SAPS responsibilities in terms of the Domestic Violence Act and the actual implementation of these legal provisions by police officials. The presentation also focused on the implementation by the courts of the provisions of the Act related to protection orders and provided various statistics that profiled the use of protection orders by victims of domestic violence in a variety of ways as shown on the presentation document.

Ms Vetten submitted that the major stumbling block towards the successful implementation of the Domestic Violence Act was that there had been no costing that had been undertaken to determine a budget specific to the Act as it had been passed at a time when legislation was not costed beforehand. In a 2000 briefing on its budget to the Portfolio Committee, the Department of Justice and Constitutional Development had stated that the implementation of new legislation such as the Domestic Violence Act had placed “severe pressure” on its offices and that the 2001/02 budget for personnel was less than that required for the number of approved posts meaning therefore that fewer persons could therefore be employed.

Ms Vetten provided a comparison of the budget vote allocation for the Department of Justice (DOJ) with that of Safety and Security and highlighted the fact that in 2000 Safety and Security had received a significantly higher budget than the DOJ to implement firearms legislation. She also highlighted the resource and capacity constraints that the DOJ faced in trying to implement the Domestic Violence Act.

Ms Vetten stated that her organisation's verdict on the Domestic Violence Act was that it sometimes worsened abuse and sometimes prevented abuse. The mere act of applying for a protection order could sometimes be beneficial by increasing women’s sense of agency and control over their lives. However, women faced certain risks in the process of obtaining protection orders. Not only did some abusive partners respond badly to protection orders, but so did family members who were also implicated in pressurising women to discontinue the protection order process.
Ms Vetten also submitted that statistics, facts and figures could never capture the full extent of the human suffering and misery imposed by domestic violence. But they did help them identify where the problems and answers lay. The successfully implementation of the Domestic Violence Act was being curtailed by certain recurring problems such as the absence of a budget for the implementation of Domestic Violence Act, this had been noted in parliamentary debates in 1998 but such a budget was still largely non-existent in 2009. The shortage of trained staff had been noted in 2000 and this was still the case in 2009. Police non-compliance with the Domestic Violence Act had been noted by the ICD in 2000 and they were still noting non-compliance in 2008. There had been 5 pilot family courts established in 1996 and there were still 5 pilot family courts in 2009

Ms Vetten proposed to the Committee that there was a need for public hearings to coincide with ten years of the Domestic Violence Act’s implementation and that there had to be a plan to go forward in terms of a national strategy for tackling domestic violence. This included addressing under-resourcing, under-prioritisation, under-training, and non-compliance. In the same way that the Domestic Violence Act placed obligations on the police, obligations had to be placed on Health and Social Development Departments so that they too would respond to domestic violence. It was also important to create links between housing and domestic violence.
The Chairperson commented that they had to be clear on whether or not the Act was working and not to say that it worked in some instances but did not work in others. If a law was passed then it had to work for everybody. If this was not the case then it became a concern for legislators.

The Chairperson commented that she was concerned about the under funding of family courts and felt that both family courts and family advocates were under-utilised. If the nation's families were built up then this would avoid problems such as crime. Family advocates and family courts were the ones who had to be at the forefront of such matters.

The Chairperson was also concerned why the Act which had been passed in 1998 was not effective and suggested that in future discussions the SAPS and Department of Justice would have to be present so that they could respond to the issues raised by this study.

Ms H Malgas (ANC) commented that she was concerned that courts only considered protection orders in the morning of a specific day of the week. She recommended that that they had to be adequately resourced and expressed her disapproval of the practice of conducting such hearings in open court where there was no privacy for victims of domestic violence and abuse. She was also concerned about reports that there were police officers who failed to react appropriately to situations of domestic violence, some which occurred in their presence but they would choose to do nothing.

Another member commented that domestic violence was a problem which occurred regardless of race, religious or political origin. She recommended quite strongly that the Committee's goal was to ensure that the implementation of the Domestic Violence Act was adequately resourced. It was also important to bear in mind that initially there had not been a Women's Ministry and therefore all the institutions that they had did not have any teeth. This meant that in future the report presented to Parliament would be quite different to the one that they had received today because the new Ministry would be able to account for things.
Mr D Kekana (ANC) thanked the presenter for her briefing. He commented that before they went on to speak more about implementation which was the right thing to do, the one thing that they could have done whilst they were doing their research was to try and establish why this problem occurred. It was important to try and tackle domestic violence by going to the root causes of the problem in terms of the factors which affected the stability of family as a basic and fundamental social unit. If this was not addressed then they were treating the symptom rather than the cause.

Mr Kekana asked how South Africa compared with other countries around the world in terms of dealing with domestic violence so that they could take lessons from those countries who were successfully coping with domestic violence.

Ms Vetten responded that the Domestic Violence Act was well regarded as one of the best examples of legislation on domestic violence internationally. It was a progressive piece of legislation which had influenced other Southern African nations as shown by the incorporation of some of its provisions into the law of Botswana and Zimbabwe.

The Chairperson suggested that the issue of the funding of family courts was one of the questions that they had to pose to the governance and monitoring cluster.

A member thanked the presenter for highlighting certain issues which she submitted were happening in her constituency. She commented that it was clear to the Committee that there was a lot of work that they had to do and they needed to go to a number of departments to ask them to explain what they were doing. She was concerned that reports of domestic violence were not taken seriously by the courts with some women being sent back to their abusive homes without any meaningful assistance by insensitive court staff.

A member commented that she had heard from the police and the DOJ and it seemed that everyone was passing the buck. She was therefore in
favour of public hearings where they could both be present so that they could respond to the concerns that were being raised. Women were dying and women were suffering and it was up to them as a Committee to do something about that.

The Chairperson submitted that even though they were still a new parliamentary committee they could still make satisfactory progress on this legislation and the Children's Act over the five years that they would be in Parliament. She suggested that the victims of domestic violence had to be included as well in the public hearings

Ms D Robinson (DA) commented that she agreed with what the members were saying about the awareness of the problem although people did not always have an awareness of the details of the problem. She was interested in knowing about the sort of training that police officers and magistrates were given. Obviously they were trained in their colleges, but was there any sort of continuous development because once people had been in the job for a while it becomes quite different to when they arrived as recruits. She also commented that women were unaware what their rights were and even if they were aware they were still victims of domestic violence whether they were rich or poor. The way that the clerks and sometimes the magistrates took the side of the men meant that women became victims for the second time. She wanted to know what they could do as a Committee or if this was the role of the NGOs to get out there and set up training courses for women in the rural areas and urban communities because most people did not know what their rights were. If support groups were set up for women, then this could be of benefit.

The Chairperson commented that they also needed to establish who required training other than law enforcement officials, such as the victims themselves because once the victims became aware of their rights then everything would flow.

Ms Robinson (DA) agreed with the Chairperson that the victims needed training. However she knew a woman in her constituency who had been there and was strong and was aware of her rights, but she had been passed around by the clerks and other court staff. So although officials had learnt all these things in their training in the past, it had gone to the back of their minds. It was necessary for them to have refresher courses and this could come with the authority that the Committee would put on this. They would have to pull up their socks. Very often they did not care and very often the courts were understaffed and they also lost heart. The Committee had to help them to gain a bit of encouragement through resources that would help to have more staff available.

The Chairperson commented that there was an issue around the sexual offenders register which the Committee had been told would cost approximately R300 million to compile. From that figure it was unlikely that it would ever happen as there were no resources for the register.

The Chairperson noted that as a Committee they were in agreement on the issue of the public hearings. She suggested that as a Committee perhaps they would need to break a record and not support some of the budgets that were presented to Parliament. She asked why they had to support a budget that was not effective to their scope of work. She did not know whether it had happened before or whether it was allowed but since every year they passed a budget supporting departments, the Committee had to question what they were actually supporting. The current Domestic Violence Act had not been implemented. In future the Committee had to express their feelings about certain budget votes and alert them that if they did not implement certain things then they, as a Committee, would not support their budgets. Otherwise it was a mockery of themselves or their Committee if they supported their budgets but they did not support them back.

Ms H Malgas (ANC) responded that they too would support the Chairperson's proposal and there was a precedent to show that such action was possible in Parliament. They as a Committee had to take part in the budgeting process so that when the MTEF came up and all those processes, they had to be making their input now to those who were starting to compile the budget so that these points could be raised immediately and then if they were not addressed they would know that they had greater legitimacy for objecting.

Ms D Robinson (DA) submitted that she liked the Chairperson's militant approach and added her support. She proposed that the Committee should also be proactive

Presentation by Resources Aimed at the Prevention of Child Abuse and Neglect (RAPCAN)
Ms Samantha Waterhouse, Advocacy Manager at RAPCAN, presented on the impact of legislation and policy in preventing violence against children. She provided an overview of RAPCAN’s origin, history and its mandate in terms of children's rights. She explained that they focused on child victimization and children who were offenders. They worked on a prevention framework to try and determine what could be done by society to shift the patterns that were so entrenched at that point.

The Committee was informed of the services delivered by RAPCAN at a number of courts to children who were witnesses particularly in sexual offence matters but also in other cases where children were witnesses. They assisted thousands of children every year in the Western Cape who were going through the court system. They were also involved at a regional and international level in research and capacity building activities. Their service delivery work had two purposes, to keep them grounded in terms of their research and to provide testing models of the role that NGOs played to find ways of doing things differently so that government could take lessons from that and start implementing these those things. RAPCAN was very committed to what was known as evidence based practice and it was very important to them to put a lot of work into making sure that what they did was going to be something reasonable to meet the needs of children. They tried to avoid knee jerk or common sense responses whereby they saw a problem and thought that this would be a good way to solve that and maybe put a lot of resources into something that did not have much impact. A lot of their work was therefore about testing things on the ground in different social contexts in both urban and rural environments in different provinces across South Africa.

Ms Waterhouse addressed the Committee on the issue of prevention. It was their experience that as a society, prevention was not understood very well. One thought about prevention largely as awareness raising, information giving and in the context of children prevention was often considered to be when people told children about their bodies. What they had found was that this did not really help children very much in relation to adults who were touching their bodies and the child could not say no to that for a range of constructive reasons. Their focus was to try and identify what was going on that enabled these things to happen.

Ms Waterhouse elaborated on the concept of prevention as reflected in the document explain the prevention framework. Ms Waterhouse also expanded on tertiary prevention, that is statutory responses, and tabled recommendations and proposals to the Committee in going forward.

The Chairperson commented that this presentation had been clear and straightforward. She commented that they had an oversight tool as Members of Parliament to monitor and make the Executive accountable. However, there were problems when it came to making officials accountable and there was a need to review how this was done. There was a need for Members of Parliament to be trained on the understanding of the budget itself so that they could always hold the provinces to order in terms of their spending.

Ms Waterhouse commented that she suspected that this was not a question but a comment and said she shuddered to even think how accountability could be achieved. However if one looked at the clauses in the Sexual Offences Act that dealt with accountability, there were some nice systems that dealt with this issue and enabled Parliament to do what it could do at its level and also required a level of accountability in operations. There was something to be said therefore for writing certain mechanisms into legislation. This required policies and directives but even these would not achieve what the Chairperson had suggested.

Ms D Robinson (DA) asked about the facility for women to give evidence in camera. She had recently heard of a case where the woman was completely
traumatised by seeing her rapist in the courtroom and it was a very unfortunate situation. Perhaps they could be provided with more details about that because it seemed that the courts were unaware of this.

Ms Waterhouse responded that section 158 of the Criminal Procedure Act was the provision which allowed for the use of closed circuit television for adult witnesses. There was also case law which argued that it should be less available whilst there was other case law which argued that it should be more available. But generally, prosecutors did not like to make these applications because they extended the period of the trial and they were not very successful. The issue remained however that it was not about the child meeting the needs of the court but about the court meeting the needs of the child. Unfortunately the system as it was now was about the victim meeting the needs of the court.

Ms Waterhouse also responded that they were currently working with the National Department of Education on an initiative to reduce pregnancy in schools by teaching school children about the practicalities of parenting so that they could understand the budgeting involved and how to build relationships. This also looked at gender issues such as HIV and AIDS and safe sex practices. These were interventions directed at children such as fifteen year olds when they were slow dancing at parties to determine what could be done at that point when they felt compelled for whatever reason to engage in sexual activities.

A member asked whether RAPCAN had a relationship with the Department of Education (DOE).

Ms Waterhouse responded that they worked very much with the DOE and one of the key aspects of prevention was that children access good education not in terms of the curriculum but also in terms of the environment in which they learn. Because they learnt in a disrespectful environment where teachers were disrespecting the principal and learners disrespected each other and their teachers then this would create an environment that did not value education. They did a lot of work around capacitating the department at district level to engage with child abuse and work on violence in schools, particularly looking at class room management issues and capacitating teachers and helping them to be empowered by building their skills. Poor leadership in schools was the main issue behind these problems. Where there were good principals in schools, one would find that there was a much better running of the school.

The Chairperson asked RAPCAN to confirm or dispute the fact, according to their research, that there was a link between teenage pregnancy and the child support grant.

Ms Waterhouse responded that there had been research that had been done by another
organisation that clearly showed that there was no link.

Mr D Kekana (ANC) commented that he was happy with the gist of the presentation particularly the fact that they approached societal illnesses not only from the perspective of reacting after things had happened but also to try and address them before the fact.

The meeting was adjourned.

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