Domestic Violence Act: Independent Complaints Directorate reports for 2009

Women in The Presidency

16 November 2010
Chairperson: Ms D Ramodibe (ANC)
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Meeting Summary

The Independent Complaints Directorate (ICD) briefed the Portfolio Committee on compliance with the Domestic Violence Act (DVA) for the period January 2009 to December 2009. The South African Police Service (SAPS) had obligations placed on it by the DVA. ICD then had a legislative mandate to investigate any complaints that the SAPS had not properly complied with these obligations, and should make recommendations back to SAPS as to what disciplinary steps might be appropriate. Non-compliance could include failure to advise complainants of their options, failure to assist complainants to open cases, failure to refer victims to places of safety, and failure to serve protection orders. Between January and December 2009 it had received 123 complaints, nationally, about the failure of SAPS members to comply with the DVA, with most being based in Gauteng, followed by Western Cape. The majority of complaints lodged with the ICD arose from the failure of SAPS to arrest the abuser, where an offence of violence had been committed (32% of cases reported), or failure of a SAPS officer to arrest the alleged transgressor on receipt of the warrant issued by court and an affidavit that the Protection Order had been violated (18% of cases reported). The numbers of applications for exemption from disciplinary action were outlined, together with the results. The ICD also conducted DVA audits to try to assess compliance, in addition to investigating complaints, and the typical subjects examined during that audit were outlined. 280 audits had been conducted, out of 1 116 police stations, from January to June by ICD, and a further 242 were conducted from July to December. In the first audit, 50 stations were non-compliant, 95 were fairly compliant, 104 stations were substantially compliant, and 31 were fully compliant. The second audit revealed that 30 stations were non-compliant, 96 were fairly compliant, 96 were substantially compliant, and 20 were fully compliant. Findings of the ICD included a failure to apply for exemption, lack of understanding of the obligations imposed by the DVA, lack of feedback from police management regarding disciplinary action, and a reluctance by SAPS to take disciplinary action. Record keeping was still a concern. In many stations, copies of the DVA and National Regulations were not available, as required. Challenges included the SAPS’s failure to take disciplinary action, failure to notify the ICD of non-compliance, lack of understanding of the Act, a culture of silence around domestic violence, and lengthy periods taken to discipline SAPS members.

Members of the Committee asked why so many SAPS officials appeared to be ignorant of the Act, as this should have been covered in their training, enquired when the pending cases would be concluded, and noted that South Africa was not doing particularly well in implementing this Act properly. Members asked what criteria were used to determine whether a case should be closed, and suggested that the station audits must be fast-tracked, and enquired about awareness campaigns. Members also enquired how the ICD planned to undertake the remaining audits. They were concerned that only the SAPS was able to discipline police members, pointing out that they would often be reluctant to discipline their own, and what disciplinary measures were used. Members asked whether the Victim’s Charter was made available, thought that lack of funding might account for the difficulties, and enquired about employment of people with disabilities, noting the staff shortages within the ICD at present. Further details were requested on the monitoring. Members noted the impact of the new Independent Police Investigate Directorate (IPID) Bill.


Meeting report

Domestic Violence Act (DVA) - Independent Complaints Directorate (ICD) Reports : January to December 2009
Mr Francois Beukman, Executive Director, Independent Complaints Directorate, presented the 2009 report of the Directorate (ICD or the Directorate) on compliance with the Domestic Violence Act (DVA) in that year. He outlined that the South African Police Service (SAPS) had obligations placed on it by the DVA. ICD had a legislative mandate to investigate any complaints that the SAPS had not properly complied with these obligations. Any failure by a SAPS member to comply with those obligations constituted misconduct under the South African Police Service Act (the SAPS Act). ICD would, after investigating the matters, make recommendations to SAPS as to whether disciplinary proceedings should be instituted against the SAPS member.

Ms Noluthando Mbuli, Programme Manager, Independent Complaints Directorate, outlined the types of non-compliance with the DVA that the ICD addressed in its report. These included failure to effect warrants of arrest, failure to advise complainants of their options, failure to assist complainants to open cases, failure to refer victims to places of safety, and failure to serve protection orders.

Ms Mbuli then explained that the ICD conducted DVA audits, as well as awareness campaigns and workshops with SAPS members, to educate them about what the DVA entailed.

The ICD had, in the period January to December 2009, received 123 complaints, nationally, about the failure of SAPS members to comply with the DVA. Gauteng had the most number of cases, at 39, and the Western Cape had the second largest number, with a total of 26 cases. Combined, these two provinces had a percentage of 53% of the overall national total. Ms Mbuli emphasised that Kwazulu Natal (KZN) and the North West Province had the biggest deductions in statistics, with each province declining between 70% and 83% of complaints.

Ms Mbuli then gave further details on the non compliance. The majority of complaints lodged with the ICD arose from the failure of SAPS to arrest the abuser, where an offence of violence had been committed. This happened in 32% of cases reported. In 18% of cases, officers failed to arrest the alleged transgressor on receipt of the warrant issued by court and an affidavit that the Protection Order had been violated.

For the period January to December 2009, a total of 27 applications for exemption from disciplinary action were received, out of a total of 123 cases. Ms Mbuli highlighted that for Gauteng, out of 39 cases received, there were seven applications for exemption, 11 cases were closed as unsubstantiated, and one case was pending closure as unsubstantiated and the members involved were given written warnings. For the Western Cape, out of 26 cases received, there were five applications for exemption from internal prosecution, two case exemptions were granted, and three cases were closed as unsubstantiated, and in one matter the person was disciplined and transferred. The Free State, out of 20 cases received, had ten applications for exemption granted, and these cases were closed as unsubstantiated, and one case was closed as withdrawn. The other provinces had minimal cases reported. KZN, the Eastern Cape and Mpumalanga had no applications for exemption.

Ms Mbuli presented a list of aspects looked at during the ICD audit. These included whether a copy of the DVA, and an updated service provider list, was readily available in Community Service Centres (CSCs). Other documents required in CSCs were a copy of the National Instruction No 7/1999, Domestic Violence Registers and SAPS 508(b) forms. She also stressed that the audit examined whether, as required, a female police member was available on each shift, as well as whether a friendly care centre was in existence in the area.

Ms Mbuli noted that out of a total of 1 116 stations nationwide, the ICD conducted 280 police station audits between January and June 2009, and found that 50 stations were adjudged non-compliant, 95 stations were assessed as fairly compliant, 104 stations were on a level of substantially compliant, and 31 stations were fully compliant. The ICD conducted 242 police stations audits during July and December 2009 and found that 30 stations were non-compliant, 96 were adjudged fairly compliant, 96 stations were assessed as substantially compliant, and 20 stations were fully compliant.

Ms Mbuli outlined some proactive oversight findings. These included that there was a failure to have applied for exemption, a lack of understanding of the obligations in DVA, there was no feedback from police management regarding disciplinary action, and a reluctance by SAPS to take disciplinary action. Record keeping was still a concern, as the Section 508(a) and 508(b) forms and registers were not completed and filed correctly. One major concern was that copies of the Domestic Violence Act and National Instruction were not available at many police stations.

Ms Mbuli shared some challenges with the committee. These included SAPS’s failure to take disciplinary action against members, failure by SAPS to notify the ICD of non-compliance, a lack of understanding of the DVA by SAPS members, the continuing existence of a culture of silence around domestic violence, and lengthy periods taken to discipline SAPS members.

Discussion
The Chairperson commented that it was useful for the ICD to engage with SAPS members, as police often did not understand fully how the DVA worked, despite the fact that they were supposed to be trained in this aspect. She wanted to know which particular areas were being referred to, in respect of the failures to apply for exemption.

Mr Moses Dlamini, National Spokesperson, ICD, commented that training was given to police officials but that some members of SAPS still maintained that they did not receive training on this Act. He agreed that this was surprising.

Ms Mbuli pointed out that all particular areas covered were mentioned in the report.

Ms P Lebenya (IFP) highlighted that several investigations were pending and that the ICD was still awaiting the outcome. She wanted to know by when the pending cases would be concluded.

Mr Dlamini agreed that the pending cases were of concern, but that the ICD was concerned to fast-track these cases. He explained the process involved. He stressed that when a compliant was received by SAPS, SAPS must look at the validity of that complaint, and thereafter submit documents to the ICD. The ICD would then consider the case and grant exemption if applied for. This process, in itself, did take a while. 

Ms G Tseke (ANC) commented that South Africa was not doing well with the implementation of the DVA. She questioned whether South Africa could thus be said to be moving forward. She asked what criteria were being used to make decisions that a case should be closed or unsubstantiated.

Mr Thabo Lehole, Provincial Head: Western Cape, ICD, responded that there were safeguards in place to prevent cases from simply being closed. He explained that after a case had been investigated and before it could be closed, a notification was sent to the complainant stating that the case would be closed. The complainant was then given an opportunity to respond and make further submissions in support of continuing that case. Sometimes the complainant would be satisfied with the way in which the matter had been attended to. In these cases, the case could be closed, if the investigations had failed to disclose any other evidence.

Ms G Tseke suggested that station audits needed to be fast-tracked. She noted that people were not reporting cases to the ICD because they did not have enough information on the DVA. She wanted to know whether there were any awareness campaigns in place to educate the public.

Ms Mbuli responded that awareness campaigns were under way, in conjunction with the Department of Social Development.

Ms P Duncan (DA) wanted to know what process was in place for audits to happen at other police stations.

Mr Beukman responded that, owing to the staff shortage that the ICD currently was experiencing, there was only one monitor per province to do audits. The ICD was planning to appoint more monitors in future, to enable it to audit all stations.

Ms D Robinson (DA) commented that there was a serious concern regarding these statistics. She reminded Members of the ongoing “16 Days of Activism against violence against women and children”.  She wanted to know whether there would be another oversight arm, besides SAPS, to discipline police members found guilty of misconduct. She pointed out that in general people would not want to take action against their own colleagues. She also wanted to know what disciplinary measures were currently available.

Mr Beukman answered that it was difficult for ICD to prescribe disciplinary measures, as the ICD could not discipline the police. SAPS itself must take the necessary steps to discipline the officials. He added, however, that in regard to oversight, the new Independent Police Investigative Directorate (IPID) would, in terms of the Independent Police Investigative Directorate Bill (IPID Bill), be the new oversight body. With effect from March 2011, the ICD would no longer be responsible for this matter.

Ms N Madlala (ANC) thanked the ICD for its presentation, but questioned whether the ICD was sure about the case figure of 39 in Gauteng.

Ms Mbuli responded that this figure was accurate, as 39 cases were registered in offices.

The Chairperson wanted to know whether the 51 stations that were found fully compliant referred to the national figure of overall stations.

Ms Mbuli responded that this figure did refer to the national figure of overall stations in the country.

Ms Robinson wanted to know whether the Victim’s Charter was made available in police station

Ms Mbuli answered that a copy of the Victim’s Charter should be available in all police stations, but this was not the case, as discovered during the audit. Only very few stations had this document in the station.

Ms Duncan commented that the DVA was not funded, and that might be the reason why there were so many difficulties. She noted that the presentation was good and the report answered a lot of questions. She commented that the ICD had no power to do anything about the failure of the SAPS to comply.

Ms Robinson wanted to know whether access was being granted to people with disabilities, especially deaf people, as this was an important need in the country. She wanted to know whether there were deaf personnel available.

Ms Mbuli responded that the ICD had not done much yet in regard to people with disabilities. She agreed that this was an ongoing challenge, but said that once vacancies for deaf people became available, they would be incorporated into the programme, to assist with deaf complainants.

The Chairperson commented on the failure to ensure that a copy of the DVA and National Instruction was available in police stations. She highlighted that people in rural areas were not aware of their rights, and this was not fair. She asked how the ICD was planning to address the staff shortages.

Ms Mbuli responded that, for the next financial year, the ICD was looking at addressing this staff need. The shortage of staff was one reason why the ICD could not reach all police stations to do their audit. The ICD agreed that it needed to reach rural areas in order to become a more effective oversight body.

Ms Madlala asked if, after giving recommendations with regard to disciplinary actions, the ICD had any procedures to follow-up and monitor.

Ms Mbuli answered that there were follow-ups done with Station Commanders, who were asked to report on what disciplinary measures were taken. Reports were sent to ICD on a regular basis. According to the legislative mandate, the National Commissioner of the SAPS must, every six months, submit a report to Parliament on what steps had been taken as a result of recommendations made by the ICD.

The meeting was adjourned.

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