Protection from Harassment Bill, Military Veterans Bill: Departmental briefings

NCOP Security and Justice

17 October 2011
Chairperson: Mr T Mofokeng (Free State, ANC)
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Meeting Summary

The Department of Justice and Constitutional Development presented and explained the Protection from Harassment Bill, pointing out that a person would not need to have legal representation, that the Clerk of the Court would assist, and interim orders were available. The Bill covered the actions and powers of the courts, and the Department’s representatives went through the most important clauses. Members enquired if this Bill offered procedures similar to those in other legislation, such as the Children’s Act or Domestic Violence Act, and were informed that it did, and for this reason there should be no problem with implementation as the necessary structures were already in place, and the same kind of training would be followed. They asked which courts would attend to matters, and what type of conduct could be covered. A Member suggested that the bill be adopted, pointing out that an extensive public consultation process had been followed.

The Department of Military Veterans presented the Military Veterans Bill, pointing out that this too had been through a public hearing process, and some of the comments raised had been incorporated into the version of the Bill that was now before the Committee. The fundamental provisions were set out, and it was indicated that clauses 4 to 8 were at the heart of the Bill. A Military Veterans Association was formed, whose functions were set out, as well as a Military Veterans Advisory Council. An appeal board was also established.

Members asked about the definition of a military veteran and were concerned that certain people might be excluded. In particular, they asked if this Bill would cover those who were imprisoned by the apartheid regime, although they were not enrolled in a military organisation, and were informed that the Department had no jurisdiction over them, but that the Special Pensions provisions could apply. Members were also concerned that the database at the Department must be up to date, and offered to assist in verification if they could. On the other side of the coin, Members cautioned that the Department must be mindful that fraudulent claims would no doubt also be lodged, and the Department described the steps it already had in place to verify claims. Members agreed to recommend the adoption of the Bill.

Meeting report

Protection from Harassment Bill: Department of Justice and Constitutional Development briefing
Mr Sarel Robbertse, Senior State Law Advisor, Department of Justice and Constitutional Development (DOJ&CD) gave a short summary of the Protection from Harassment Bill. He stated that a person did not need legal representative to apply to court for an interim protection order against harassment and either the complainant or a third party could make application. The Clerk of the Court had the obligation to assist a person making application.

An interim protection order could be made available and the respondent could be taken into custody.

Clause 6 set out the guidelines and noted that information must be gathered. Clause 7 contained the information regarding the subpoena of witnesses to court. Clause 8 made provision for hearings in camera when this was in the interests of justice. When a court determined the hearing date it had to look at certain factors that were stated in clause 9. The court was given certain powers in respect of the protection order, to ensure that the complainant was not harassed further. The protection order had to be served, and it had a specific time period attached.

Discussion
Mr L Nzimande (KwaZulu-Natal, ANC) wanted clarity as to which courts would have jurisdiction. He asked how, practically speaking, complaints would be laid, and pointed out that the former “peace orders” seemed to be similar. He also asked if there were parallels between this Bill and the Children’s Act, and if the definition of ‘harassment’ would cover those who bullied children. He also enquired what arrangements were made within the Justice Cluster to implement the Bill.

Mr Lawrence Bassett, Chief Director: Legislation, DOJ&CD explained that in relation to the implementation and training, the Harassment bill was similar to other Acts already in force. He also explained that the interim order was similar to that under the Domestic Violence Act. If the harassment was done through electronic means, the court had to ask for the evidence, and a service provider, or the complainant would have to provide the necessary documentation. The police would also grant assistance. A court could use Section 314 of the Criminal Procedure Act as a remedy for peace keeping.

Ms Dellene Clark, State Law Advisor, South African Law Reform Commission, stated that some of the procedures already used in sexual offences cases would apply also in the harassment cases. A similar remedy would apply to electronic communications.

Mr Robbertse explained that clause 14 of the Bill made provision for the court’s jurisdiction. The Clerk of the Court had to receive an application for the interim protection order and, after this was captured, it would be sent to the magistrate who had to consider the application and, if an interim protection order was made, then a date had to be set for both parties to state their cases, to confirm the matter. He also explained that implementation should not be problematic as the necessary procedures were already in place.

Mr Robbertse also informed the Committee that the definition of harassment was quite broad, and a wide variety of conduct could be regarded as harassment.

Mr Bassett added that the definition of unreasonableness was coupled with noise and nuisance.

Mr D Bloem (Free State, COPE) said that he saw no problems with the Bill. There appeared to have been an extensive consultation process followed. He recommended that the Bill be adopted.

Military Veterans Bill: Department of Military Veterans briefing
Mr Tshepe Motumi, Director General, Department Military Veterans (DMV) gave a short summary of the Military Veterans Bill, which was adopted by the Portfolio Committee on Defence and Military Veterans in August 2011. He noted that this Bill had emanated from the recommendations of a task team in 2009.

He said that clause 4 of the Bill noted that the President would be the Patron in Chief of the Military Veterans Association and the heart of the Bill was contained in clauses 5 to 8. Clause 9 spelled out the functions of the Association. Clauses 10 to 18 dealt with the establishment of the Military Veterans Advisory Council, as well as the functions, whilst the establishment of the Appeal Board, and its function, were set out in clause 19.

Mr Motumi highlighted the matters raised during the public hearings, which had included the definitions, and the dishonourable discharge provisions.

Discussion
The Chairperson wanted clarity as to whether the definition of the bill included people who fought in the World War II. He also wanted to know how DMV had traced those soldiers from the World War.

Mr Motumi confirmed  that the bill included the military veterans from the First and Second World War, as well as Korean War. He explained that the Department had a database that was continually being updated and that DMV would communicate with all the provinces to get names of people, and underwent a continuous verification process on all names submitted.

Mr J Gunda (Northern Cape, ID) asked whether families would be able to lodge claims, if they could prove that their family members had fought in the military, even under the apartheid regime.

Mr Motumi explained that those who were discharged or deceased could be represented by the members of their families or third parties, as was stated in clause 5 of the Bill.

The Chairperson wanted to know how DMV was going to deal with cases where other family members might not know about discharge, and who would bear the onus of proof.

Mr L Nzimande (KwaZulu-Natal, ANC) asked what might happen in the case of someone who had served for a number of years, but had then committed some error that led to his or her discharge. He asked if there was a means test linked to the Bill.

Ms Mabel Rantla, Deputy Director General, Department of Military Veterans, stated that people who had been discharged would be helped by DVM through the process of appeal.

Mr Motumi said that the Military Veterans Appeal Board would have the power to deal with the dishonourable discharge. He informed the Committee that DMV had presentations on military veterans who were dishonourably discharged during the apartheid regime.

Mr D Bloem (Free State, COPE) wanted to know if the Khoisan Military Group were included in the Bill.

Mr A Matila (Gauteng, ANC) wanted clarity as to whether the Bill did not exclude people who could not be properly represented, pointing out that there seemed to be a number who were not taken into consideration.

Mr Motumi stated that all military veterans were included in the Bill.

Mr B Nesi (Eastern Cape, ANC) wanted clarity as to what the Department of Military Veterans was and how it operated. He asked who would represent military veterans who had been “chased away” from the military.

Mr Motumi explained that DMV was a State Department, and that, for political reasons, the Department of Defence and Department of Military Veterans fell under one Ministry.

Mr Nzimande asked if there were offences that were listed in the Bill.

Mr Nesi was concerned about the Bill’s effect on the poor, believing that they might be disadvantaged by its provisions.

Mr Nesi asked what the spouse of a military veteran may have to do, if she had never been told by her husband about the fact that he was discharged.

Mr Bloem said that verification of a military veteran was going to be difficult. He recalled that a huge number of people had come to claim under other arrangements, including those who had never served in the military.

Mr Motumi explained that DMV was using the personal registry that was submitted in 1999 by the various military groups. DMV also had used the records in the archives, especially those pertaining to the World War I and II and Korean War soldiers. He further explained that whenever the DMV were given details of people these had to be shown in the database. He stated that there were a number of people who had not been integrated initially, although now members of APLA, MK and AZAPO were included, but DMV was cleaning and updating their system.

Mr Matila wanted clarity as to how DMV was going to deal with the people that were killed on their way out, or those who had operated underground just before 1994, as well as those who, although not members of any military organisation, had been imprisoned under the apartheid regime. He wondered if the Bill went far enough to cover the dispensation of returned World War II soldiers.

Mr Motumi said that DMV was dealing with the problem, including that of  missing people, and said that people who claimed would have to give the names of their commanders. DMV also recognised people that had given evidence to the Truth and Reconciliation Commission.

Ms Rantla informed the Committee that non-South African widows of South African veterans were being helped by the Department.

Mr Nesi believed that high rates of unemployment led to corruption, and asked how the Committee could play a role in assisting with the register. He asked where people would register.

Mr Motumi agreed that there had been some problems with lack of knowledge in the past and noted that the Committee could direct any queries to the Department, In previous cases, on receipt of information, the DMV had been able to visit the person concerned and ensure that he receive his pension.

Ms Rantla added that DVM had an investigation to correct the situation where some military veterans had not received the medals due to them.

Mr Motumi added that people with disabilities from the defence forces, who were not represented previously, had now established forums but the Department had not yet met with them.

Mr Bloem wanted clarity as to whether the definition included people that underwent three months training after 1993.

Mr Motumi said that they were recognised under this Bill.

Mr Bloem thought that this was not correct and that those who underwent “crash courses” of three months should not be included, as he warned that this would be very costly.

Mr Nesi agreed with Mr Bloem that Members of Parliament could assist on verification.

Mr Matile stated that there were about 67 people who were under house arrest from 1960s onwards, some of whom were not registered with any military force, and asked how DMV dealt with them.

Mr Motumi stated that it was not the mandate of the Bill to deal with cases like these, but there was provision made for special pensions.

Mr Matile suggested that the Military Veterans Bill be adopted.

Mr Bloem stated that he would not have a problem with doing so, but cautioned that there were some loopholes around definitions and verification procedures, and said that the Committee should not afterwards complain that it was unaware of them.

Members agreed to recommend the adoption of the Bill.

The meeting was adjourned.

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