Domestic Violence Act Compliance in 2010: Independent Complaints Directorate briefing

Meeting report

Domestic Violence Act compliance: January to December 2010:  Independent Complaints Directorate (ICD) briefing
The Independent Complains Directorate (ICD) tabled and took the Committee through its 2010 Report on compliance with the Domestic Violence Act (DVA). Members were reminded that the South African Police Service (SAPS) had certain obligations placed on them under the DVA. In terms of section 18 of the DVA, failure by a SAPS member to comply with those obligations constituted misconduct. The ICD had a legislative mandate to investigate any complaints levied against SAPS members for their non-compliance with these obligations. The ICD was empowered, by the South African Police Services Act of 1995, to investigate any such matter of police misconduct. After doing so, it would make recommendations to SAPS as to whether disciplinary proceedings should be instituted against the SAPS member.

The ICD outlined the types of non-compliance with the DVA, and the statistical information in respect of each offence. It was reported that the non-compliance fell into the following categories:
-failure to arrest the abuser where an offence of violence had been committed (27 %)
-failure to arrest the alleged transgressor where a warrant had been issued (23 %)
-failure to open a docket and refer the matter to the National Prosecuting Authority for decisions to prosecute (10 %)
-failure to issue a notice against the alleged transgressor to appear in court (10 %).

Other relevant types of non-compliance included failure to refer victims to places of safety, failure to locate the victim and establish whether s/he was safe, failure to advise complainants of their options, failure to assist complainants to open cases, failure to dispatch a police vehicle to a scene of domestic violence, failure to issue or furnish a subpoena, failure to seize a dangerous weapon and/or arms, and failure to serve protection orders.

The ICD was also responsible for conducting DVA audits, processing SAPS applications for exemption from disciplinary action, conducting awareness campaigns and workshops with SAPS members, as well as communities and other stakeholders involved with addressing domestic violence (DV) such as non government organisations (NGOs) and religious leaders.

The ICD had, in the period January to December 2010, received 113 complaints the failure of SAPS members to comply with the DVA. This was slightly less than the 123 cases reported in 2009. However, despite the overall decrease, there had been an increase in the number of cases in certain provinces when compared to 2009, most notably the Western Cape. Western Cape had the most number of cases at 26, Free State had the second largest number, with 20 cases, and Gauteng had the third largest number, with a total of 14 cases. Combined, these three provinces had a percentage of 62% of the overall national total.

The ICD provided further details on the non-compliance. The majority of complaints lodged with the ICD arose from the failure of a SAPS member to arrest the abuser if an offence of violence had been committed, which happened in 27% of the cases reported. In 23% of the cases, officers failed to arrest the alleged transgressor where a warrant had been issued.

For the period January to December 2010, a total of 22 applications for exemption from disciplinary action were received, out of the total of 113 cases.  For the period of January to June 2010, 13 cases were received in the Western Cape, one case was closed as unsubstantiated, and in 12 cases the ICD awaited response from SAPS. In Free State, the ICD awaited response from SAPS in all nine cases reported. In Gauteng, of the nine cases received, one case was closed as unsubstantiated, and two were closed as substantiated, and in six cases the ICD awaited response from SAPS. For the period of July to December 2010, out of the 13 cases received, five cases were pending closure as substantiated, five were under investigation and in three cases the ICD awaited response from SAPS. In Free State, out of the 11 cases received, three cases were closed as unsubstantiated, and one was closed as substantiated, and the ICD awaited response from SAPS in seven cases. In Gauteng, out of the 15 cases received, two cases were closed as unsubstantiated, and one was closed as substantiated, whilst in 12 cases the ICD awaited a response from SAPS.

The ICD presented a list of aspects that would be examined during the ICD audit. These included whether a copy of the DVA, and an updated service provider list, were readily available in Community Service Centres (CSCs) and SAPS vehicles. CSCs were also required to keep a copy of the National Instruction No 7/1999, Domestic Violence Registers and SAPS 508(b) forms. The requirements included the fact that a female police officer should be available at each shift, and this too was examined during the audit, as well as whether a friendly care centre existed in the area. Additionally, audits should determine whether, in cases of non-compliance by SAPS members, disciplinary proceedings were indeed instituted, and, if no steps were taken against SAPS members, whether there had been an application for exemption.

The ICD conducted a total of 309 police station audits nationwide during January to December 2010. In the 177 audits that were conducted between January-June 2010, the ICD found 24 stations were found to be non-compliant, 57 stations were assessed as fairly compliant, 84 stations were on a level of substantially compliant, and 12 stations were fully compliant. Of the 132 police station audits conducted between July to December 2010, 25 stations were found to be non-compliant, 37 were assessed as fairly compliant, 56 were adjudged as substantially compliant, and 14 stations were found to be fully compliant. The key concern was that for the period under review, only 26 of the 309 police stations audited were fully compliant with DVA prescripts.

The ICD provided some proactive oversight findings. Firstly, SAPS had failed in several instances to apply for exemption. There was lack of understanding of the obligations to DVA among SAPS members. There were also shortcomings when it came to record keeping, which included the fact that the section 508(a) forms were not filed properly, section 508(b) registers were not completed properly, a list of service providers was not available or updated, that copies of protection orders and warrants of arrest not filed properly, and no file of domestic violence warrants was kept. A major concern was that copies of the DVA and National Instructions were not readily available at many police stations.

The ICD discussed its efforts to conduct awareness campaigns. From January to December 2010, 290 campaigns were conducted. Most campaigns were conducted in the Western Cape, with 48 campaigns, and the least number were conducted in Gauteng, with 17 campaigns conducted Additionally, the ICD conducted 33 workshops during this time period, with 10 workshops held in each of Eastern Cape and Gauteng, whilst three were conducted in Free State, six in Kwazulu-Natal, two in North West, and two in Western Cape. There were no workshops conducted in Limpopo, Mpumalanga, or Northern Cape.

The ICD shared challenges with the Committee, saying that these were also highlighted in previous reports. The main challenge related to SAPS failing to meet its obligations in terms of the DVA, and here the ICD noted that there had been little improvement from previous years. Other key challenges included the poor submission of applications for exemption, a lack of sufficient training by SAPS on the DVA and National Instructions, poor record keeping, poor attitude and commitment of SAPS members towards victims of domestic violence, and a general lack of compliance with regard to the DVA.

Discussion
A Member of another Portfolio Committee noted that he was not entirely happy with the ICD’s explanation of ‘unsubstantiated’ cases and said there was a need to clarify this. He noted that there was a culture of silence around domestic violence, and the attitude of the police officials often discouraged people from reporting incidents. When people did come forward to report, they, especially the women, were often ridiculed or asked embarrassing questions by the officers, which increased their reluctance to report the matters. If a man was beaten by a woman, he felt too embarrassed to admit this and report the incident. One of the biggest challenges facing this Committee, and indeed South Africa, was the attitude of the police towards the DVA, and this was not a matter for the ICD to confront alone. Each and every police station was supposed to have National Instructions, but this was not happening at most of the stations, which was illustrative of their attitude.

A Member said that although the ICD was responsible for the auditing of the DVA compliance, there were many issues that had been highlighted also by other non-government organisations (NGOs) who reported to Committees. She would have expected the ICD also to refer to these.

The Member noted that the legislative mandate noted that the ICD must “forthwith” be informed of any such failure reported to the SAPS. She asked if an ordinary citizen could report a case to ICD, and if so, asked if there were any awareness programmes to explain this obligation or opportunity to the people. It was quite possible that communities were not aware of the obligation to report to ICD.

Ms M Nxumalo (ANC) said that the ICD had not spoken about domestic violence itself, noting that this was endemic amongst police officers themselves, so there was a problem with making reports on domestic violence to an officer who was himself an abuser. It may well be that police faced traumas or pressures from work that led to this, but it was a reality. She asked if ICD was doing anything to ensure that counseling was available for the families, and stressed that the number of deaths through domestic violence was very high. She asked if there was a database of those who abused their spouses.

Ms Nxumalo was also concerned about the links between SAPS and the prosecuting authorities, noting that recently a man in KwaZulu Natal had killed an old woman, but was let out on bail, which led the community to lay blame on SAPS, although the decision to grant bail was actually made by the Department of Justice. There was little understanding of the issues by the community and there were rumours that the police had been bribed. She wondered if the ICD could address communities about such issues, to better their understanding that bail had nothing to do with SAPS. She also asked if the ICD could run workshops explaining the difference between the work of the different departments.

Ms D Robinson (DA) felt that it was vital for this Committee to follow up on the issues raised earlier, on the culture of silence, which she agreed was a major problem in South Africa. There was also a problem with police officers who felt unable to tell their superiors that they felt vulnerable or were at breaking point themselves, and said that she had been informed that a request for counseling effectively put paid to further promotions. She was not sure who had responsibility for this, but felt that there should be provision, perhaps by some kind of routine protocol or questionnaire, where people could indicate any difficulties in coping. The justice system was failing people and bail was given too easily. She had seen this repeatedly in Atlantis, where there were protests and a strong women’s group who communicated with the prosecutor, because it had been found that those released on bail simply proceeded to commit more crimes.

Ms Robinson noted that the figures on sexual assaults had not been disaggregated from figures on assaults. She asked about people with disabilities, who were even more vulnerable, but who might be criticized by the police as being drunk, or not “right in the head” and this was not only hugely hurtful, but was contrary to the Constitution, which demanded respect for all.

Ms Robinson noted that she had written to the Chairperson some weeks ago, asking that the Minister of Police, Hon Nathi Mthethwa, should be invited to this meeting, so that Members could direct questions to him, because one major criticism voiced continuously was that SAPS management needed to address the issues and challenges, rather than the ICD. She noted that the Committee and Parliament should hold the Executive accountable, and the Minister needed to appear before the Committee to address the problems in the system, which were failing the people of the country.

Mr Francois Beukman, Executive Director, ICD, said that the Ministry of Police and Parliament had taken the initiatives to reconfigure the legislation and institutions dealing with the DVA. He noted that the issues raised today had been serious challenges over the last fifteen or twenty years. Already in 2005, the Committee had made recommendations to Parliament that there must be discussions around whether the DVA function should continue to reside with ICD, because the core function of the ICD was investigating the crimes committed by police officials.

He pointed out that two new pieces of legislation had recently been approved: one dealing with the Civilian Secretariat of Police (the Secretariat) and the other dealing with the Independent Police Investigative Directorate (IPID). The Civilian Secretariat of Police had been upgraded and strengthened, and in the future would take over this function. The Secretariat had a committed and capable leadership, and the functions around the DVA would be moved away from ICD, to the Secretariat, which may address the problem of accountability of police management. Parliament and the Minister had taken pro-active steps in this regard. There was currently a task team, comprising the Secretariat and ICD, which was facilitating the transfer of these functions, and all the respective files, to ensure that this matter was dealt with effectively.

Mr Beukman noted that some of the challenges that were identified in the presentation were applicable to 2010/2011, but there were promising indications for the future. He suggested to the Chairperson that the Committee should consider inviting the Secretariat to brief the Committee on the steps it would be taking to ensure that domestic violence was dealt with effectively, and there was accountability.

Mr Beukman responded to the concerns on killing of female spouses, or femicide, saying that Ms Mbuli of the ICD had done some academic studies into femicide, which was a major issue of concern for ICD, and outline the recommendations into proactively addressing it.

Ms Noluthando Mbuli, Programme Manager, ICD, said that in 2007, ICD had noted the high rate of femicide committed by SAPS officials themselves, and had commissioned research on the subject. Although SAPS had its own employee assistance services, the research showed that police officers did not trust this service, possibly because of its nature. Many of the police officials were still men, and retained the perceptions that men should not cry, and they were unwilling to use the service, feeling that this would be an affront to their masculinity. Various recommendations were made as a result of this research, and were forwarded to SAPS management, but it was unknown whether these recommendations were implemented. She concluded and thanked the Chair.

Mr Beukman said that although the granting of bail was primarily a matter for which the Department of Justice was responsible, ICD would, in those cases where police officials were arrested for a serious crime, oppose bail on principle and its investigators would make statements to the Court in this regard.  

Another ICD official discussed the awareness campaigns that ICD conducted, and directed their attention to the slides that set out these campaigns and gave a provincial breakdown. He also indicated that on 26 May 2010 the ICD had briefed the community at a shopping mall on the ICD mandate and the DVA. Between January and December 2010, the ICD had conducted 290 awareness campaigns across the country, and he said that the reports set out in some detail what those campaigns had covered. In some, workshops targeted counselors and traditional leaders, some were targeted towards members of SAPS or community police forums, and others to the metro police or other stakeholders who dealt with domestic violence, such as NGOs. The ICD awareness campaigns were quite extensive, and those areas covered by the campaigns represented an ongoing engagement, although there was always room for improvement.

Ms Noluthando Mbuli, Programme Manager, Independent Complaints Directorate added, in relation to the community awareness programmes, that community radio stations also broadcast the ICD mandate, in African languages. In this year, the ICD had targeted doing 265 community outreach activities, and had achieved 290

He addressed the question of unsubstantiated evidence, noting that if the ICD received a complaint about a police official, the ICD must investigate it to assess if there was indeed non-compliance with the DVA by that official. If so, ICD would recommend that SAPS must take disciplinary steps against the police official, or apply for exemption from doing so. Often, SAPS would say, when applying for exemption, that it did not want to take action because the police official had in fact done his job. For instance, the police official might have gone out to serve a protection order, but be unable to locate the alleged assaulter, because he had fled. Here, although the complainant had said that the order was not served, a record could have been kept that in fact there were attempts to serve the order, and this would be proof that the police had taken the necessary steps under the DVA. However, if it was clear that the police official had not tried to serve the protection order, then the complaint would be regarded as substantiated,  and SAPS would be asked to take disciplinary action against that member.

He added that another example might be that SAPS officials were expected to refer a complainant to a safe place of shelter, but if, in that area, there were no places of shelter, the failure by the police to make such a referral was a fault not of their making, and a complaint of non-referral would also be regarded as unsubstantiated.

He noted that the majority of complaints that the ICD received were in fact substantiated, which required some degree of disciplinary action to be taken against the police official involved. In terms of Section 18 of the DVA, the National Commissioner of Police must answer to Parliament on the recommendations that the ICD had made.

The ICD explained that ordinary people could indeed report instances of non-compliance to the ICD. SAPS must, as part of its compliance to the DVA, also send reports to the ICD of the number of complaints laid to SAPS against its own officials in relation to non-compliance with SAPS’ obligations under this Act, and must indicate the steps taken against those members. ICD received a few of the non-compliance complaints from SAPS members, but most of the complaints were lodged by ordinary citizens who came personally to the ICD offices, or were handed through to the ICD from NGOs, on behalf of victims.

It was emphasised by ICD that the joint committee between ICD and the Secretariat had been functioning since the earlier part of this year, to discuss how the transition of these complaints from ICD to the Secretariat could be put into effect without negatively impacting on service delivery and on the complainants who had lodged complaints to the ICD. This committee had met at various occasions at the national level, and had also held meetings with SAPS.

Some of the recommendations and responses that were still outstanding, reported on earlier in the presentation, were at provincial level and were being followed up by the ICD provincial offices and their counterparts in SAPS Provincial Commissioner Offices, who were also dealing with the recommendations on service delivery complaints. SAPS was engaging on all outstanding complaints that the ICD was handling and there should be a smooth transition of cases to the Secretariat.

ICD confirmed that there were some gaps in the DBA. However, it was hoped that with the transfer of responsibilities to the Secretariat, those issues could be attended to more effectively. The mandate of the Secretariat included giving directions to the Minister on policy. There was research being done into the issues, because it was necessary to evaluate how the ICD had been operating, and also to identify the gaps in the DVA and how it was applied by SAPS, in order to assess how, in future, the DVA could be addressed effectively and achieve the desired outcomes, as well as to address the complaints.

There was acknowledgment that some areas were not currently reached in the ICD awareness campaigns, but much of this was explained by the challenges that the ICD faced because of its mandate, which stated that ICD was not only to deal with DVA matters, but also was to investigate other crimes, alleged murders, criminal investigations and other misconduct, resulting in the ICD being overstretched. It was trying to do outreach and complete all station audits, but had limited capacity to achieve this.

Mr Beukman noted that in future the ICD (which would transform into IPID) would be obliged to investigate all rapes committed by police members or those in police custody, as well as torture, so effectively the major mandate in respect of vulnerable groups would continue, and a report would be submitted to Parliament twice a year, with details. It would remain the core business of the IPID to ensure that the needs of the vulnerable were looked into.

The Chairperson agreed with other Members that women’s and children’s issues particularly rape, must be pursued with vigour. This Committee was concerned about the limitations in the ICD mandate, and some of the issues that had been discussed would be raised with SAPS. She appreciated the fact that the Secretariat would be able to expand on what ICD had been doing. She noted that many cases of domestic violence or non-compliance probably were not reported, and hoped that by engaging with the Minister and Department of Police (which she assured Ms Robinson would be done) would address some of the issues.  

The meeting was adjourned.