Gender-Based Violence Bills: public hearings day 3

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Justice and Correctional Services

22 October 2020
Chairperson: Mr J Magwanishe (ANC)
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Meeting Summary

Video: Portfolio Committee on Justice and Correctional Services, (National Assembly) 22 Oct 2020  

In virtual public hearings on the three Gender-Based Violence (GBV) Bills, the Committee heard from Southern African Catholic Bishops' Conference (SACBC) and MOSAIC Training Service & Healing Centre for Women.

In its submission on the Criminal and Related Matters Amendment Bill, SACBC supported the amendment of section 299A of the Criminal Procedure Act, in which the complainant in a domestic violence offence will have the right to make representations when the sentenced offender is considered for parole. However, they questioned why this will apply only when the sentence is one that exceeds seven years. It did not want the imposition of minimum sentences for a growing range of offences in clauses 11 to 17.

On the Domestic Violence Amendment Bill, SACBC supported the inclusion of ‘spiritual abuse’ under the general definition of domestic violence and as a separate definition. SACBC strongly submitted that the provisions on mandatory reporting of domestic violence be removed from the Bill as this could criminalise the victim.

Members said that spiritual abuse was prevalent in the country and wondered why another religious group did not support its inclusion. They questioned SACBC's dismissal of mandatory reporting stating that socio-economic inequality and poverty led to victims withdrawing domestic abuse charges.

MOSAIC Training Service & Healing Centre for Women presented a detailed submission including drafted proposed amendments. It requested the re-introduction of "stalking" in the definition of 'domestic violence'.

During their engagement with MOSAIC, Members asked if it had provided advice to complainants in cases of financial abuse –  as most people were not aware of that type of abuse. MOSAIC indicated that it had raised awareness about financial abuse, through its training and education workshops that take place at a local community-based level and deal with all forms of violence.

Members raised concern about police officers being either accused or jailed for domestic violence. Knowledge of such actions prevent domestic violence victims from feeling safe to report their assault to the police. MOSAIC agreed and said more needed to be done to ensure that police officers dealing with domestic violence cases are adequately equipped to attend to such matters.

Meeting report

Chairperson opening remarks
The Chairperson had circulated the original advert inviting comments from people and organisations on the three GBV Bills. He had done so as in a previous meeting, the Economic Freedom Fighters (EFF) said they had tried to be included as an organisations making an oral submission. It was raised in the Programming Committee that certain people were "not allowed" to make verbal submissions. However, there was no criteria that excluded anyone from doing so. Those who met the 30 September deadline but did not indicate they wanted to make oral submissions but now want to, can communicate with the Committee Secretary to do so. Those who missed the deadline cannot make oral submissions. The Committee had to act with urgency on these Bills as GBV is a matter that had to be dealt with.

Ms J Mofokeng (ANC) said that she was disappointed by the conduct of the EFF in saying it had not been able to make an oral submission. The party had been aware of both the process and the deadline to make a submission, yet it still failed to follow the procedure. She said that the African National Congress accepts that the party can make a verbal submission: however, it feels that the EFF conduct on the matter was poor.

Adv Breytenbach agreed with Ms Mofokeng.

The Chairperson noted Ms Mofokeng's point. Referring to the EFF’s criticism of the Committee’s staff, he cautioned Members from casting aspersions against its staff, especially when they had done their work.

The Committee had received apologies from Prof. Skelton and the Women’s Legal Centre requesting they be rescheduled for the 23 October. The Committee agreed to the request.

SACBC submission on Criminal and Related Matters Amendment Bill
Catholic Parliamentary Liaison Office Programme Manager, Mr Mike Pothier, referred to clause 2 and said SACBC supports the prohibition on granting ‘police bail’ to persons in custody for domestic violence charges, as well as the prohibition in clause 3 of the release on bail of such persons on the authority of the Director of Public Prosecutions.

In clause 9, SACBC supports the amendment to section 299A of the Criminal Procedure Act, in which the complainant in a domestic violence offence will have the right to make representations when the sentenced offender is considered for parole. However, they questioned why this will apply only when the sentence is one that exceeds seven years. 

On clauses 11 to 17, SACBC questioned the point of adding further offences to the list of those that attract minimum sentences, or of elevating the level of minimum sentences that apply to certain crimes. Neither is likely to have the effect of reducing the incidence of such crimes.

SACBC submission on Domestic Violence Amendment Bill
Amongst its many proposals on this Bill, SACBC strongly submitted that the provisions on mandatory reporting of domestic violence be removed from the Bill, or be redrafted, to prevent criminalising victims. SACBC approved the inclusion of spiritual abuse under the general definition of 'domestic violence' and as a separate definition of 'spiritual abuse'.

Mr R Dyantyi (ANC) appreciated the SACBC submission. Noting the history of the SACBC, he was pleased that the organisation remained interested in issues affecting society.

He asked for clarity on the inclusion of spiritual abuse under the general definition of domestic violence. In addition, he asked if SACBC agreed that spiritual abuse has been a serious problem for the country. It would be beneficial for the organisation to comment on this, as they represent church bishops. 

On its proposal that regardless of the period of imprisonment, the parole board needed to hear from the victim when considering parole, he asked what SACBC was proposing for the Committee to consider.  

Ms Mofokeng appreciated the SACBC submission. She noted the dismissal of Freedom of Religion South Africa (FORSA) of the term 'spiritual abuse'. She was disturbed by its dismissal, given how prevalent it is in the country. She was pleased that SACBC agreed that it should be included. She asked if SACBC thought that the parole system needed to be reviewed.

Ms N Maseko-Jele (ANC) appreciated that SACBC engaged with the Committee on these Bills. Since he belonged to the church fraternity, she asked if the religious authorities thought the definition of 'spiritual abuse' was adequate or if it required revising.  On mandatory reporting, she noted the gross inequality in the country. Equal access to information was not possible. She asked if SACBC had considered if this inequality would influence people’s ability to report.

Mr Pothier replied that there has been instances of spiritual abuse in the Catholic Church. There is overlap between the different forms of abuse, thus it is appropriate that the law provides clear and separate definitions to ensure that abusers cannot excuse their behaviour. Some pastors have cloaked abusive actions with the idea that they are providing spiritual or pastoral care. The law needs to outlaw such behaviour.

Both SACBC and FORSA work together on certain issues and they agree on certain things and disagree on other matters. He assumed that FORSA’s concern with the term is that people might use the provision to clamp down on freedom of religion. However, he believed that a balance could be found between the two. In the specific definition of 'spiritual abuse', only "(a) ridiculing or insulting the complainant’s religious or spiritual

beliefs" might fall foul of constitutional provisions on freedom of speech. The new definition speaks of the complainant's religious or spiritual beliefs. This definition seems to want to prevent people from attacks due to their religious or spiritual beliefs. In addition, it seeks to prevent abuse by religious authorities, as they can cause serious harm.

On mandatory reporting, he agrees that socio-economic inequality does pose a challenge to one’s ability to report. It is unlikely that the provisions being dealt with in the meeting, will be known by individuals in poor areas. The people who would need the assistance most, will not be helped. He clarified that SACBC takes issue with mandatory reporting because it believes that it may make criminals of people who are victims of domestic violence but choose not to report.

He replied about parole saying that for the offences of murder, sexual assault and such in the Criminal Procedure Act, the complainant must be given a chance to be heard and it does not specify the length of imprisonment for these offences. However, when it refers to domestic violence, the Amendment Bill states that the complainant is heard only if the offender's term of imprisonment exceeded seven years for any offence committed against a person in a relationship.

He asked why a victim of attempted rape and robbery can be given the right to influence parole if the criminal was sentenced to four years in prison, whereas in a domestic violence case this could only be done once a sentence exceeded seven years. He suggested the reference to seven years is removed. This would allow domestic violence offences to be on the same footing as other offences listed in Section 299 of the Criminal Procedure Act. The success of the parole system is contingent on the work of the parole boards. There needs to be more public involvement in the process, and the families of the victims should also be involved. This could form part of reconciliatory methods for both families.

The Chairperson thanked SACBC for its submission and said its information would be useful to consider when the Committee had its deliberations.

MOSAIC comments on Domestic Violence Amendment Bill
Advocacy, Policy, and Research Officer at MOSAIC, Ms Kerryn Rehse, said that the Mosaic Training, Service and Healing Centre for Women (MOSAIC) proposed that the Bill retain the definition of “stalking” in the Bill, as it is a well-known and understood term. The organisation supported the move to a system where protection orders are centralised. MOSAIC believed that this would assist with making the application and processing of protection orders easier. It provided detailed clause by clause proposals for the Bill.

MOSAIC recommended that the Bill should specify the obligations upon the police and Department of Social Development upon receiving a mandatory report. It presented draft clauses that stated these obligations.

Ms Mofokeng thanked MOSAIC for its submission. She was pleased with the work conducted by the organisation. She asked if it trained people to understand domestic violence as an act. In addition, had MOSAIC advised complainants of GBV to open a case of financial abuse. The Committee found that most complainants do not consider doing so. The Committee supports a system of centralised protection orders. She asked how they had assisted victims who had withdrawn their cases.

Ms W Newhoudt-Druchen (ANC) thanked MOSAIC for the submission. Recently, it was reported that there had been an increase in cases of online GBV. She asked if there is something that needed to be added to the Bill to strengthen provisions against online GBV.

A SAPS member was recently charged for GBV. Such incidents do not instil victims with confidence in the justice system. She asked how MOSAIC thought a victim could get assistance in a case of GBV, considering the obstacles in the system.

Ms Rehse replied that MOSAIC provides training and education on a local community-based level on all forms of violence. This training involves survivors, community members and leaders of the community – to ensure that the message is translated to other members of the community. MOSAIC officials can also be found in the magistrate courts and provide assistance to applicants looking to apply for a protection order. MOSAIC has raised awareness about economic abuse, and it has noted that there is little understanding of this. More can be done to inform people on the matter. 

Centralised protection orders would assist with the current backlog that exists. More information needs to be provided to community members on the centralised protection order process and for magistrates to consider the application immediately. This could provide greater safety for complainants.

On complainants withdrawing cases, she said that whilst MOSAIC would prefer that people do not withdraw cases, it had to respect the lived experiences of people and how this causes complainants to withdraw their cases. MOSAIC asked that the Committee think about this matter and to ask magistrates for submissions on this.

Ms Rehse noted the increase in online domestic violence and said that domestic violence tends to move online once a protection order has been issued. She believed that the Bill had made progress on how to deal with this. What needed to be considered was how the information could be presented to the court and make it into the protection order application. She believed that centralised orders would assist this.

She admitted that dealing with police officers who commit acts of GBV has proved to be difficult. The question should be how the whole of society can work together to humanise the police service. When recruiting officers, SAPS should ensure that police officers are equipped with the necessary skills to deal with domestic violence matters. In addition, harsh disciplinary measures should be employed for those who contravene the regulations.

The Chairperson thanked MOSAIC for the submission. He cautioned against singling out only police officers as officials who commit abusive acts. A magistrate or a prosecutor could also engage in domestic violence. It is a societal issue that needs to be addressed. He was impressed by several of the suggestions made by MOSAIC and this would assist in creating legislation that is implementable and can change society. There is a tendency to believe that GBV only affects a certain group of people, which is incorrect.

He emphasised that the Committee should give equal weight to both oral and written submissions.

The meeting was adjourned.

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