The Multiparty Women’s Caucus (MPWC) Steering Committee (the Committee) met virtually to consider the amended draft fourth term programme and analyse gender-based violence (GBV)- related legislation.
The content advisor presented the amended draft fourth term programme.
The Senior Parliamentary Researcher presented an analysis of the Domestic Violence Amendment Bill and Criminal Law (Sexual Offences and Related Matters) Act Amendment Bill. The presentation focused on those areas of the Bills that could be considered potential challenges as raised in public hearings held so far.
The Committee was informed that the purpose of the DVA Bill was to amend and insert certain definitions, facilitate obtaining protection orders, impose obligations on the Department of Social Development and Department of Health to provide certain services to victims of domestic violence, align the provisions of the Domestic Violence Act with provisions of the Protection from Harassment Act.
Members heard that the Criminal Law (Sexual Offences and Related Matters) Act Amendment Bill is a welcomed addition to addressing gender based violence and introduces positive changes such as clarifying the definition of incest, making provision for sexual intimidation and further regulating the mandatory reporting of sexual offences against children. The key challenges include: the List of those regarded as being vulnerable; National Register of Sexual Offences; and Providing reasons to complainants for decisions not to prosecute.
Members discussed the Committee’s approach to what was before Parliament and inputs on the challenges to or contentious areas of the Bills. It was suggested that inputs were to be in accordance with what the Committee identified as the problem or impediment to manage and effectively respond to GBV; and the Positive and negative aspects in terms of the proposed amendment to reporting on behalf of an able-minded or able-bodied adult. Members identified a few of the key challenges included: bail conditions for GBV perpetrators; effectiveness of the protection order; mishandling of GBV complainants by police officials; and the number of cases that were being withdrawn.
It was concluded that Members would have time to engage on the presentations in the full caucus meeting that was to take place the following day.
The Chairperson asked Dr C Pilane-Majake (ANC) if she could find another Member to join the meeting as there needed to be four Members present to start the meeting, which only had three Members present. Ms Z Nkomo (ANC), Whip: MPWC, would be conducting a study group later that evening and the Chairperson thought that it would be good if Ms Nkomo had been briefed.
Dr Pilane-Majake suggested that they continue waiting while trying to get in touch with the unconnected Members to see whether it would be possible for them to connect.
The Chairperson asked Ms Thembakazi Mpapela, Committee Content Advisor, to check with those Members of the Committee who were not yet connected.
Ms Mpapela said that she would check but suggested that the Committee continued with the meeting in the interest of time while she did so, as Members had a budget meeting at 14h00. Thus, she proposed that the Committee continue the meeting without taking any decisions so that Ms Nkomo could get the information needed for her study group.
The Chairperson asked for Members’ opinions.
Dr Pilane-Majake agreed that the Committee should continue while Ms Mpapela got someone else to connect.
Ms Nkomo also thought that the Committee should continue.
Fourth Term Programme
Ms Mpapela presented the amended fourth term draft programme.
Starting from today, 28 October 2020, the Steering Committee was to consider the draft fourth term committee programme as well as look at GBV-related legislation. On 29 October 2020, the full MPWC would look at the GBV-related legislation. On 25 November 2020 the Steering Committee would consider the draft first term programme, prepare for 26 November 2020 meeting of the MPWC, and consider the draft committee report on the Strategic Plan on GBV and Femicide. In the last meeting on 26 November 2020, the full MPWC would be briefed by the Departments of Police and Justice and Constitutional Development on: (1 The effective functioning of sexual offences courts and Thutuzela Care Centres; (2) Measures in place (including training of personnel) to ensure victim responsive services and the effective investigation and prosecution of reported GBV cases; and (3) Status report on the DNA case backlogs and availability of testing kits at police stations. The Steering Committee would also consider the draft first term committee programme and drafter committee report on the Strategic Plan on GBV and Femicide.
Presentation on GBV-related legislation
Ms Joy Watson, Senior Parliamentary Researcher, briefed the Committee on the Domestic Violence Amendment Bill (DVA Bill). She focused on those areas of the Bills that could be considered potential challenges as raised in public hearings held so far.
The Bills come from the National Summit called by the President in 2018, where there was a commitment to look at pushing efforts into attempts to eradicate GBV. The Bills are positive developments and bring positive changes in GBV.
Analysis Domestic Violence Amendment Bill
The purpose of the DVA Bill is to amend and insert certain definitions, facilitate obtaining protection orders, impose obligations on the Department of Social Development and Department of Health to provide certain services to victims of domestic violence, align the provisions of the Domestic Violence Act with provisions of the Protection from Harassment Act.
Key provisions in amending and including definitions include: Definition of a child as being someone who is under eighteen years of age; Definition of coercive behaviour; and Definition of controlling behaviour. The DVA Bill further clarifies certain definitions. The DVA Bill also introduces a new form of harassment, that of ‘spiritual abuse,’ which is defined as ridiculing or insulting a complainant’s religious beliefs, preventing a complainant from practicing their religious or spiritual beliefs or using the complainant’s religious or spiritual beliefs to control, manipulate or shame them.
Key provisions in relation to making an application for a protection order: Section 4(1)A makes provision for a complainant to apply for a protection order to a clerk of the court by way of a secure online submission, a welcome addition in easing the application for protection orders, without having to apply for one in person. The primary Domestic Violence Act does not make provision for informing a complainant of the outcome of an application for a protection order, which is a serious shortcoming. The amendment to the DVA Bill addresses this. Section 3(a) requires the clerk of the court to inform the complainant when the protection order is issued. In addition to informing a complainant of the outcome of a protection order, the clerk of the court must also inform the complainant of the provisions of the interim protection order as well as the date of the return to court. A prospective inclusion would be that all applications must be completed on the same day that the application is lodged – ideally applicants should be informed of the outcome of their application while still at court. If the interim order is issued, a copy of the order, together with the warrant in terms of section 8 must be handed to the complainant. Some courts already utilise this process informally. It works well because it prevents a situation where women have to come back to court or phone to follow up on the outcome of their application.
Insertion of Section 2 into the principal Act: Section 2A of the DVA Bill pertains to service providers who are asked to assist or become aware of an incident of domestic violence. It places an obligation on such persons to refer affected persons for further assistance, provide the complainant with access to resources, render assistance to ensure the safety of children, and render assistance to access medical care and counselling. Section 2B(1)(a) of the DVA Bill provides that any person who has knowledge or a reasonable belief that an act of violence has been committed against a child, person with a disability or older person, must immediately report this to a social worker or police official. A person who fails to report is guilty of an offence and is liable on conviction to a fine or imprisonment. This is understandable where a person is not able to make a decision themselves but Section 2B (2)(a) makes provision that any person who has knowledge of an act of violence being committed against an adult in a domestic relationship must immediately report this to a social worker or police official. A person who fails to report is guilty of an offence and is liable on conviction to a fine or imprisonment. Research has shown that mandatory reporting policies does not have a positive effect. Compelling others to report an incident of domestic violence committed against an adult woman, deprives them of agency and the ability to make decisions. In effect, it is also a form of abuse, in taking away their decision making capacity. Mandatory reporting may increase the number of cases reported to the system, but it will also come with concomitant costs such as lowering the numbers of victims that will report to the police. It is important that the victim has the right to make the decision, especially from the perspective of not compromising their safety. It also disincentivises from accessing healthcare etc. because service providers are obliged to report.
Provisions for electronic communications service providers to furnish court with particulars: Section 5 (B) of the DVA Bill deals with situations where a protection order is granted as a result of harassment by means of electronic communication. It makes provision for an electronic communications service provider to furnish the court with information that may assist in identifying a respondent. There is some concern regarding section 5(8)b which specifies that liability rests on the complainant for the costs related to eliciting the information and for removing and disabling access provided for the electronic communications provided for in section 5(8)b. The DVA Bill makes provision for cases where the complainant is unable to pay the costs, whereby the court must hold an inquiry into the means of the complainant and can decide whether or not to waiver the costs. The problem is that the point of departure is that the complainant is liable for the costs and has to prove that she is not able to afford the incurred costs.
Other challenges with the DVA Bill that need to be addressed: Deletion of stalking as a form of domestic violence from the DVA Bill is problematic as stalking is a form of domestic violence. Studies done by the Medical Research Council on femicide in South Africa show that stalking is one of the ways in which intimate partner violence plays out. It is thus important to retain stalking. Inclusion of the definition of weapon as any object used to inflict grievous bodily harm is commended. While the Domestic Violence Act makes provision for the removal of a firearm in domestic violence situations, it does not make provision for suspending firearm license for a specific time period – which is recommended. In terms of the requirement of sharing a residence, premises or property within the preceding year in the definition of ‘domestic relationships’, the introduction of a timeframe of within a preceding year is problematic in the sense that it narrows the recourse available to victims. In reality, it is entirely feasible that situations can arise where someone who is violent and abusive is away from home for more than a year, and then returns home and engages in acts of violence.
Dr Pilane-Majake had looked at the time and realised that soon Members would have to go to a meeting of the House. The presentations were good and provided an idea of what the Bills were all about. What she thought was most important was the Committee’s approach to what was before Parliament in terms of making it a point that there would be inputs engineered from the side of the Committee. She imagined that the inputs would be in accordance with what the Committee identified as the problem or impediment for the country to manage and effectively respond to GBV. Some of the challenges had already been mentioned but she thought that one thing Members should be allowed to do is enlist some of the areas that they thought were contentious, so as to see whether the Bills before Parliament would cater for them. She began with the bail conditions for GBV perpetrators, as this was what women always complained about – women would report somebody, who would get arrested, released, and then go home to continue the abuse. The Committee needed to carefully look at the bail conditions to see whether there was anything that could be done to improve the bail conditions. In terms of the protection order, it was known how many women were killed with a protection order in their hands. What else needed to be done? How does one come around the situation where it is found that a woman is killed with a protection order in their hands? This undermined the very system that was trying to be achieved.
The Chairperson fully agreed with Dr Pilane-Majake. However, she said that when the meeting started the issue was for the Committee to be briefed in order for Ms Nkomo to have knowledge of the presentation for her study group – which was where Members would discuss or come up with inputs like Dr Pilane-Majake had provided. When the meeting started there were less than four Members and it was agreed that if there were less than four Members then the Committee would not provide inputs or take decisions. She asked whether the Committee was to continue the presentations with taking decisions or give the parliamentary researchers an opportunity to brief the Committee and deliberate on it later.
Dr Pilane-Majake explained that she was just asking whether the current approach would be beneficial for the MPWC. What was important was not just being briefed and knowing what was going on but how the Committee made inputs into processes in a way so that the processes actually elicited what the Committee thought were desired results in terms of how they identified the problem themselves. She reiterated that she was just talking about the Committee’s approach. There were Bills before Parliament and how these Bills are influenced was the kind of input. This was why submissions should be called, so that there could be inputs when there was a law-making process as to influence and try and help structure some of the clauses. This was so that the Bills could be seen in such a way that it would actually be helpful in relation to the kind of problems that would have been identified. She was not saying that she was against the presentation as the presentation was good as it provided background to the Bills and informed Members of what the intention and purpose of the Bills were all about. At the same time, when she was talking about approach she wanted the Committee to identify a few things when taking it towards any forum.
The Chairperson asked Dr Pilane-Majake to suggest one problem.
Dr Pilane-Majake said that she had already suggested the bail conditions. Normally in the public space, one would hear people saying that bail conditions were a problem. Something needed to be done about the bail conditions. She repeated the occurrence of women dying with protection orders in their hands. There were measures put in place for women to have a protection order but women were still being killed with a protection order in their hands. There were also complaints about women going into police stations and having police themselves sometimes mishandle them. Was there a provision in the DVA Bill that would actually ensure that, if such behaviour happened, police are held to account? These were some of the things that needed to be looked at. There was also a concern about the number of cases that were being withdrawn.
The Chairperson said that she understood Dr Pilane-Majake but mentioned that a presentation was still being made. Dr Pilane-Majake had noted the issue of approach but was now deliberating on some other issues. She noted what Dr Pilane-Majake had said; however, she thought that the second presentation should be concluded and that things could be taken from there. Dr Pilane-Majake could also write something to assist.
Dr Pilane-Majake agreed. She was just pointing out that in the interest of time the Committee needed to change its approach.
The Chairperson thought that other people needed to be given a chance to speak.
Dr Pilane-Majake asked if the four points that she had indicated could be taken into consideration moving forward.
Presentation on GBV-related legislation
Analysis Criminal Law (Sexual Offences and Related Matters) Act Amendment Bill
Ms Watson briefed the Committee on the Criminal Law (Sexual Offences and Related Matters) Act Amendment Bill (SORMA Bill), focusing on the issues found within it.
The SORMA Bill is a welcomed addition to addressing gender based violence and introduces positive changes such as clarifying the definition of incest, making provision for sexual intimidation and further regulating the mandatory reporting of sexual offences against children. The key challenges include: the List of those regarded as being vulnerable; National Register of Sexual Offences; and Providing reasons to complainants for decisions not to prosecute.
List of those regarded as being vulnerable: The amendment of Sections 40-51 expands the scope of the National Sexual Offences Register to include the particulars of sexual offenders and expands the list of persons protected to include vulnerable persons in addition to children and people with mental disabilities. Section 5(c) of the SORMA Bill specifies a list of those who are regarded as being vulnerable, which includes women under the age of 25 years amongst others. The problem with this is that women are generally vulnerable to sexual offences and cannot be restricted to a specific age group. It is therefore recommended that the age of 25 is removed as it should apply to all women.
National Register of Sexual Offences: Section 7(c)(4) provides that the Registrar must make the full names, surname, identity number and the sexual offence committed for all perpetrators who have been included on the register available on the website of the Department of Justice and Constitutional Development. The purpose of so doing is not clear. The purpose of keeping the register in the primary Act is so that employers and employees can access information about a person on the register for the purposes of employment. In opening up the register to the public, it becomes possible for accessing the information for purposes other than employment and for people potentially taking the law into their own hands in taking action against those whose names are on the register.
Providing reasons to complainants for decisions not to prosecute: The current National Prosecuting Authority (NPA) Policy Directives provide that the NPA must provide reasons to a victim for a decision not to prosecute, but only if a victim requests these reasons. Victims have no automatic right to these reasons and there are no requirements governing the level of detail provided. It is recommended that the NPA should inform victims in writing of the decision as to whether or not to prosecute and the reasons for this.
The Chairperson indicated that there was not enough time for further presentations. She asked if there were any other Members who wanted to say something. Members were to bear in mind that there would be a full caucus the following day, where Members would still have time to engage on the presentation given to the Committee by the Department.
Ms F Masiko (ANC) asked for the negative aspects in terms of the proposed amendment to the reporting on behalf of an able-minded or able-bodied adult, even though clarity might not be given immediately. She asked that it be discussed why there was a suggestion that if a person is able to pick up that another individual is being abused they should report it. Ordinarily it would be found that if a person is in an abusive relationship, they would stay in it until they are killed because they have failed to report the abuse for many reasons. When the parliamentary researchers presented the following day, she asked that they look at both the positive and negative aspects of it.
The Chairperson thought that it would be clarified the following day as the Department would be presenting on it.
Dr Pilane-Majake said that the Chairperson had shut her down when she was making comments. She asked that the Department indicate something about the approach as she had suggested earlier. She was not saying that what had been done should be changed if it was not agreed that the approach would be revisited. Could the approach be spoken of in terms of the comment that had been made?
The Chairperson noted Dr Pilane-Majake’s request.
Ms Nkomo knew that what was important was that the following day the Committee should be in a position to lead the discussion. She understood that the sole purpose of the meeting was that when the following meeting was approached, Members should be allowed to develop their own inputs in terms of the amendments of the Bills.
The Chairperson concluded that Members had another meeting to attend.
The meeting was adjourned.
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