Domestic Violence Amendment Bill: deliberations

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Justice and Correctional Services

03 March 2021
Chairperson: Mr G Magwanishe (ANC)
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Meeting Summary

Video: Portfolio Committee on Justice and Correctional Services

The Committee received a briefing on the first working document of the Domestic Violence Act (DVA) Amendment Bill with proposals for changes based on the public submissions and Committee deliberations. The Committee deliberated on definitional amendments and additions and the effects that these changes would make. There was discussion on the term ‘undue' pressure, effectiveness of peace officers, if physical abuse would cover parental chastisement and threats, whether to include a domestic violence monitoring notice into the Bill drew lengthy deliberations. 'Sexual harassment' was set apart as a separate form of conduct from harassment and 'related person' and 'related person abuse' were amended throughout, being used more deliberately in fewer instances.

Members wanted to ensure that a suspect discovered off-scene could be arrested for the domestic violence; where the complainant and respondent share a residence, the respondent can be held responsible for damaging property which benefits the household, even if owned by the respondent. Additionally, Members called for improved system that identifies how often women have applied for protection orders and against whom so that serial abusers can be monitored.

The Chairperson asked Members to review the new proposals with their parties and return the next week having applied their minds.

Meeting report

Domestic Violence Act Amendment Bill
Mr Sarel Robbertse, State Law Advisor, Department of Justice and Constitutional Development (DoJ&CD) said the first amendment reflects his view that when an Act is amended, the title of the Bill should cite the full name of the Act in the Amendment Bill title. Where he made comments, these are indicated in blue. New proposals are indicated in red.

Definition of 'child'
He proposed that the definition of ‘child’ found in the Children's Act be inserted as it is referred to in the definitions of 'sexual abuse,' 'physical abuse,' as well as in clause 5 of the Bill.

Definition of 'coercive behaviour'
There is the suggestion that intimidation be removed from the definition as intimidation is dealt with as a separate act of domestic violence in its own right. He asked his colleague, Ms Clark, to explain this.

The Chairperson interjected to ask if Mr Robbertse was going to take the Committee through the working document with or without comment by the Committee as he goes through it, to see if Members are happy with each change so they know that each clause has been processed.

Mr Robbertse said that it was better to take comments as they go along so they do not miss something.

The Chairperson agreed and asked Members to comment on the definition from the Children's Act.

Adv G Breytenbach (DA) agreed to the insertion of the definition of 'child', however, she had a question on the definition of 'coercive behaviour', when they get to it.

Mr S Swart (ACDP) apologised as he had to leave for the Whips meeting but would try to re-join.

Ms Y Yako (EFF) said she was also in agreement of the use of the Children's Act definition.

Mr X Nqola (ANC) said he was in agreement, particularly the child is defined as a person under 18 years. It would not have been legally correct to bring a definition that is inconsistent with that definition as it would have caused legal confusion.

The Chairperson asked Members to comment on the coercive behaviour definition.

Adv Breytenbach said under coercive behaviour, she could not see any reference to behaviour such as grooming. She asked if it was dealt with elsewhere as it is coercive behaviour, it is just very subtle. She thought grooming needed to be included if it was included somewhere else.

Ms Yako said her concern was coercive behaviour is very broad and there are different types of coercive behaviour. As it is, it says 'abusive conduct' and 'acts of force' but it is not very broad in her opinion.

Ms Mofokeng agreed with Adv Breytenbach. She heard what Ms Yako said. She asked that the Department be allowed to explain and then they engage.

Adv Dellene Clark, State Law Advisor at the South African Law Reform Commission, explained the proposal is to remove the terms 'abusive' 'acts of force' and 'intimidation'. The reason for this is that coercion is primarily a way of persuading a person, either by threats or by force. It is an open definition; therefore, it should include any kind of coercive behaviour. In the proposal put forward it defines it as 'any conduct or pressure, which is intended to cause or has the effect of causing a complainant to act, not to act or to be subjected to certain act, against his or her will'. The suggestion is also to take out the word 'undue' in front of the proposal in page 5 of the document. The reason for this, particularly in the police comment, is that it is difficult to define what is undue or not undue pressure and if one just calls it conduct or pressure, then it is easier to interpret and apply. The removal of 'related person' is because it is not well-placed here as the coercion is applied to the complainant and may include acts that are meted out against a related person. For example, one could coerce another to do something, and if they do not do it, one would then beat their child. This would mean that pressure is placed on someone to act in a particular way.

Mr Robbertse replied that grooming is included in the definition, he supposed that it was not specifically included. He thought that it was better placed under 'sexual abuse' which is dealt with later on. Sexual abuse is another form of domestic violence that has been identified. In the definition of sexual abuse, reference is made to offences in the Sexual Offences Act. If it relates to a child, sexual abuse will include, among other things, grooming.

The Committee agreed to discuss this when it deals with that particular clause.

The Chairperson asked Ms Yako if Ms Clark had answered her.

Ms Yako said that in her view, coercive behaviour is very broad and as someone said in the public comments, it can be passive, and does not have to be aggressive, such as grooming; therefore, only in hindsight would one realise one had been groomed. However, she would wait with Adv Breytenbach for the clause that speaks to this.

Mr Robbertse continued and said that there are other definitions for coercive behaviour.

Other definitions of 'coercive behaviour'
He referenced the definition on page 6 saying it was a third alternative which may be considered by the Committee when they finally instruct the Department to finalise the Bill. He asked if there were comments.

The Chairperson asked Mr Robbertse to read the first two definitions so that Member could see if there was an overlap to see if there was a need to fuse the two options in the form of the third.

Definition 1: coercive behaviour 'means any abusive conduct or acts of force, or pressure intended to cause or which has the effect of causing a complaint to act, not to act, or be subjected to certain acts against his or her will.'

Definition 2: coercive behaviour 'means any pattern of abusive behaviour towards a complainant, which is intended to cause undue pressure on the complainant to act, not to act. or be subjected to certain acts against his or her will.' He noted that Ms Clark took issue with the words ‘any pattern.’

Definition 3: coercive behaviour means
(a) violence or threatened violence towards a complainant or a related person;
(b) damage to property or threats of damage to property belonging to the complainant or a related person; or
(c) any pattern of abusive behaviour towards a complainant,
which is intended to exert undue pressure on a complainant to act, not to act, or be subjected to certain acts, against his or her will;"

Adv Breytenbach said that she did not like the word 'undue.' As a prosecutor, she could see many pitfalls with what would be viewed as undue. She thought the simple use of 'pressure' alone was fine. Any pressure in this regard should be regarded as undue in any effect. She would prefer to remove 'undue.' She agreed with Ms Yako's point on 'coercive' being wide. As a prosecutor, she would rather have it wide, so that you can consider each case on its merits and if it fits in there then it fits in there. As soon as one starts defining it narrowly, then the interpretation would then be that anything that is not in is out and one may find oneself with a circumstance that does not fit in the definition but which is coercive. It would be very difficult to persuade the court to extend the definition to cover it. As a prosecutor, she would rather be able to argue that something is undue based on the facts rather than be faced with the problem of being limited by what is in the Act with anything not in the Act not being regarded as coercive.

The Chairperson asked if she was then more covered by the first option.

Adv Breytenbach agreed.

Ms Yako said that Adv Breytenbach made a valid point. However she confused her where she said that she wants to remove 'undue' pressure on a complainant. It could be subjective to a complainant if the conduct was undue or not. Adv Breytenbach kept mentioning what undue was, which is broad, so why remove it if it is the basis of an argument.

Adv Breytenbach said she was sorry and she may have misused the word. She was referring to coercive behaviour. Undue, however, again limits. What is undue? In a court situation one could spend literally days arguing about what 'undue' is, whereas if you just have 'pressure,' in her view; pressure is already wrong. Once you add 'undue' you need to argue what is undue and how much pressure there must be before it is undue. It should just be pressure without the mention of 'undue.'

Ms Yako felt 'undue' was sufficient as it could be as simple as a ‘no,’ ‘don’t' or ‘stop.’ Undue could be anything. She thought that undue in itself was as broad as can be, because it is subjective to the complainant, which makes the complainant act. She was not sure if there was another word for 'undue' that would make Adv Breytenbach more comfortable, but for her, undue made sense. For her, undue could be anything from a silent word of 'no' to broader word of whatever, in terms of coercive behaviour; where someone said stop but was coerced. She did not know.

The Chairperson said that if he understood Adv Breytenbach, the issue was that of the two words together, 'undue pressure.' Her argument is that pressure, when applied, would suffice; however, when the word 'undue' is added, the state especially would run into operational problems in court. For her, there was no necessity to put the two words together as the word pressure alone would suffice. He asked Adv Breytenbach if he had understood her correctly.

Adv Breytenbach agreed. Pressure sufficiently covers it and allows more opportunity to argue on the merits of each particular case and 'undue' would be limiting.

Ms Yako said she would leave it as she could not argue the law with a prosecutor. It was just a concern she had, which she thought should be put on record as for her, undue makes sense. She would not argue with Adv Breytenbach and if the Committee agreed, it was fine and the word can be removed.

The Chairperson thanked her. He told Mr Robbertse that for now it would tentatively use the word pressure; however, the Committee would not be making definite decisions for today. Ms Yako and Adv Breytenbach would think about if 'undue' would add any value to the case against domestic violence; or if pressure alone suffices. He asked that tentatively it be left as pressure.

Ms N Maseko-Jele (ANC) noted comments in the public chat and asked that the Chairperson keep checking them every now and then. Someone had shared the definition of 'undue,' as being 'unwarranted' or inappropriate, excessive or disproportionate.' She said when Members go on break to think about the issue. They should check the definitions; even of pressure so that it can have a conclusive response.

The Chairperson said that the matter was a difficult one as the Rules of the House did not cover the chats. Ordinarily, if the Committee were sitting in Cape Town, there would not be a situation where member of the public simply send messages and those messages are considered. This is because the time for public comment is over. When the rules for virtual meetings were adopted, it did not consider the chat. He thought the Rules Committee should apply itself to the issue and as such it had not been restricted. He thought that Members were welcome to read the chat and they do help, however, the comments on the chat should not interrupt the proceedings of the meeting as they can be interpreted to amounting to an extension of public comments. Until the Rules Committee deals with it – as they never anticipated the use of the platform –, it would take a less restrictive approach. Members can look at the messages, but should raise the issues as their own in the meeting. He hoped this was taken in the spirit that it was meant.

Ms Maseko-Jele thanked the Chairperson, saying she understood.

Ms W Newhoudt-Druchen (ANC) agreed with Adv Breytenbach about 'undue' as she could imagine two lawyers fighting about its meaning and when the abuse became undue whilst the complainant has to watch this play out. She thought pressure was pressure and that was it.

The Chairperson said that the Committee would tentatively have it as pressure only.

Mr Robbertse noted that ‘pattern’ in the second and third definitions is also potentially problematic as it is hard to define if a pattern constitutes one, two or three instances.

Definition of ‘complainant’
There are two ways to deal with this issue on page 6:
Option 1 Where domestic violence against a related person be included, meaning the definition of ‘complainant’ and ‘domestic relationship' to be amended.

Option 2 This deals with domestic violence against a related person as a special category of domestic violence. It is recognised as the category of domestic violence where it causes harm to a complainant.

Mr Robbertse qualified that the various definitions where reference is made to related persons may need to be qualified to remove 'related person.' As proposed in a further category of conduct; a new category of domestic violence needs to be created. The proposals give effect to the second option mainly. He would deal with the extent of such amendments later on. He also had to refer back to coercive behaviour; namely the last proposed definition of coercive behaviour, where there is specific reference to certain conduct against a related person which causes harm against a complainant. This is also added to address the concerns raised about Option 2.

The Chairperson asked Members which version of the definition encompassing the two proposed options they preferred. He asked Mr Robbertse if Option 2 is more in line with the Criminal Law (Sexual Offences and Related Matters) Amendment Bill.

Mr Robbertse replied that to a large extent, it will limit the category of persons against whom offences may be committed. As explained in paragraph (b) on the 'complainant' definition on page 6; a related person is defined as 'any member of the family or household of a complainant, or any other person in a close relationship with the complainant'. For example, where the complainant and respondent do not live together, and the complainant marries someone else, the new husband will then qualify as a related person for all the conduct defined as domestic violence. Even the child or a new child or the family of a new marriage partner may be considered as related persons in a domestic relationship. This extends domestic relationships widely. The narrow option is more in line with what the Department aims to achieve in the Criminal Law and Related Matters Bill; which is mainly to protect a family and a household and the people in the family or household. His critique was that if it is expanded so widely to include persons in a close relationship, it may cause implementation problems for the Criminal Law and Related Matters Amendment Bill.

The Chairperson said that the Committee has already voted on the Criminal Law and Related Matters Amendment Bill and would not want to have a related law contradict it.

Adv Breytenbach agreed.

The Chairperson told Mr Robbertse that it should stick to what it had already been passed, so that there is consistency.

Mr Robbertse said that another element that had not been dealt with in the document, which may also be considered in finalising the Bill, relates to the reference in the Criminal Law and Related Matters Amendment Bill to an offence against a complainant. One must look at the definition of a domestic relationship; which amongst other things, includes persons that merely live together; not even a family member that is not necessarily a part of the household. It can be a family member where there is no close relationship between the family member and the respondent. In a future document that he would prepare, he would include this aspect. He submitted that there was a need to narrow it down and probably also to insert a definition of an offence against a person in a domestic relationship in the Domestic Violence Bill; so as to ensure that it specifies: first, the offences that may be committed, and secondly, to restrict its over-broadness.

Definition of ‘controlling behaviour’
The definition is amended mainly to omit a related person from the definition to give effect to Option 2 on page 6. There is also a new proposed definition of controlling behaviour on page 7.

In the second proposed definition on page 8 it is defined as 'a pattern of behaviour towards a complainant that is aimed at making the complainant dependent on or subservient to the respondent, which includes
a) isolating him or her from sources of support;
b) exploiting his or her resources or capacities for personal gain;
c) depriving him or her of the means needed for independence, resistance or escape;
d) regulating his or her everyday behaviour.'

Mr Robbertse noted that this proposal includes various elements from the previous definition. What is inserted is 'a pattern of behaviour towards.' Another new insertion is conduct that is aimed at making the complainant dependent on or subservient to the respondent. He asked if there were comments on the proposal.

The Chairperson asked if there was a need to include 'pattern,' when he had already gone into detail to define it.

Mr Robbertse said that he indicated earlier that 'pattern' was a problematic word and should be removed.

Adv Breytenbach and Mr Nqola agreed.

Definition of ‘communication’—see amendments to harassment
Mr Robbertse said this definition needs to be distinguished from that of ‘electronic communication’. He felt that it would be dealt with better when discussing harassment.

Definition of ‘damage to property’
Mr Robbertse read the three proposals for the definition.

Ms Maseko-Jele raised issue with the phrase in Proposal 3 (b) which reads 'in which the complainant has a vested interest.' She asked if the statement covers people who have different types of marriage arrangements. Where someone is married out of community of property and is sharing something with their spouse which belongs to them whilst they stay together. Where the spouse damages the shared item, this would affect the family and the children they have together. She asked how the law would cater for such a situation.

Mr Robbertse said that vested interest goes beyond mere ownership or possession. It was his opinion that if the complainant lives in the same house as the person complained against, that person probably has a vested interest.

Ms Clark added that this means that the complainant does not have to prove ownership of the item destroyed. The manner in which it is currently framed means that the defendant might punch or break something next to the complainant and it not being her property, she may not have recourse if she cannot prove ownership. This is in terms of damaging his own property, as often respondents are very manipulative and try to skirt around the law. If he were to damage his own car, this would then be factored in under emotional abuse. She hoped this helped.

The Chairperson said that it did and asked Members to contribute.

Ms Maseko-Jele asked if there will be a definition of vested interest as explained.

Ms Clark replied that the proposal is to remove the contested and vague area of ‘vested interest’ which requires the proof of a vested interest. The proposal is to state that if it is in the possession or under the control of the complainant, this would suffice. One is therefore removing the vague and contented area of vested interest and proving ownership in the actual belonging.

Mr Robbertse noted Proposal 3 where vested interest is included in addition to 'possession' or 'under control of the complainant,' he did not think it was necessary to define vested interest. Obviously, when a specific word in legislation is not defined, it must be given the ordinary dictionary meaning. He thought that it was clear what a vested interest is in the context of Proposal 3, where in addition to everything else included in Proposal 3, it will include: a mere interest in the property, which may include, amongst other things, the use of property.

Ms Maseko-Jele wanted to agree with Mr Robbertse but said not to remove the term for now, because she wanted to know what would happen if the man is not the owner.

Ms Clark replied that vested interest was originally included, however public comments suggested it be removed. As Mr Robbertse had explained it, they were able to re-insert it.

The Chairperson said he understood Ms Maseko-Jele’s concern, especially from the perspective of women as the wife and children may have a vested interest in the property.

Definition of ‘domestic relationship’
Mr Robbertse said the ‘premises or property within the preceding year’ makes the definition very wide. He submitted that it should probably be excluded from the definition.

In para (f) on page 11, the mere fact that people live together could have unintended consequences. However, in other jurisdictions, the sharing of property amounts to a domestic relationship. This is then qualified by saying either a family or domestic relationship must exist. Therefore, the new option proposed in (f) removes the recency as well as the premises and property requirement.

There were no objections to this.

The Chairperson asked Mr Robbertse keep tabs on the Criminal Law and Related Matters Amendment Bill as it had been passed by the Committee but not yet tabled.

Mr Robbertse submitted that most consequences that relate to Domestic Violence Act, can be addressed in the Domestic Violence Act itself. A big thing is to define what an offence against a person in a domestic relationship is; however, he would keep tabs on the other Bill.

Proposal for the insertion of 'sexual harassment'
Mr Robbertse said that there is a new proposal for the insertion of 'sexual harassment' into the definition of 'domestic violence'. Currently the conduct that is defined as 'harassment’ also includes sexual harassment. Various countries deal separately with sexual harassment in their definitions of conduct amounting to domestic violence. Sexual harassment can be excluded from the current provision dealing with harassment and can be inserted as separate conduct amounting to domestic violence.

Proposal on ‘related person abuse’
'Related person abuse' is inserted to cater for a situation where a related person is harassed or faces certain conduct directed at them. This conduct then also harasses or hurts the complainant. He would discuss it more when they reached the definition.

Definition of 'domestic violence'
‘Related person’ was removed from paragraph (i) of page 14 as it makes it so wide that there may be unintended consequences and related person is dealt with in ‘related person abuse.’

Options (a)-(i) cover most conduct which amounts to domestic violence, and para (j) is a catch-all provision which overlaps with various other definitions. A new provision was proposed to narrow its ambit and to provide what is called an 'objective standard' to evaluate conduct that falls within the catch-all provision. The proposed amendment is defined as 'any other behaviour towards a complainant' which is qualified by a reasonable person test who must consider if the behaviour:
(i) is 'intimidating, threatening, abusive, degrading, offensive or humiliating; or
(ii) inspires the reasonable belief that harm may be caused to the complainant.'

Once again 'related person' is excluded from the definition. One must remember that almost all conduct that amounts to domestic violence, is already dealt with in (a)-(i), however, there may be certain instances which fall outside those. Hence (j) is inserted to ensure that if there is another kind of conduct is not provided for in (a)-(i), a court may still regard certain conduct as domestic violence as proposed in (j).

There were no comments.

Definition of ‘economic abuse’
Mr Robbertse said that 'related person' is removed from the definition, mainly because of concerns raised by the South African Police Service (SAPS), which stated that economic abuse or any other conduct which refers to 'related abuse' or 'related person abuse,' may be too wide.

Proposal on 'economic abuse'
There is an alternative proposed definition of economic abuse that largely retains the current definition in (a).

Certain amendments are proposed to the current definition in (b)-(d). New conduct is included in (c) and (d) with the rest being amendments.

There were no comments.

Definition of ‘electronic communication’
Mr Robbertse said as a result of proposed amendments to harassment and conduct, the definition of electronic communication has also been amended, mainly to include voice, sound data etc which is transmitted by means of electronic service. This caters to the new proposed definition of harassment.

Ms Newhoudt-Druchen noted the Department added 'voice, sound, data, text' but she did not see the term 'social media. She asked if social media is covered in that.

Mr Robbertse replied that he thought everything else was included. It speaks to the content of a data message and goes further to say that anything that is distributed by electronic service. This includes basically anything that can be distributed by electronic communications.

Definition of ‘emotional, verbal; [and] or psychological abuse’
Mr Robbertse noted certain amendments as 'threatening, offensive, intimidating' are inserted into the definition, and qualified by 'that causes emotional or psychological harm to a complainant.' The term 'related person' is removed.

Para (e) was already explained to the Committee as the destruction of property in close proximity to a complainant that may cause emotional or psychological harm. Harm to animals or pets is included. Three new paragraphs (g)-(i) are inserted to the definition:
(g) to disclose or threatening to disclose a complainant’s sexual orientation to others against the complainant’s wishes; or
(h) to threaten the complainant with the death or injury of another person or damage of another person’s property; or
(i) to threatening to commit suicide or self-harm.

The last one is frequently used in a domestic relationship where complainants are often threatened by another who threatens to commit suicide or to self-harm.

The Chairperson asked why the Department was limiting it to disclosing or threatening to disclose a complainant's sexual orientation against their wishes. It might go further than this as sometimes a person might threaten to disclose anything that is detrimental other than sexual orientation. He used the recent example of the Zimbabwe Vice President who was threatened with a disclosure of his sexual relationships.

Ms Yako agreed. Some people use revenge pornography, where they threaten to post your nudes online. She asked Members if they agreed to add this to the definition.

Ms Newhoudt-Druchen agreed with Ms Yako.

On the additional ground of revenge pornography, Mr Robbertse replied that this kind of conduct to a large extent overlaps with harassment. One can include anything private that is distributed to another, which will include private information, a person’s sexual relationships etc. One must also note that the definition is an open-ended definition, by virtue of 'including' that is used before the start of the various paragraphs. This means that it can be anything else. The conduct in (a) onwards merely clarifies what can be considered as emotional, verbal or psychological abuse. By all means, other conduct can be included and it is not a problem. However, one must take cognisance of the fact that it is already an open-ended definition. If there are further proposals to be included, the Department would do so. One must look at the other conduct, such as harassment and sexual harassment, which deal with some of the items raised. Sexual relationships should be included. If there was anything else he should add, he asked that Members make proposals and it will be included.

Definition of ‘harassment’
He did not deal with every aspect of the current definition on page 21; however, his concern with the current definition is conduct that a respondent knows or ought to know may cause harm. This requires that the respondent foresee the probability that their conduct may cause harm. In South African criminal law, if one looks at common assault; the test is usually what the victim subjectively foresees; namely, that harm may be caused. He submitted that the law probably needs to move away from the requirement of 'the respondent knows or ought to know,' and to merely state that it is conduct which the complainant perceives as conduct that may cause harm. The 'related person' aspects are removed from the definition to a large extent. This is mainly to do with the previous concerns about related person. In the new proposed definition of 'harassment’, there is probably a need to maintain 'related person' as harassment can be directed at a person in close relationship with the complainant and likely to cause harm to the complainant.

Proposed amendment to 'harassment'—page 22
The new proposed definition at (a) mainly retains the first paragraph of the current definition –following, watching, pursuing or accosting of the complainant or a related person. New conduct is included in (b)-(f) on page 23. The conduct in (b) is specifically recognised in other countries and is usually where the complainant has a study, which she usually locks and when she is not there, the respondent gains access to the private space. Overseas, someone flooded the storage capacity on another’s computer by sending hundreds of emails. This could constitute harassment.

The current paragraph (b) is deleted. Para (c) deals with the sending of items to the complainant.
The new aspects were read out. In (f) changes are made to ensure that the disclosure of electronic communications is not the only thing provided for. It makes provision for the same kind of communication without the use of cyber-space.

The second clause which is also marked (f) should be corrected to (g) – it deals with where a respondent discloses harmful communications in cyberspace or the real world to another person. This is why the definition of 'communication' is inserted—to provide for real-world distribution of malicious material. It is also why the definition of 'electronic communication' is amended to provide for the same thing in cyberspace.

Mr Robbertse replied to the concern about disclosing someone else's sexual relationships; saying to a large extent, these concerns would be covered under (f) or (g).

Mr Robbertse replied about revenge pornography, saying the Cybercrimes Act provides for specific offences regarding intimate images and revenge pornography. Under (f) and (g), conduct that violates or offends the sexual integrity of the complainant does cover such instances. Thus he did not think it was necessary to insert it specifically under the Domestic Violence Act.

Mr Robbertse noted that the new proposed definition of 'sexual harassment' means it omitted from the definition of harassment.

The Chairperson asked if sexual harassment was still part of the Bill.

Mr Robbertse confirmed that it was still a part of the Bill, and was inserted as separate conduct that amounts to harassment.

There were no comments.

Definition of ‘harm’
Mr Robbertse said that this is a new definition on page 24 as previously there was no definition of harm in the Act. It is now defined as 'any mental, psychological, physical or economic harm.' It is identical to the definition of 'harm' found in the Protection from Harassment Act 17 of 2011. Harm was not part of the definitions of conduct amounting to domestic violence. He noted that a problematic aspect of the definition relates to section 8(4)(b) of the Principal Act, which provides for arrest by a peace officer where there are reasonable grounds to suspect that the complainant is suffering or may suffer harm. Peace officers are in the position to determine mental or physical harm which may lead to discretionary enforcement of the powers to arrest. He submitted that it was not necessary to include a definition of harm, however it was up to the Committee to decide.

The Chairperson said that psychological and emotional harm is often glossed over and more time should be spent on it as it was very, very serious. For women in particular, these kinds of harm sometimes have more of an impact in domestic violence cases.

Ms Mofokeng said she was still concerned about what was raised about peace officers now that Mr Robbertse noted it. She asked what a peace officer is as South Africa has street committees, community safety and neighbourhood watches and at some stage, they all clash and one no longer knows who is a peace officer. In most cases, this becomes a problem in communities as some people are then not trusted. She asked that clarity be given.

Mr Robbertse replied that a person is appointed as a peace officer in terms of section 335 of the Criminal Procedure Act (CPA), which says that the Minister may appoint certain persons as peace officers in respect of certain offences and conduct. The term is also defined in section 1 of the CPA and includes a police officer as well as an officer appointed in section 335. A peace officer in the context of the Domestic Violence Act must be interpreted with reference to section 1 of the CPA.

Ms Mofokeng asked how many people have been appointed by the Minister as peace officers as she was concerned that they may create roles that do not function. If there are peace officers, they should be trained, and she asked where this training is covered.

Mr Robbertse replied one of his roles in the Department is to oversee the appointment of peace officers in terms of the CPA. Persons appointed are usually published in the Government Gazette. If he remembered correctly, about five years ago there was a rationalisation of notices that were published. The category of persons is specifically defined. In terms of the notice, it is specified that a peace officer meet certain requirements. It is usually the Minister of Police that determines what requirements must be adhered to before a person can be appointed as a peace officer, which includes training on the functions they must fulfil. Most of the persons appointed to date, were appointed for certain offences in certain legislation and for which they exercise mainly the same powers as SAPS. He would provide a list of all the peace officers appointed to date as well as the requirements they must adhere to before they can be appointed. The requirements are quite stringent and are almost on par with SAPS members.

The Chairperson asked if there were enough peace officers to implement the Bill.

Mr Robbertse replied that peace officers and police officers should be distinguished. He thought there were enough peace officers to implement the Bill. Section 3 of the Bill, in any event extends the Bill to peace officers who are not part of the SAPS, but also includes SAPS officers. This is quite innovative as powers that are not police powers are recognised to assist with implementation of the Bill. Yesterday, he had circulated a new innovative provision on domestic violence safety monitoring orders and, amongst others, peace officers and SAPS officers have a role to play here. He submitted that there are enough people. The reason for extending the Bill to include peace officers relates to rural areas as police may not always be readily available. There may, however, be peace officers as part of the community or who live there and are able to assist in the implementation of the Bill.

Ms Newhoudt-Druchen asked if the domestic violence victim contacts SAPS, a peace officer comes instead. Who would send the peace officer? If she contacted SAPS, she would expect a SAPS official to come. She asked who monitors or supervises peace officers, as the Minister appoints them. Given that emotional abuse is harder to identify than physical abuse, she asked if training can be given to police officers so they know how to deal with emotional and psychological abuse.

Ms Maseko-Jele asked if peace officers attend to police-referred matters. It was her understanding that peace officers are from within the community. If she referred a matter to the police, she wanted clarity on whether the police would send a peace officer.

Ms Mofokeng said she was not convinced by the answer on the role of peace officers. With the challenges faced by having many organisations, she asked from where peace officers come. She was sure peace officers were meant to be appointed from amongst communities. If one reports something to a police officer, who tells them to go the peace officer, how is someone meant to know that they appointed the correct peace officer in their area. She has worked in this space. She was not convinced and would never be convinced until she is shown more. If peace officers are appointed, she asked for the requirements for appointment as sometimes the people appointed were the very same people making life difficult for women.

Mr Nqola read the definition of a peace officer in section 1 of the CPA. The definition as it currently stands does not cover the sectors Ms Mofokeng was raising of community policing forum and all that. If the discussion goes back to the duty to report, anyone who experiences or is able to see domestic violence happening has a duty to report. The truth is are there actually enough peace officers to perform this duty. The truth is that those mentioned in the CPA as peace officers are not always accessible to South African communities. The purpose of the Act is to ensure that the country can deal decisively with GBV; which by its nature occurs in households. He asked if there would be an illegality if the Committee adds what Ms Mofokeng said to the CPA definition.

The Chairperson said that if this can be added, then the following question is that of training. Some defined may not need training such as magistrates, but if others were added, training would need to be addressed.

Mr Robbertse replied that when the police are called, the police must come and they cannot send a peace officer as they are regulated by different structures. For example, municipal police are prescribed peace officers in terms of section 335 of the CPA. People who execute certain functions in terms of the Liquor Act in the provinces are also peace officers. If the police are contacted, the police must come and they cannot send someone else. However, in terms of section 3 of the DVA, if there is an incident of domestic violence, any section 335-appointed peace officer may arrest a respondent if an offence is committed in terms of the section. Peace officers are limited to certain categories of people and must have certain prescribed training. He would send the notice through to the Committee. Other people such as street committees are not peace officers for the purposes of the Act.

It must be noted that delictual liability usually always follows where there are coercive powers. If a peace officer, acts outside of their recognised legitimate powers or functions, their employer will be liable for that conduct, similar to the police. Currently, not any person can be a peace officer and it is restricted to a certain person that serves a certain structure in terms of law.

The Chairperson said that this might need to be flagged and returned to as the three GBV Bills for passing need to be compared to what exists currently. The expectation out there is not one of merely tinkering with the system, it is to ensure that once the Bills are passed, there will be enough capacity to ensure that the people see justice being done in the area of GBV. Given this scenario, he asked how the Committee and Department can ensure there are enough trained people who will ensure that they do not act outside of their powers where delictual liability can arise; whist ensuring there is enough coordinated human capacity to address GBV. This might or might not be a matter of legal drafting. It might also be an issue of continuous oversight by both this Committee and the Portfolio Committee on Police. He thought that there should be a proper enabler in the legislation so that capacity is well-coordinated to assist in the implementation of the three GBV Bills. He asked for this to be flagged so that the Committee can deal with the concerns. He noted Ms Newhoudt-Druchen comment in the chat that Members need more information on peace officers.

Definition of ‘intimidation’
In the proposal on page 24, Mr Robbertse noted that intimidation can take place through conduct other than 'uttering and conveying'. This is currently the definition in the Bill. A new definition is therefore proposed.

There were no comments.

Definition of ‘physical abuse
Mr Robbertse said that all the conduct in section 1 of the Children’s Act is included. He did not think that it is necessary to add the language if it included the reference to the Children’s Act.

Mr Swart asked if smacking a child would be included in the definition.

Mr Robbertse replied that in the definition of physical abuse: 'any act or threatened act of physical violence.' The mere smacking of a child is either threatened and where executed, it amounts to physical violence and would be included in what is currently proposed as physical abuse. One could even go as far as to say that even a perceived threat of physical abuse would be included.

The Chairperson asked if there was any case law on this point. If there was case law by the Constitutional Court the Committee would obviously be bound, however, he thought that it might be overstepping in that provision. He would say that unreasonable abuse of a child would be unacceptable. However, the way Mr Robbertse responded might make child-rearing very difficult.

Mr Swart said he understood what the Chairperson was saying and said that the broadness of the clause concerned him. The challenge is clearly where it goes beyond reasonableness and therefore amounts to assault in the common law. There is no Constitutional Court ruling, although he thought there was a High Court ruling, which would be limited only to the area where that decision was given. He wanted to avoid unintended consequences. He was fully supportive of a parent that goes beyond the scope of reasonable chastisement, facing assault charges as this was established criminal law. However, when the provision goes so far as to include 'threatened', such that if a parent says to their child 'if you don't behave yourself, I'm going to give you a smack' amounting to physical abuse may result in unintended consequences which should be avoided. He knew that drawing the line was very difficult as there were many parents, guardians and step-parents where there could be abuse taking place. He wanted to urge caution in the approach.

There were no further comments.

Mr Robbertse said he believe that the Constitutional Court did abolish chastisement or hitting of another person. As far as he can recall, Mr Swart referred to a High Court case, however there was a Constitutional Court case on reasonable chastisement. It was to the effect that any physical abuse is unconstitutional. If one looks at the argument of the Court in that case, even threatened physical violence is something that must be regarded as unconstitutional. He would get the case for the Committee. He confirmed that both physical violence and the threat thereof were restricted by constitutional bounds. Coercive behaviour is something similar; yet every parent uses it to keep their child on the right path. Controlling behaviour is also similar. One could argue that if there is a need to limit physical abuse, then controlling and coercive behaviour also need to be limited. He submitted that this was probably not necessary, however if one argued in favour of the specific exclusion of children for a parent; it may become problematic.

The Chairperson said that like Mr Swart, he was concerned about the unintended consequences and he asked that this be flagged and the case law be looked at. If controlling behaviour and threats are limited, how then is a parent meant to discipline a child?

Mr Swart agreed with Mr Robbertse and recalled that there was a Constitutional Court case. Although Members may not necessarily agree with it, he shared concerns about the broad definition in the context of parenting.

The Chairperson asked if it was a ruling or an obiter dictum.

Mr Robbertse replied that it was a ruling.

Mr Swart said he thought it was a specific judgment following a high court ruling. It was a controversial judgment, but if he remembered correctly, it upheld the High Court ruling that held the Common Law rule of modest chastisement to be unconstitutional. It would be good if Members could look at the cases again and see if there was any way of limiting the definition in the Act.

The Chairperson agreed. As a Committee, however, it would not want to pass anything unconstitutional that could be challenged. He asked Mr Robbertse to circulate the case to the Committee so it can see if there is any space to manoeuvre. If not, he felt important to ensure that government runs massive education around this. If there is no mass education; one might run the risk of criminalising the whole society.

Definition of ‘related person’
SAPS had previously raised concerns about this definition on page 26. Under 'Discussion (February 2021)' the definition as inserted by the Bill was retained. It was proposed that 'or any other person in a close relationship' be excised from that definition. If the 'related person abuse' definition is accepted by the Committee, this definition can be kept as is.

Definition of ‘related person abuse’
New conduct that relates to domestic violence is inserted through the definition of 'related person abuse ‘and is where:
(a) the complainant is threatened with the causing of physical violence to or damage to property of a related person;
(b) a related person is threatened with violence or causing damage to property; or
(c)where an act of violence or damage to property of a related person is committed;
where such actions can be regarded as abuse to cause harm to the complainant.

Therefore, if 'related person abuse' is retained in this form, it is qualified that this abuse must cause harm to the complainant. This will have the effect that the complainant in certain circumstances can apply for a domestic violence protection order and she can do this only to protect her against abuse. He asked Members to remember that amongst other things, a court may also prohibit the respondent from damaging property or harming another person who is not necessarily a complainant. This is one option to address the 'related person' issue: through new conduct that amounts to domestic violence.

There were no comments.

Definition of 'residence'
Mr Robbertse had already discussed the new definition and was not going to deal it again.

Definition of ‘sexual abuse'
Mr Robbertse said that this definition refers to a child as contemplated in the Children's Act. In the Children's Act, sexual molesting and assault or allowing this to happen; and various other actions in (a)-(d) are specifically defined as constituting sexual abuse of a child. All the conduct in (a)-(d) are sexual offences in terms of the Criminal Law (Sexual Offences and Related Matters) Act; which is by implication, part of the definition. He also submitted that the words 'or in the case of a complainant' 'the Children’s Act 2005,' can be omitted from the Bill. The only problem is that the Children's Act refers to 'sexual molesting,' which is something similar to assault. If it is not assault, however, 'sexual molesting' is the only conduct not catered to by the Criminal Law (Sexual Offences and Related Matters) Act.

There were no comments.

Definition of ‘sexual harassment’
As indicated earlier, Adv Robbertse noted that 'sexual harassment' has been excised from 'harassment' and is retained as specific conduct that amounts to sexual harassment. The amendments indicated in red are effected to the current definition. The main amendments to the clause include the substitution of the word 'respondent' for the words 'person in a domestic relationship with the complainant' and it also omits 'related person' in the rest of the definition. He thought Ms Clark had mentioned that (b) relates to a work situation, as in the Protection from Harassment Act and was taken over into the DVA. This behaviour was harassing in nature and must be retained in the definition.

There were no comments.

Definition of ‘spiritual abuse’
The Department has inserted in (d) on page 30 referring to the use of religious texts to justify abusive behaviour against a complainant or related person. This was done mainly at the insistence of Ms Clark. The justification is to the effect that the use of religious texts to justify certain abusive behaviour, even when it relates to a related person; may still cause psychological and emotional harm to a complainant.

Ms Clark explained in reference to 'spare the rod and spoil the child' that spiritual texts are used to cause the complainant to comply with certain actions of the respondent. This is why she thought that it was important to include 'related person' here. She thought that for each section, one should consider if it is appropriate to include 'related person' or not.

Mr Swart said he had significant problems with the term 'spiritual abuse'. He did not think that the Department had properly considered the submission by Freedom of Religion South Africa (FORSA), which represented more than 6 million South Africans. The very example that has just been given indicates how one needs to be very careful when it comes to the inclusion of the definition of 'spiritual abuse'. Whilst he appreciates that spiritual abuse might take place, he faced a significant challenge if courts then start looking into doctrinal religious texts which the courts have not done in the past. If one looks at what it means in the broader context: harm, emotional, verbal or psychological; he thought that there needs to be a way to limit whether 'spiritual abuse' is to be retained. This is especially since FORSA submitted that this is covered by the broader definitions of 'coercive behaviour' and in other acts such as the Intimidation Act, the Protection from Intimidation and Harassment Act., the Promotion of Equality and Prevention Act as well as Constitutional Court decisions. He wanted to raise a big red flag on the inclusion of 'spiritual abuse'. The Constitutional Court in the Fourie judgment said that the country has to be very careful in not creating a situation where people have to choose between their faith and the law. He used the example of a Roman Catholic pastor or imam who might speak from a pulpit against abortion. Would it be the case that this person could be accused of spiritual abuse for someone who has had an abortion. He was very concerned about unintended circumstances and urged caution. For the ACDP, this is a big red flag.

The Chairperson asked if other Members wanted to contribute. He also asked Mr Swart to bring a different proposed definition catering to his concerns.

Ms Swart said he would do so. His main question was if the current definitions do not already cover spiritual abuse as a matter of control. If this provision were to be deleted, would that have any negative impact. He asked if it was not covered in other laws or in this Act. The FORSA submission was that the concerns raised about spiritual abuse were already covered in the general definitions in the Bill as well as in other Acts. This was the specific question which Mr Robbertse was welcome to come back to the Committee on.

Ms Newhoudt-Druchen said that she understood what Mr Swart was raising, however, after the FORSA submission, the other submissions were very strongly of the view that the definition needs to stay. It is very sad to say that in South Africa, many abuses are happening in religious settings. She referred to the Commission on Cultural, Religious and Linguistic Communities (CRL) who had conducted investigations about abuse by religious organisations. She was of the view that spiritual abuse should remain in the definition. Perhaps Mr Swart can bring a proposal on phrasing.

Ms Mofokeng agreed that spiritual abuse has to remain.

Ms Maseko-Jele was not sure that she fully understood Mr Swart.

The Chairperson explained that Mr Swart wanted to know if the current definitions deal with spiritual abuse in the Bill through other definitions

Ms Maseko-Jele agreed with that the definition should stay, but that it should stay in such a way that it satisfies Mr Swart's concerns.

Mr Robbertse considered the other definitions, saying that it may amount to coercive behaviour, however, it is not specifically indicated. He did not think that it could be included in controlling behaviour, as it relates to isolating a person; exploiting their resources and depriving them on the means to independence. 'Regulating' their behaviour can arguably cover it; however, it is not specifically referred to. The definition of 'damage to property’ does not cover it. Other definitions that might be relevant such as 'harassment' does not accommodate it. Emotional, verbal and psychological abuse might cover it however it is not specific behaviour that relates to certain conduct where religion is used as the basis for abuse. Neither is it included in sexual abuse, sexual harassment, intimidation or physical abuse. He submitted that it was not catered for in the other definitions per se. On whether it should be retained, he would like to look at other countries before he makes a written submission on this. He hoped to propose some additional texts which might address this.

The Chairperson thanked Mr Robbertse and asked that he and Mr Swart provide the Committee with various options. He said that they all agree that there is a problem and that the Committee merely needs to decide how to deal with it.

Ms Maseko-Jele spoke to emotional abuse. Using children as an example, children do not have the choice about attending certain religious settings. She referred to the example of a cult which prohibited children from going to school because they believed that the world is about to end. As a result, the children did not go to school and must stay at home and wait. Children, with such parents, do not know what is wrong or right. The issue could be viewed from an emotional abuse perspective or from a religious setting perspective.

Mr Swart said he appreciated the point just made. The very answer to that is there are existing laws. His concern was that there were sufficient existing laws. Not letting children go to school is a crime in terms of the Schools Act. Hence, he wanted to ensure that the Committee was not canvassing a point which is already covered in law. He acknowledged that Mr Robbertse said spiritual abuse was not specifically covered in the other definitions which is why Members wanted it included. He would work on a draft for the Committee to consider.

The Chairperson said the Committee would flag this. Both Mr Swart and Mr Robbertse would apply their minds to it. Members all agreed that there is spiritual abuse and it needs to be addressed. Whatever intervention is needed, it should ensure that there are no unintended consequences. The challenge with legal drafting is that one must come up with a solution to a problem that addresses all challenges and protects all other rights so that further problems are not created.

Substitution of section 3 of the DVA: Arrest by a peace officer without a warrant
Subsection (1) gives a peace officer a discretionary power; and secondly, it is based on a reasonable suspicion that a person may have committed such an offence.
Subsection (2) similarly provides that a police officer may arrest someone reasonably suspected of committing an actor of domestic violence, where physical violence is involved.

SAPS raised concerns such as what if one of the people acted in self-defence plus the concern that a person cannot be arrested if the suspect is not at the scene of the domestic violence. To address the first concern, which is the biggest one, deals with the discretion afforded in subsection 1 and the obligation imposed in subsection 2 that a peace officer must arrest the person.

Self-defence concern
This red section on page 35 may address the concern foreseen by SAPS where one of the persons acted in self-defence by doing away with the ground of 'reasonably suspect' and to substitute it with 'reasonable grounds to believe.' The latter is a higher standard. He would not go through the cases; however, it was explained in footnote 3 which speaks to what considerations constitute reasonable grounds for the belief that an offence was committed.

Off-scene suspect
Where a suspect is not on the scene of the domestic violence, this has not yet been addressed and needs to be flagged. It was a safeguard to ensure that when the police come to a scene of domestic violence, where they do not have an affidavit or where there is no criminal charge laid, they cannot arrest someone that is a kilometre from the domestic violence incident. He could not find the solution to this. However, it can be provided for in law and would not be a problem.

Powers of the police to arrest
If both subsections 1 and 2 are amended and 'reasonable suspicion' is substituted with 'reasonable grounds to believe', it can address this concern by SAPS.

Reference to 'a person'
The reference to 'a person' in both subsections 1 and 2, is not necessarily the respondent. There are two options here, firstly, it can substitute ‘respondent’ for 'a person.’ This will mean the person who is in a domestic relationship with the complainant. It will also restrict the ambit of the clause to a certain category of person. In some instances of domestic violence, third persons may be used to commit an offence of domestic violence. If 'person' is changed to 'respondent' in subsections 1 and 2, the police cannot arrest a third party used to commit the domestic violence offence. Depending on the decision in this clause, section 40(1)(q) of the CPA is amended and whatever decision is taken on the clause, similar amendments should be affected to the CPA in the schedule to the Bill.

Ms Newhoudt-Druchen asked about when the person has left the domestic violence scene. If the victim calls the police what happens if the person who did the violence has left? The police come and a charge is laid. Would it be possible if there is an affidavit if there is a possibility for arrest where the person has left the scene. During public hearings, she was concerned to hear about self-defence. What happens where a victim acts in self-defence or where a woman’s child intervenes to protect the victim? Are they all arrested? Thirdly, where a victim has passed away and in the investigation it is discovered that a third person was involved. What happens in a situation like that?

Mr Robbertse replied that where offence has been committed and a person runs away from the scene of domestic violence; the police can apprehend that person and arrest in terms of section 41 of the CPA. The provision read that 'where there is a reasonable suspicion that a person has committed any offence listed in Schedule 1; that person can be arrested without a warrant'. Where the victim has passed away, it would constitute murder and a suspicious person may be apprehended in terms of the CPA. He asked that Members remember that the clause indicates that 1) it must be an offence that is also an incident of domestic violence and 2) it must be an offence containing an element of violence that is also an incident of domestic violence. The police currently have the power to apprehend a suspect where a charge has been laid against a person; if they receive information or have a reasonable suspicion that an offence was committed by a person who is no longer at the scene of the domestic violence incident.

Ms Clark referred to the use of 'person' or 'respondent' particularly on the self-defence problem; if you have the word 'person' there, this could include the complainant as well as the respondent. This means that both the complainant and respondent could be arrested as it currently reads. The use of 'respondent' limits this. However, if one is wanting to address a respondent using third parties to abuse the complainant, to get around the law, one could also extend the definition of domestic violence to be direct or indirect actions which is currently used in the Protection from Harassment Act. This would then address the use of third parties.

There were no further comments.

Inserting section 3A: Entering of a private dwelling
This clause deals with entering a private dwelling for the purposes of obtaining evidence. It is proposed that 'private dwelling' – even in the heading – should be substituted with 'residence.' This is to keep the terminology in the Bill the same.

There were no comments.

Substitution of section 4 of the DVA: Application for protection order
This deal with the initial application. Mr Robbertse had previously indicated that there is probably a need to do away with any provision in the DVA that prescribed certain means for how to apply for a protection order. He had previously indicated that the proposed subsection (1A) can be removed. However, he now thought it important to note this so that the Department can gain legislative authorisation to provide for online applications.

Proposal (February 2021)
This proposal in red on page 38 is for the substitution of ss 1 with clause 1 and (1B). The reference to 'form and manner' ensures that electronic applications can be submitted to a court. To explain this, a new section (1B) is proposed to clarify the procedure.

Ms Mofokeng thanked Mr Robbertse for the amendment to include both physical and electronic means. She asked about jurisdiction where people run away to another province to open a case in another province, she asked what is to happen in these cases.

Mr Robbertse replied that one can be in Pretoria and apply for domestic violence that took place in Cape Town. However, the electronic address must be within the limits of the jurisdiction of the court having geographical jurisdiction. There needs to be some kind of restriction on this in how far you can go. If the domestic violence is committed in Cape Town and one applies for an order in Pretoria, then all the witnesses need to come up to Pretoria as well as the respondent since you are now giving jurisdiction to a court where the incident did not occur. This will prejudice the respondent, witnesses and even the state which will have to pay witness fees. One can apply electronically but application must be made to a court having jurisdiction.

Ms Clark referred Members to section 12 which deals with jurisdiction. In the current Act, it is very broadly defined so a person may physically apply from any area, even though the domestic violence happened, for example, in Cape Town. There will be logistical considerations on the lack of physical evidence, but the current rules allow the application to be made. She was sure that Mr Robbertse would get to it but he had even further expanded the area in terms of residence in section 12.

Section 4(4)
Mr Robbertse said that this provides for where reapplication for a domestic violence interdict is brought and where the complainant does not bring this application but another person brings it on their behalf; that person must consent to such application being brought on his or her behalf.

Discussion (February 2021)
The proposal inserted on page 40 deals with children. In certain instances children are vulnerable and there must be a provision that allows another person to bring an application on behalf of a child – this is not necessarily even with the consent of a child. One must remember that children in some instances may not consent to the bringing of an application on his or her behalf. Although it was in the clause before it was amended; he wanted to bring part of the previous clause back; which allowed another person to apply for a domestic violence interdict on behalf of a child without the child's consent. This is why he inserted 4(4)(a). One can extend it to a child up to 18 years of age. He put down 16 years of age; but it was up to the Committee if it agreed to the clause, to determine the appropriate age for the child. He added a qualifier in 4(4)(a) that a court must consider the application to be in the best interests of the child; which is the standard in the Children's Act.

Ms Maseko-Jele agreed with the choice of 16 years of age. However, she gave the example of where a 13 year-old child is raped and did not want it to be known that this happened to her. She was not sure how these children can be assisted. You will find that this child will feel exposed because the adult told people what happened. A 16-year-old can speak for themselves; but the law states 15, 14, 13 year-olds are still under parental care. However, they can hate the parent for reporting the incident to the police without their consent.

Ms Newhoudt-Druchen referenced (b) on page 39 includes 'mentally retarded.' She said this term is no longer used and is politically incorrect in the disability sector. She asked that it state 'mentally disabled' instead of 'mentally retarded.' She assumed that if children are mentioned that this covered all children with or without disabilities.

Mr Robbertse replied that some people do not want to have certain facts made known to the public, especially children. However, if a child endures domestic violence, must an adult shut their eyes and say all is well if a child does not want to make that decision, does one abide by the decision of the child? In any case the making known of certain information in a domestic violence protection order can be controlled by legislation. It was dealt with in the Bill later on and they would get to it. There was something similar in the CPA, where one could state that the identity or information about certain proceedings may not be disclosed. The court can actually put a plug on the distribution of information. However, children are vulnerable and, in some instances, they endure domestic violence mostly because they have no other place to live. To require that such a child must give consent is problematic, especially where the other person in the domestic relationship actually wants to help this child.

Ms Clark said that for a child under 13 who has been raped, there is a mandatory reporting clause in section 54 of the Sexual Offences Act. Due to the obligation to report to the police, there is no discretion for a sexual offence. Currently the Act provides a protection order for a child, defined as someone under the age of 18. This particular clause speaks to the fact that a child can actually bring an application in their own name; irrespective of age. Someone would obviously have to support them; however, they do have direct access to the court. The age of 16 has been proposed but it might introduce interpretational problems. It may be an option to simply revert to 'child' in this case. Naturally, the presiding office would hear the child's point of view and may then consider if the child wishes to proceed or not. This is dealt with in chambers and not in open court.

Mr Robbertse said that Section 4(4) is amended to include 'without the consent or assistance of a parent or guardian'. It is usually a parent or guardian who must provide consent if legal proceedings are to be instituted. However, in terms of the Children's Act, a child may litigate in certain instances without such permission.

There were no further comments.

Section 4(5)
At the bottom of the page, he removed the reference to online applications as they are already dealt with elsewhere and therefore this manner of making application did not need specific reference.

Capturing of documents in the repository
Through the DVA, there are references that certain historical documents must be saved on the repository. Thiis should be regulated through regulations to ensure that something like an online portfolio is created and that only new documents are saved on the portfolio. This is something the Department would bear in mind in finalising the Bill.

Clause 3
Page 43 contained the next amendment. The amendments contained on this page were mainly draft in nature. The whole clause should probably be substituted to ensure that certain actions are structured at the appropriate place in the clause. He would not speak in detail on this but would redraft this to make provision for the comments on the side of the document.

Issuing of a final protection order
The current provision does not make provision for the return of service. On page 59, this return of service was catered for at (6A). He proposed the substitution of (b)(i)-(iii) on page 58. This captured everything that must be done.

Section 6A
Mr Robbertse said that although he re-drafted 6A on page 60, he was concerned about the reference to the Minister and felt the Director-General should be substituted.

Ms Mofokeng agreed that things might be lost if it is left to the Minister.

The Committee agreed.

Section 7
Mr Robbertse said one must note that this section depends on how the law is going to deal with domestic violence. If 'related person' is regarded as a separate form of domestic violence not against the complainant; or if the DVA deals with related person domestic violence as domestic violence against the complainant; it may need to re-draft this such as the new section 7(1). Although (f) is deleted; it should be retained and should not be considered deleted. Even if the option of related person abuse is allowed, a court must be able to make certain orders prohibiting the respondent from committing certain conduct against a related person. On page 64, 5(a) involved the insertion of 'contact details' of the complainant or related person. Essentially, one must prohibit making available electronic contact details like email address or cellphone number of a complainant.

Section 8
Mr Robbertse wanted to extend the measures to be taken into account by SAPS members. The current Act limits it to risk of safety, health or well-being of the complainant or related person. He proposed the inclusion of damage to property when considering the arrest of the respondent.

Section 9(1)
Page 69 covered when a firearm may be seized. He wanted to extend (a) to include ‘any other person' as it is currently restricted it to threats by the respondent, who intends to kill or injure him or herself or any person in a domestic relationship or a related person. He did not think it would cause harm to insert 'or any other person' to broaden the categories mentioned.

Ms Mofokeng agreed with the addition of 'or any other person,' because sometimes, when women get final protection orders; many are not killed by the partner; rather they send somebody else. This was proper as the Committee still needed to discuss the monitoring of women after they receive a protection order. It should not be that one gets it and it is done. How is this monitored? Research has shown that most women are killed immediately after getting protection orders.

Section 13 : Service of documents
Mr Robbertse said the next major amendment was on page 73. Previously in the Bill's proposed section 4, there were provision to the effect that where a complainant and respondent share the same residence, documents must be served in person on the parties. This is inserted here as (b) on page 73. The current (b) is renumbered as (c) and provides for electronic service. There are shortcomings to electronic service. The Bill should first recognise physical service at a place or on a person and only if this does not work, may one resort to electronic service. The problem with electronic service is determining how return of service is provided for. Sending a protection order to someone's email address does not mean that someone actually received the document and one cannot ensure that service did take place. Therefore as a first option, physical service should be recognised and only in instances where physical service does not work, may a court make an order to the effect that the documents may be served with electronic service. He asked if there were comments as it was a problematic aspect.

Mr Nqola asked how return of service would be ensured with electronic service.

Ms Mofokeng said that hers was the same concern. Upon physical service failing, electronic service is available but this too may fail. She asked what the next option would be.

Mr Robbertse replied that this should be left to the court to decide as a notification that an email has been received and read could be considered service. However, the court needs to decide what it would regard as sufficient service in certain circumstances. This is why he wanted to remove electronic service.

Ms Mofokeng again asked what is to happen where physical and electronic service fail. Can there be publication on a website of people who are being called to appear before court. She agreed to let the courts decide this.

Ms Maseko-Jele asked if the Committee could give a deadline for the courts to develop this.

The Chairperson said that the Committee cannot give the courts a deadline as the right case needs to come up. When courts are allowed to develop jurisprudence, this usually happens over a long period of time as there may be a matter which goes to the High Court, then a full bench of the Supreme Court of Appeal, followed by the Constitutional Court. This is part of how jurisprudence is developed and it would be difficult for the Committee to set time frames.

Ms Maseko-Jele asked if there was another option apart from the courts.

The Chairperson said it is something which Members should be thinking about and when the Committee returns to go through the document a second time. If it wants a solution now, the Committee must then come up with a formulation in the legislation. If it chooses for it to develop organically as part of the court's jurisprudence, then it will have to wait some time for it to develop.

Ms Mofokeng said she withdrew her acceptance that the courts develop this. Considering the processes, the Committee might be failing victims. It should revisit this issue and see what other options it can come up with. It should not rush this for now.

Mr Robbertse replied that electronic service is a second option that is given to a court. However, a court must ensure that a protection order is served. Therefore, if it cannot be physically served on the respondent, the court must tell the clerk of the court how it must further be served. If one method of service fails, the courts can move to a second, third, fourth or fifth option. The court's discretion is not restricted. He did not think that it was really necessary at this stage to develop something that is very innovative. Some countries accept electronic service in limited circumstances, but he did not think that in South African law, service of a warrant on somebody else has been accepted as a direct means of service unless the court has directed otherwise. There are instances where courts did allow electronic service of documents, but this was regulated by the court's order, which must state what sufficient service is.

The Chairperson said that the issue was much broader than that. He referred to electronic delivery such as email or Facebook messages where people say that they did not open their emails or their Facebook messages. He asked if there were innovative orders in other jurisdictions which the Committee could think about.

Mr Robbertse replied that these jurisdictions mostly deal with these options within the context of the courts; however, he could provide this. This brought them to the end of the Bill.

Domestic violence safety monitoring notice (February 2021)
Mr Robbertse said this contains a number of additional clauses that could be included in the Bill, which he drafted. It deals mainly with ensuring that SAPS or peace officers have powers to monitor the safety of complainants in cases where the complainant and respondent share the same residence. From the moment police visit a scene where section 3 can be applied; where the police can either arrest or not arrest the respondent; right until the stage where the complainant applies for a domestic violence protection order—the complainant is basically unprotected unless the court issues an interim protection order. If the court does not issue an interim protection order, the documents must be served on the respondent who must appear on the return date; or where there is an interim protection order, the parties must appear on a return date.

Many instances of domestic violence, as already pointed out, actually occur once it comes to the respondent's attention that the complainant has applied for a protection order. The proposal is therefore that the safety of the complainant may be monitored – from the stage that there is a domestic violence incident right through to the time that the final protection order is issued and even after that.

Clause 3B(1) makes provision for a safety monitoring notice that is issued in one of two ways, either by a court or by a peace officer. In 3B(2), the complainant may at any stage when instituting proceedings for a protection order apply for a domestic violence safety monitoring notice. When the court issues a final protection order a complainant may also apply for such an order. The basis for a court issuing a domestic violence safety monitoring notice is listed under Clause 3B(2)(a)(i) -(iii) as there being reasonable grounds for believing that the complainant and respondent occupy a joint residence and that a complainant fears for his or her safety.

A domestic violence safety monitoring notice issued in terms of 3B(2) must be served on the station commander of the police station as well as the respondent. As pointed out in 3B(2)(b), the station commander must cause the police to contact the complainant at regular intervals and may visit the complainant's residence at regular intervals. It gives the police certain powers – where there is resistance or where the person prevents a police official from seeing the complainant – to enter the residence using as much force as reasonably prescribed to enter and to communicate in private with the complainant and to observe her. This is the crux of the court notice. The notice is of a limited time period and expires at a certain time determined by the court.

Clause 3B(3) makes provision that a peace officer at a domestic violence scene in circumstances contemplated in clause 3(1)(a) and (2), must ask the complainant if she would like to apply for a monitoring notice. If the complainant and respondent share the same residence, a notice can be issued on the reasonable belief that the complainant fears for his or her safety. Joint residence is quite important here. If one looks at the CPA, it allows the police to enter a residence if the occupants of the residence or another person in control of the residence give consent to such entrance. The notice works on the same basis since the complainant and respondent reside in the same residence. The complainant may obviously give permission to be monitored and that certain persons may access the residence to see if she is alright. A notice issued by a peace officer is of a limited and interim nature and it expires at 12:00 on the next court day. A peace officer can only issue a notice after court hours. Interference with the powers of peace and police officers is criminalised. It is also criminalised to prevent a complainant to show themselves to such an officer. It is also an offence if other people do not want a complainant to communicate in private with a peace or police officer.

This is a basic draft and could be extended to circumstances where there is not joint residence. If the complainant gives permission for monitoring; the police can access her residence and check on her. He proposed a new provision be included in section 3 to provide that at the domestic violence incident in section 3(1) where the respondent is not arrested; it must be an obligation for the police to inform the complainant about the notice and give the complainant the form to fill out.

Mr Robbertse qualified that he had not consulted SAPS or other functionaries about this proposal. Secondly, it may have human resources and financial implications for the police and for peace officers. He asked the Committee if he should take this forward and consult on it or include it in the Bill. It was in the hands of the Committee.

Ms Maseko-Jele asked why there is a need to apply for monitoring when there is already an indication that there is danger. She asked if once a complainant lays a complaint, they do not already qualify for monitoring. Why was there a need to apply again for monitoring? It may be that Mr Robbertse says it depends on the degree of danger and she asked him to explain. Where a peace officer talks to the complainant secretly, without the respondent, she feared that this would cause more problems for the complainant as it would raise suspicions on the part of the respondent. Some domestic violence cases are due to jealousy, though not always. She asked if the secrecy aspect would not cause a problem if the respondent thinks the woman is now talking with another man where the complainant is a woman and the respondent a man.

Ms Mofokeng agreed because getting a protection order means that you are not safe. The fact that police should check in on the complainant worried her as there is already a challenge for police who state they do not have a police van or car available to go there. How sure was it that this system would be a success? Last year, a police officer was killed attending to a domestic violence call. She did not know if the monitoring plan aligns with what had been experienced before. The Committee needed to look at this and apply their minds better. However the proposal failed victims.

Mr Robbertse replied that if one obtains an interim protection order, there is no one to monitor what happens to you after receipt of that interim notice. You could be severely beaten or even killed. The respondent is made aware that the police are going to monitor the safety of the complainant. If the Act is relied on as it is, even if there is a protection order, there is nothing available to a complainant to ensure someone is monitoring her safety. This is a problematic aspect of the DVA.

It was innovated as a way to provide some measure of protection to complainants who have not yet applied for a domestic violence interdict, after the conduct referred to in section 3(1) and (2). In instances where this is served at the joint residence, this would help monitor that a complainant is still alright. This is not in the legislation of other countries; it is something new and innovative.

Ms Mofokeng said she was listening carefully to Mr Robbertse. She asked why there cannot be a clause noting if a woman was a first-time complainant or not. She knew of a woman with five protection orders. There is nowhere in the system that tracks the number of times someone applies for orders. These women have no way of holding serial abusers to account. Monitoring would fail if the sector does not know what it is doing. It can come up with best law now, but if it does not properly monitor how many times a woman has opened up a domestic violence case and against whom, it will not help. Gaining clarity on this will clarify where one goes with the monitoring notice. This was her suggestion.

Ms Maseko-Jele said that Mr Robbertse should not feel bad as it was a good idea. It was innovative and this is to be encouraged in officials. She appreciated what he did as it gave Members something to talk about. What needed to be done was to polish the idea and agree on how to ensure that it works. As Ms Mofokeng said, some people are sitting with more than five court orders. There has to be a clause on monitoring as the Committee wants monitoring to happen. She was not sure if she agreed with the idea to indicate if it was a first or second application as women tend to keep quiet for a long time, and when they decide to go to the police, the situation can be very serious. She wanted the idea to be kept so it did not disappear.

Ms Mofokeng clarified that she was more concerned about cases where people are serially reporting domestic violence and yet are not monitored.

The Chairperson said that since this was an innovative idea, parties take time to think about it. There were two items needing to be done. Firstly, identifying issues that need to be incorporated into the law. Secondly, issues which need enforcement which will be part of the Committee's continuous monitoring of how the Department is implementing the Act and ensuring continuous improvement in the quality of service provided to victims of domestic violence. They should consider to what extent the Department should report to Parliament on the implementation of the monitoring and evaluation model, if it is agreed on. There need to be two processes: 1) what should be in the Bill and 2) what should form part of Parliament's oversight of the Department.

The Committee is not yet there and would return to the monitoring aspect. He asked that Mr Robbertse and his team help the Committee ascertain what should be in the Bill, how it should be crafted to form part of the Bill and what is the mischief it seeks to deal with. This would take the Committee forward. Taking into the consideration what Members had already raised that even the best endeavours do not really deal with the problem. The Committee wants a solution that is workable and able to be enforced as lofty ideas will not help the problem unless they are implemented. Ms Maseko-Jele was correct in saying that there was a need to continually embrace innovation and ensure that it is part of the legislative and oversight processes.

He told Members the Bill would have to be cleaned up, taking into consideration all that has been raised today. The Bill would return and the Committee can satisfy itself that it addresses the issues raised and that it is up to standard. Given all of this, the programme was quite tight. He had thought that it would not able to deal with everything but it had managed to. He suggested that it not meet the next day so Mr Robbertse's team could work on the Bill. He thanked them for their hard work. They will deal with the SAHRC interviews and reserve time to deal with this Bill again next week Tuesday and Wednesday after the interviews. He asked Members what they thought about this point.

The Committee agreed.

The Chairperson thanked Mr Robbertse and his team for its hard work as the Bill would take the better part of next week to work on. There would be the SAHRC interviews the next week which might be very long. The Committee may have to apply for Members not go to plenary sittings next week, and to reserve the evenings to go through the Bills to ensure they are in line with what is expected of Parliament. Although they are chasing deadlines, the Committee cannot do this to the detriment of passing a quality Bill. If it cannot be completed this term, it would have to apply for an extension, however this was still the goal. He asked that the Committee Secretary to circulate the legal opinion received on the Traditional Courts Bill, so Members can go through it. He was informed that Cabinet had also approved the Land Courts Bill. He was not sure if Parliament had already received it. If it had, it would be important to schedule it for the next term.

The Committee agreed to meet after the Subcommittee meeting on Friday 5 March on the Criminal Law (Sexual Offences) and Related Matters Amendment Bill from 14:00 until 18:00. The Chairperson noted it had made a lot of progress with that Bill and might finish it on Friday.

The Chairperson thanked Members and the team for their hard work and adjourned the meeting.

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