Domestic Violence Amendment Bill: deliberations

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Justice and Correctional Services

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

Video: Portfolio Committee on Justice and Correctional Services, 11 March 2021

The Portfolio Committee on Justice and Correctional Services met on a virtual platform to deliberate the Domestic Violence Amendment Bill.

The Committee had previously suggested certain amendments to the working document which had necessitated revisions by the Department of Justice and Constitutional Development. In particular, the text in the document had to be cleaned up and the Department had been instructed to refine the Domestic Violence Safety Monitoring Notices. The Department presented the Domestic Violence Act Amendment Bill: Working Document, dated 9 March 2021, which was the cleaned-up document. The Department offered one or more options in each case where definitions had been amended.

Provision had been made for the Domestic Violence Safety Monitoring Notice to be included in the index as section 4A. The Bill would provide specific instructions on how data relating to domestic violence was to be captured so that it could be printed in the appropriate format for easy use in the courts. The definition of 'coercive behaviour' was finalised.

The proposed definition of ‘controlling behaviour’ was met with some concern. A new definition on “communication” with particular reference to communication that resulted in harassment elicited extensive discussion on the use of untraceable cell phones and computers at internet cafes and the current measures to address those concerns. Such issues were addressed in the Regulation of Interception of Communications and Provision of Communication-related Information Act but owing to shortcomings in the Act, it was currently being amended.

The Department of Communications and Digital Technologies informed Members that some of the current concerns regarding tracing electronic communication and managing small businesses selling cell phones and sim cards would be addressed in the Department’s Digital Technology Master Plan which would be extensively discussed in the economic cluster. A government-wide response was required. The proposed Bill defined “communication” as anything that was shared in the act of harassment and referred to the Criminal Procedure Act. The SA Law Reform Commission, confirmed that police investigations were using the CCTV cameras at internet cafes to place people at specific computers.

The definition of damage to property in the Amendment Bill received extensive attention. One option specifically referred to harm, or threats to harm, a household pet, but the Committee determined that such an action belonged in the emotional abuse section. The Committee approved a broader, more encompassing definition that would refer to all forms of property, even clothing and motor vehicles.

A reference to disability was rejected by all Members as it implied that all persons with a disability were mentally ill. The Department was instructed to consult with the Department of Women on the matter.

The amendment to a paragraph in the definition of a “domestic relationship” relating to the place of residence created difficulties for Members until it was clearly determined that there had to be a distinction between the Domestic Violence Bill and the Gender Violence Bill. Another paragraph in the same definition related to children who were intentionally exposed or subjected to behaviour that amounted to abuse in a domestic relationship. The concern was that there might be unintended consequences for parents whose threats to punish a child’s behaviour could be interpreted as domestic violence.

The Committee agreed to consult with the drafters of the Amendment to the Children’s Act to ensure that the new legislations would be in alignment. The definition to “domestic violence” was not finalised and the Committee would receive further input at the next meeting on the Domestic Violence Bill which would take place in the following quarter.

Meeting report

Opening Remarks

The Chairperson welcomed Members of the Committee to the virtual meeting. He noted that load shedding would start at various places in the country at 18:00. He informed Members that when load shedding did occur, he would be offline for about three minutes when changing gadgets. He assumed other Committee Members would have similar problems at different times.

The Chairperson informed the meeting that the Committee would not be in a position to finish the Bills this parliamentary term. The Committee had previously determined a need to meet with the Registrar of Sexual Offences at the South African Police Services (SAPS) for a briefing on how the Sexual Offences Register operated. That would inform the drafting of the legislation. That meeting would occur the following week.

He said that the Chief Whip had given those Committees that had incomplete legislation some flexibility in meeting during the constituency period. He would, however, not tamper with the Easter period and the rest period. It was important that Members rested as the term had been most taxing on Members, most of whom also served on other Committees and the sub-Committee on Correctional Services.

Taking note of those factors, and the fact that the drafters needed time to make amendments following the input of Members, he would circulate an amended Committee Programme and asked for comment by the various parties in the Committee.

Discussion on Committee Programme

Ms N Maseko-Jele (ANC) informed the Chairperson that she had not heard the introduction as she was experiencing load shedding but had managed to connect on an alternative device.

Adv S Swart (ACDP) appreciated the fact that the drafters needed sufficient time to make the amendments, especially considering that the Committee was dealing with complex Bills that would have a far-reaching impact. There was also the need to do constituency work and the work of other Committees. However, he was of the opinion that there should be time at the end of the constituency period. One had to bear in mind the need for a Committee meeting to deal with minutes.

He added that the Programming Committee of that morning had determined that the Committee would meet during the constituency period to deal with the Correctional Services Amendment Bill. Meetings of several Committees had already been taken into consideration, although Parliament continued to stress the importance of the constituency period. There was pressure on Members, but the Committee could decide to sit during the latter part of the constituency period.

The Chairperson concurred, adding that, as it was an election year, political parties would also want to use the time to do some electioneering. The Committee had to balance all those issues.

Adv G Breytenbach (DA) indicated that she would fall in with the decision of the Committee. She was equally happy to work during the constituency period. She added that Members who sat on busy Committees had to find the time to do the work and it should not be an issue.

Ms J Mofokeng (ANC) stated that the ANC was also available during the constituency period.

The Chairperson thanked the Members and stated that he would circulate a revised Committee Programme. He reminded Members that the Committee had to consider the issue of oversight as the Committee had not done any oversight business. He was aware that the Committee became so busy with legislation, that it neglected to undertake oversight. He acknowledged the important and pressing nature of legislation but stressed that it was important to see the legislation in terms of laws and policies in action. He would develop some proposals for a discussion by Members the following week.

Ms Mofokeng recalled a discussion in which some of the female Members of the Committee had indicated their desire to visit some of the domestic violence spaces before the Committee finalised the Domestic Violence Bill. She asked if Adv Breytenbach was still interested.

Adv Breytenbach eagerly responded that she would still very much like to undertake such oversight. She had a mobility problem because of a knee issue but she was keen for the Committee to make such arrangements. It was very important.

Ms Mofokeng asked the Chairperson to include oversight into domestic violence in the Committee Programme. She wished Adv Breytenbach well.

The Chairperson added his best wishes to Adv Breytenbach. He added that another key area that required oversight was the Master’s Office. That had also been mentioned. The Committee should visit one or two Master’s Offices as that was where people were receiving the worst service. He promised a draft programme shortly. He would discuss with Adv Breytenbach so that she was accommodated.

The Chairperson welcomed Ms Kalayvani Pillay, DDG for Legislative Development, Department of Justice and Constitutional Development (DoJ&CD), and her team. He invited Mr Sarel Robbertse, Senior State Law Advisor, DoJ&CD, to make his presentation.

Consideration of the Domestic Violence Bill

Mr Robbertse referred to a previous working document that had been presented to the Committee which had then suggested certain amendments. The Committee had given the Department instructions to clean up the text of the Bill and to refine the Domestic Violence Safety Monitoring Notices. The Domestic Violence Act Amendment Bill: Working Document, dated 9 March 2021, was the cleaned-up document. He would go through all Amendments.

Amendments presented by Mr Robbertse

Title -  Inclusion of the word “Act”: DOMESTIC VIOLENCE ACT AMENDMENT BILL.

Section 1-  Add the word “Insertion”: Insertion of Arrangement of Sections in Act 116 of 1998

Index - The new provision of a Domestic Violence Safety Monitoring Notice had to be included in the index as section 4A.

Section 2 contained a new definition of “capture” to explain how a clerk of the court would capture documents in the new integrated system to ensure that all documents could be printed out in the correct legal format for use in court:

Section 2 (b) by the insertion before the definition of “clerk of the court” of the following definitions:

"'capture' in relation to the integrated electronic repository, means to store documents in the—

(a)        manner; and

(b)        format,

in the integrated electronic repository, as may be prescribed in terms of section 6A;

Section 2(c ) Mr Robbertse presented alternatives to the definition of “coercive behaviour”. The Committee had requested that the words “undue pressure” be removed from the definition, which he had done. He considered Option 4 almost threatening but the Committee was being given options. Option 2 referred directly to behaviour, whereas Option 3 was a more polished and broader definition.

Ms Mofokeng and Adv Breytenbach agreed that Option 3 was best.

Adv Swart noted that the definition Option 3 was very broad but he agreed that it should be the definition used.

The following was approved:

Section 2(c) by the insertion after the definition of “clerk of the court” of the following definition:

"'coercive behaviour' means to compel or force a complainant to abstain from doing anything that he or she has a lawful right to do, or to do anything that he or she has a lawful right to abstain from doing;";

Section 2(d) - Mr Robbertse offered the Committee two options for the definition of complainant. It was a drafting amendment and was aligned to other legislation in the Northern Territories and elsewhere. There were no comments so the Chairperson accepted Option 2 in the interim:

"‘controlling behaviour’ means 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; or

(d)        regulating his or her everyday behaviour;

New definition: “Communication”

Mr Robbertse indicated that a new definition had been added and it related mainly to communication that resulted in harassment. It defined “communication” as anything that was shared in the act of harassment and referred to the Criminal Procedures Act.

Ms Mofokeng asked how the police would deal such communication. She had been receiving strange messages and nude pictures and the police had informed her that the messages had been sent from unregistered cell phones which were apparently sold at certain shops. How would those communications be dealt with?

The Chairperson asked Mr Robbertse if that issue was covered under electronic communications.

Mr Robbertse agreed that it was. He would be coming to electronic communication at a later stage and would then be able to deal with Ms Mofokeng’s question.

Ms Mofokeng was comfortable with his response. Her concern was about not wanting to make law that was not implementable.

The Chairperson informed the Committee that Ms Petronella Linders, Chief Director from the Department of Communications and Digital Technologies (DCDT), was also on the virtual platform. He invited to make any comments she wished to at any point.

Ms Maseko-Jele asked if the video recording covered the issue whereby young person in a relationship made videos publicly available after the relationship ended in cases where such a person wished to harass his former partner.

Mr Robbertse agreed that the definition would cover an intimate image that had been recorded. In so far as it related to domestic violence caused by harassment, the Committee needed to, firstly, take into account the definition of electronic communication. He presented two definitions which spoke to communications in the real world and cyberspace. In domestic violence, the matter related to harassment. He explained that harassment was making available communications of a private nature to either the complainant or another person, and where the material communicated violated the sexual integrity or dignity of the complainant, was abusive, degrading or humiliating or might inspire, in the complainant, a belief that he or she, or a related person, might be harmed.

Regarding the concern raised by Ms Mofokeng about untraceable messages via a cell phone, Mr Robbertse explained there were different ways of sending electronic communication. Sending messages via a cell phone was subject to the Regulation of Interception of Communications and Provision of Communication-related Information Act (RICA). In terms of section 40 of RICA, the communications service provider had a legal obligation to record and store information of all customers who bought a sim card and activated it on their system. The Service Provider had to obtain that information and store it on the system and that could be used to trace a message. He was aware that some sim cards were in use that had not been RICA’d and it was possible that not all persons could be traced.

Mr Robbertse explained that Section 39 of RICA placed similar obligations on internet service providers to obtain information regarding users. Information could readily be obtained if a fixed line were used. He would, later, discuss a provision that the Courts could instruct an electronic service provider to provide information on a person who sent malicious communication. To an extent, it addressed that concern but he was aware of shortcomings.

He added that RICA was being revised to ensure that accurate information could be obtained and stored by the service provider.

Dr W Newhoudt-Druchen (ANC) had a question which she suggested could be answered when Mr Robbertse moved on to the electronic communication section of the Act. She asked how messages could be traced from internet cafes. Inappropriate messages could be sent from a computer at an internet café and she believed that the sender then could not be traced.

Ms Linders explained that every computer had an IP address so every computer could be traced. It was not the same as a mobile phone. All computers were traceable. She took note of the need to address the registration of such internet providers.

The Chairperson explained that the point raised by Dr W Newhoudt-Druchen was that a number of people used those internet computers and so while the computer was traceable, the person was not.

Ms Maseko-Jele noted that similar e-cafes also supplied cell phones for the public to use. Perhaps the café owners could be required to register everyone who made a call and the time it was made. That could also be a challenge.

Ms Mofokeng asked what the role of the DCDT was in the mushrooming of telephone shops owned by foreigners. She had been told that those shop owners cleaned up stolen cell phones. The police were trying very hard, but that was a problem. Was government doing enough monitoring and was there any checking of who opened shops like that?

Ms Linders said that the response of Mr Robbertse also applied to cell phones in such shops. If it were a landline, that would be more challenging because the telephone conversation was traceable rather than the actual handset. Regarding the mushrooming of shops, commercial activity was the responsibility of the Department of Trade, Industry and Competition (dtic). However, DCDT took note of the concern and would engage dtic and the Department of Small Business Development as it was definitely a concern and also contributed to illegal activity in regard to sim cards which was another challenge, especially to RICA. It was not a direct mandate of the DCDT to monitor such shops but electronic devices were the responsibility of DCDT.

The Chairperson suggested that the DCDT should consult much broadly in dealing with the matter, consulting the economic cluster and the police and related agencies. The matter needed a comprehensive approach from government, which should also look to the developments in technology. Part of the challenge was that criminals were using more advanced technology than the state had access to.

Ms Linders agreed but stated that some of the issues were being addressed in the Digital Technology Master Plan which was close to completion and there was a stakeholder process in that regard. She would include the points raised in that process. The economic cluster had been requested to look at the new digital technologies with an eye to how digital technologies could be utilised within the economic space. She agreed that a government-wide response was needed.

The Chairperson requested Ms Linders to switch on her video when speaking.

Dr Newhoudt-Druchen stated that not all of her issues had been addressed by Ms Linders. She noted that the Committee was trying its best in the three Bills on the table to cover all the bases and it needed the DCDT to assist more speedily and to put more effort into it.

Ms Linders apologised for creating the impression that DCDT would not deal with the matter but she wanted to indicate that DCDT was not the lead Department. However, it understood the need to work in an integrated manner and that all government departments had a responsibility to assist in implementing the Bills. The Digital Technology Master Plan would address the matter.

She added that the Film and Publication Board (FPB) was an agency of the Department that specifically dealt with issues relating to children and she would raise the matter with the FPB, especially around the tracing of information as it pertained to cell phones and computers. The Department was also responsible for the licensing of cell phone operators and the issues raised in the meeting would be conveyed to the Independent Communications Authority of South Africa (ICASA).

Ms Linders stated that, as Mr Robbertse had explained, the amendments would strengthen the matter as it was mostly children who were legally protected but adults, especially women, were not adequately protected. The Domestic Violence Bill would assist in protecting adults, and especially women, and the Department would look at how it could strengthen the legislation once it became law.

The Chairperson thanked her and called on Mr Robbertse to continue.

Mr Robbertse began by adding to the discussion. The problem with internet cafes was that one could not trace a cybercrime directly to a particular person. In dealing with cybercrime, it was problematic to say which of a number of people who had used a keyboard was responsible. There were also IP addresses that could be curated. There was software that could mask an IP address which made it difficult to trace a person. Various cafes provided free internet services.

Regarding cell phones, it was possible to legislate that all stolen cell phones had to be reported and that phones had to be deactivated. A cell phone had an electronic address that could be blocked so that it could not be used anywhere in SA unless one tampered with the phone. Internet cafes could be required to keep records of people who used computers but people who owned such businesses did not make much money and additional obligations on them could be problematic in the long run.

Further Amendments presented by Mr Robbertse

Section 2(e) Damage to property: Mr Robbertse pointed to four options for a definition of damage to property.

Ms Dellene Clark, Researcher, SA Law Reform Commission, confirmed what Mr Robbertse had said and informed the Committee that from the SALRC investigation into pornography relating to women and children, showed that police investigations were using the CCTV cameras at internet cafes to place people at specific computers and at specific times in an internet café.

Mr Robbertse noted that some damage to property should be placed under emotional harm. He added that under harm, or threats to harm, a household pet was included in option 2. The fourth option was more encompassing definition but did not include conduct amounting to emotional abuse.

The Chairperson asked if Ms Maseko-Jele, who had previously had a concern about the definition, was covered.

Adv Swart stated that he liked Option four as it was broad enough to cover all options. He was thinking of situation in domestic violence where people damaged clothing, household furniture and even motor vehicles.

Dr Newhoudt-Druchen preferred option 2 as it included emotional and psychological harm. Many victims experienced non-physical types of abuse that would not show unless the victim spoken about it. That was the experience of women and that was why she supported option 2.

Ms Maseko-Jele said that she was covered by option 4 but she agreed with Dr Newhoudt-Druchen that the second option, importantly, covered emotional and psychological abuse. She liked the reference in option 4 to “in which the complainant has a vested interest”. However, she was tending to agree with Dr Newhoudt-Druchen. She asked if Mr Robbertse could enlighten the Members as to where the emotional and psychological abuse of name-calling was addressed.

Mr Robbertse showed the relevant clause on the screen.

Adv Breytenbach was happy with option 4 but she heard what the other Members were saying about option 2. She suggested that Mr Robbertse inform Members whether there was a clause on the emotional and psychological issue.

Mr Robbertse stated that there was a clause that specifically dealt with misconduct relating to emotional, psychological and verbal abuse as an instance of domestic violence. That form of harm was addressed in the definition. It was not necessary to address it in the section on “damage to property”. The drafters were trying to clear up the definitions of conduct so that one type of conduct did not flow into another. That was the thinking behind option 4. Any other harm that resulted in emotional, psychological and verbal abuse was addressed later in the document.

Dr Newhoudt-Druchen informed the Chairperson that she would accept option 4 at that point but might revisit the matter when the Committee came to the clause referred to by Mr Robbertse.

Ms Maseko-Jele accepted option 4 in the light of Mr Robbertse’s assurances.

Ms Clark stated that the definition in option 4 not only cleared the definition of the conduct but also made it easier to prove in court that there was damage to property. It was not necessary to have to prove that there had been both damage to property and that one was emotionally and psychologically harmed.

Adv Swart added that the Committee Members needed to bear in mind that they were still on the definitions of domestic violence and the different categories under domestic violence. Damage to property fell under the definition of domestic violence. The definitions were in alphabetical order and it was difficult working electronically. On a hard copy, one would immediately see what was further down the page. The Committee was currently dealing with sub-definitions of definitions.

The following was accepted:

Section 2(e) Damage to property: 'damage to property’ means— (a) the wilful damaging or destruction of property; or (b) threats to damage or destruction of property, belonging to, which is in the possession or under the control of the complainant, or  in which the complainant has a vested interest;

Section 2(g) “disclose” - Mr Robbertse stated that the definition of “disclose” was similar to that discussed under section 5(b) and related to electronic information.

The following was accepted:

Section 2(g) by the insertion before the definition of “domestic relationship” of the following definitions:

"'disclose' means to—

(a) send the electronic to a person who is the intended recipient of the electronic communications or any other person;

(b) store the electronic communications on an electronic communications network, where the electronic communications can be viewed, copied or downloaded; or

(c) send or otherwise make available to a person, a link to the electronic communications that has been stored on an electronic communication network, where the electronic communications can be viewed, copied or downloaded;                                                                    

The Chairperson discussed a closing time for the meeting as he was aware that Members were tired but they were being requested to make critical decisions that would directly affect the lives of people. The decisions were not easy to make and it could not simply be a compliance exercise.

Ms Mofokeng stated that the plan had been to work until 19:00 but owing to the load shedding, 6:30pm might be a good time to end.

Adv Swart suggested 18:00 as Members had to prepare for the following day’s debate.

Ms Mofokeng accepted 18:00.

Dr Newhoudt-Druchen stated that she was pleased that the whip had agreed to 18:00 as it had been a very long day and she had to think of the sign language interpreters.

The Chairperson noted that the Committee would adjourn at 18:00. He requested Mr Robbertse to continue.

Definition of “disability” - Mr Robbertse referred to the definition of “disability”, about which there had been much public comment, especially in relation to mental “disease”. He referred to a second option which defined disability as follows:

“'disability' means a mental illness or severe or profound mental disability as contemplated in the Mental Health Care Act, 2002 (Act No. 17 of 2002), which makes a person incapable of making an informed decision or give lawful consent;"

Dr Newhoudt-Druchen was disappointed in the definition because it meant that, as a deaf person, she was defined as having a mental disability. She had perused the Mental Health Care Act the previous evening and nowhere in that Act did it say that disability meant a mental illness. She added that “mental disability” and “mental illness” were two separate things that needed to be taken into account. Option 2 had to be removed. She wanted option 1 to remain. Option 2 meant that Petronella Linders, who was partially sighted, also had a mental disability. She could not accept that definition.

Ms Maseko-Jele supported Dr Newhoudt-Druchen.

Adv Breytenbach agreed that option 2 was very insensitive. Even her dog’s loud barking in the background suggested that he, too, was upset with option 2.

The Chairperson informed Mr Robbertse that option 2 was rejected by all Members and the dog and that he should rework the clause.

Section 2 (h) domestic relationship - In Section 2 (h) on the definition of “domestic relationship”, subsection (f) had been problematic: “they share or [recently] shared the same residence;” The original amendment had been to remove the concept of having recently shared the same residence. However, the current amendment referred to the nature of the relationship between people being in a close relationship, which would exclude people such as students sharing a dormitory.

Ms Maseko-Jele said that she was satisfied if it covered “isangoma” and the abuse that happened in hostels during the training of “isangoma”, i.e. while they were in a temporary relationship.

Mr Robbertse stated that option 2 demanded a “close relationship” which might not include her particular concern.

Adv Breytenbach reminded the Members that the Bill dealt with domestic violence which presupposed a close relationship. Other forms of violence were dealt with under other legislation.

Dr Newhoudt-Druchen asked if the definition included those living in a school hostel. How or where was such a situation addressed?

Ms Mofokeng agreed with the concept of “having shared” as that covered her concerns about the situation once a person had moved out

Ms Maseko-Jele thought that she might have not explained her concern clearly. She had not been speaking of people who had been forced to go to “isangoma” training. They went voluntarily. There was a close relationship between the persons that she was referring to. There was no violence there. All sectors had to be covered in the legislation. Every residence, including hostels, etc. She believed that option 2 covered her. She accepted that Mr Robbertse could not understand her as he did not come from that culture.

The Chairperson reminded Ms Maseko-Jele that the situation had to be one of domestic violence.

Adv Swart reminded Mr Robbertse to indicate exactly which options had been accepted.

The Chairperson stated that, although the Committee was making formal decisions, nothing prevented Members from revisiting a section should he or she have cause to do so. He reminded Mr Robbertse to note the decisions in respect of the options.

Ms Mofokeng reminded Mr Robbertse not to forget to remove the word “recently”. Option 2 was approved as in:

“Section 2 (h) by the substitution for the definition of “domestic relationship” of the following definition:

 'domestic relationship' means a relationship between a complainant and a respondent in any of the following ways:

(f)         they are persons in a close relationship that share or [recently] shared the same residence;"

Mr Robbertse pointed out that all words in square brackets would be deleted in the final drafting.

Section 2 (i) “harassment”

Section 2 (i) referred to conduct defined as domestic violence. Harassment in paragraph (f) had been split into two points:

(fA)      sexual harassment;

(fB)      related person abuse;

Mr Robbertse believed that the descriptor of “sexual” provided a more definitive meaning of harassment. “Related person abuse” allowed a complainant to apply on behalf of another person who was being abused.

Section 2 (i)(hD) exposure to children or subjecting children to domestic violence

A second amendment to section 2 (i) was 2(i)(hD )which clarified exposure to children or subjecting children to domestic violence. The amendment read:

“(hD)    intentionally exposing or subjecting children to behaviour listed in (a) to (hC);”

Mr Robbertse explained that the change was a result of input during the public comment process.

Section 2 (i)(j)any other forms of harm or domestic violence”-

Paragraph (j) was a catch-all provision that dealt with any other forms of harm or domestic violence. He presented three options. The third option corrected a drafting error. The first option spoke of a related person to the complainant but Mr Robbertse believed that issue had been covered. Option 2 spoke to the “reasonable person” test and Option 3 omitted that “reasonable person” test but made the point of “reasonable harm” to a person.

Dr Newhoudt-Druchen asked if the word “stalking” in section 2 (i)(g) was going to be deleted as it was written between square brackets. She had understood that in the public hearings there had been a huge insistence that the term “stalking” should remain.

Mr Robbertse stated that “stalking” would be deleted as it was catered for elsewhere in the Bill where all forms of harassment were defined.

Adv Swart stated that he wanted to be sure that the paragraph covered all the concerns that he had previously raised. He appreciated the varying views on disciplining children but, if there was an intention to give a child a smack, could a charge of domestic violence be laid? (2)(i)(hD).

Secondly, Adv Swart referred to the catch-all phrase (2)(i)(j) that was very broad and covered almost every possible conduct within a domestic environment and so virtually any conduct could be deemed domestic violence unless the “reasonable man” clause was included. He was not advocating any form of child abuse but he asked whether such a scenario as where there was a threat of punishing a child, would be included in the definition.

Mr Robbertse agreed that the definition would include conduct where a child was threatened or given a smack. However, such threats could better be incorporated under physical abuse. He referred to the Australian legislation in which a clause similar to (hD) was included. That clause in Australian legislation included exposing a child to domestic violence or even the after-effects of domestic violence where a child had to comfort the complainant as a result of sexual abuse or where a child experienced prejudice as a result of economic abuse, or where a child saw a mother with a blue eye.  He believed that the child was protected via other clauses and that it did expand the paragraph significantly.

The Chairperson stated that the Committee should consider the clause very carefully as one did not want to criminalise the entire nation for chastising a child. It had to be looked at very closely in terms of how parents could raise their children.

Mr Robbertse agreed that some of the normal behaviour engaged in by parents keeping their children on the right path could be impacted on. He would reconsider paragraph (hD) in an attempt to come up with a solution for a situation in which a child was subjected to domestic violence.

Adv Swart said that he appreciated the point about not exposing children to violence but the legislature had to be aware of unintended consequences and to consider the impact of legislation. As he had previously pointed out, when there was an amendment to the Children’s Act that had banned parental corporal punishment, the majority party had rejected it. The courts had ruled on the Act and it was currently back before Parliament for an Amendment. The Committee should be aware of what was going into the legislation regarding the Children’s Act and the consequences of what was being written into statutory legislation.

The Chairperson lost connectivity.

Adv Swart suggested that the Committee wait for Mr Robbertse to reconsider the clause.

The Chairperson agreed and also suggested that Mr Robbertse consulted the Department of Women on the definition of mental disability.

Mr Robbertse agreed.

No decision was taken in respect of Section 2(i)(hD).

Closing remarks

The Chairperson noted that the Committee would meet the following week.

The Committee Secretary stated that on the following day, the Sub-Committee on Correctional Services would be receiving legal advice. On the following Tuesday, the Committee would be briefed on the Master’s Office by the Special Investigating Unit and the National Prosecuting Authority.  On the following Wednesday, the Committee would deliberate on the Traditional Courts Bill and receive a briefing on the difference between the Sexual Offences Register vis a vis the criminal records of sexual offenders.

He added that it had been suggested that that item by the SIU, scheduled for the afternoon of the following day, be deferred to the following term.

The Chairperson asked Adv Breytenbach, if the issue relating to the SIU, the Hawks and the NPA that she had raised would be addressed by the agenda items.

Adv Breytenbach confirmed that the discussion on the agenda would traverse her concerns.

The Chairperson noted that there would be no need for a second meeting with the SIU.

Adv Swart asked when the Committee would once more address the Gender Violence Bill as it was not on the agenda for the following week.

The Chairperson noted that research and other work was required before that Bill could come back to Parliament. In addition, there was a constituency period coming up. The Committee management team would draw up a comprehensive programme which would be discussed with party leaders in the Committee via a round robin.

Dr Newhoudt-Druchen asked for confirmation that there was no business on the Friday afternoon.

The Chairperson reminded her that she had to attend classes and that the DA was not available on the Friday afternoon.

The Committee Secretary informed Adv Swart that the Domestic Violence Bill was on the agenda for the following week to the extent that there would be a report on the Register as opposed to the SAPS criminal records.

The meeting was adjourned.




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