In a physical meeting the Portfolio Committee discussed and deliberated on the National Council on Gender Based Violence and Femicide Bill with the Department of Women, Youth and Persons with Disabilities (DWYPD). There were concerns about the Department's overly summarised response to the provincial consultations and it was advised that the response document be reworked and they meet again on 5 September 2023.
The Chairperson stated that the Gender Based Violence and Femicide Bill was sensitive and crucial to public knowledge however, there were technical issues and due to this the meeting will not be streamed via YouTube. She welcomed the Deputy Minister, Director General, and officials in attendance. She congratulated Deputy Minister Sisisi Tolashe as the new President of the ANC Women’s League and wished her well for her new responsibilities. She indicated the meeting apologies. Ms Phiri was unable to attend the meeting and would attend virtually but due to technical issues this was not possible. Ms Khawula is booked off sick. Ms Marchesi has resigned from the Democratic Alliance therefore was no longer part of the committee. Ms Hlongo is attending a hearing in another Portfolio Committee.
The Chairperson stated how crucial it was for physical attendance of all committee members unless there was a serious reason for missing physical meetings. She had attended community celebrations of August Women's Month in her constituency in Katlehong. Among the issues raised by women who attended was the struggle to transfer ownership of their home to their children after a divorce settlement, and how women in South Africa are exploited and frustrated by lawyers who claim to be assisting while in actual fact they change ownership of their assets by placing them under trusts. This is an issue that even the municipality is struggling to assist these communities with. The women in her constituency requested that the Minister of Social Development move their grant payment dates back to the first of the month as the later date affects their policies which deduct premiums on the first of each month. Grant applications in the Katlehong social development offices should be attended to as women cannot travel to Alberton or Boksburg due to the distance. She has requested an intervention to accommodate those who cannot travel to access social grant services in these areas.
Ms N Sharif (DA) noted that while working on GBV cases, she had identified that police stations transfer rape and sexual assault cases to the Family Violence, Child Protection and Sexual Offences (FCS) Unit and there is lack of communication between these structures while these cases get transferred from one structure to the other. For example, there was a GBV case reported in April where the perpetrator still has not been arrested or appeared in court. There was a problem particularly with the FCS Unit in Braamfontein, with either a lack of capacity or resources. She requested that the Committee investigate the cases being piled onto the FCS which later resulted in the negligence of cases. Another case involved an assaulted minor who was further traumatized by having to point out the perpetrator who was a teacher at the school the minor attended. She requested that SAPS and the FCS Unit be held accountable for not involving social workers. She would be visiting SAPS and would return with further information on the cases.
The Chairperson said that there was an upcoming sitting in Parliament and the cases would be presented at the sitting.
Deputy Minister's remarks
Deputy Minister Sisisi Tolashe thanked the Chairperson for her kind words and she would not disappoint in her responsibilities. She urged that members work together with SAPS in resolving the devastating cases experienced by communities and appreciated them for bringing the issues to the notice of the Committee. The cases involving children were sensitive ones especially with the escalating kidnapping and abduction of children. She assured the Committee that these cases would be attended to and she would be glad to see cooperation in resolving these cases.
The Chairperson said interventions are necessary and that it was the culture of the Committee to present concerns identified in constituencies for purposes of bringing about change for devastated victims in communities.
Gender Based Violence and Femicide Bill
The Chairperson said that deliberations would be held on the GBV Bill that establishes a GBV Council. The Committee had received 52 written submission on the Bill and 17 oral submissions were also received from NGOs, COSATU and individuals. She asked if the Department had gone through the submissions and had responded accordingly to all the submissions. Chapter 4 of the Constitution states that the National Assembly "must facilitate public involvement in the legislative and other processes of the Assembly and its committees and conduct its business in an open manner, and hold its sittings, and those of its committees, in public".
The Chairperson noted that the Department response document had been submitted to the Portfolio Committee. The state law advisors were consulted to check if the responses made by the Department were in line with the Constitution to ensure thorough deliberations. In analyzing the submitted response document, there were no explanations about some of the changes made and that detailed answers were crucial whenever changes are done to a Bill. DWYPD needed to elaborate with reasons whenever changes are made for approval by the Committee. The Department must explain why it is disagreeing with a proposal.
She mentioned a submission on the General Council composition which was that the NPA, Department of Basic Education and the private sector should be included. Adequate responses should be done to address the submissions. For example, if the Committee disagrees with the composition of the General Council on GBVF should be NGOs having 49% and government must be 51% composition because government accounts to the electorate. The electorate elected government; it did not elect NGOs. In analysing and refining documents the Department should be aware that these facts are always taken into consideration. This takes into consideration what was raised by the Minister of Social Development at the summit when she insisted the reason that NGOs do not get funding is because they do not account. She is simply making examples. Your Department report on your responses are meant for public consumption and at the end of the day the public looks at the reasons funding has been granted. It is important that DWYPD covers its back and does not take short cuts when dealing with Bills. A while back Parliament was taken to court about the Land Bill because the public complained that public was not allowed to participate and the Department did respond adequately to all submissions. Thus it is an obligation to do justice to this Bill without contestation. This Committee is very thorough in responding to Bills. Due to what she had raised, she requested that the Department redo the responses and then revert to this Committee so this Bill can be finalized without any dispute.
Ms Sharif supported the Chairperson, saying that she had looked at the report and was shocked to discover that DWYPD had not gone through all the submissions and there were no explanations on the changes made. They seem not to have considered that transgendered men and women experience violence and abuse, and this must be clearly stated in the DWYPD report. To be honest, not responding to all the submissions – as the Chairperson has already stated – is to be in breach of the law and the Constitution. There is a misalignment of what happens in DWYPD and what needs to happen in the Committee because it is this Committee that has to defend the Bill it passes. It becomes difficult to support and to defend the Bill when there are missing details so for the sake of this Committee, women, and the LGBTQ+ community all 69 submission must be responded to thoroughly. Let us remember that we are dealing with experts, let us make a good piece of legislation using our expertise and our knowledge.
Ms B Marekwa (ANC) expressed her concern about areas in the submitted report that require the use of ‘may and must’ and therefore DWYPD must check for this and upon their return ensure that they do correct these errors without restarting their work when attending to responses, secondly a part of the report states that the South African Constitution opens up a lot makes provision for people within the country” I suggest that this should not be changed to the word “citizens” but rather be left to the original word “citizens” on the composition of the Council. Let us make provisions for the citizens. It appears open-ended with the use of “people within the country”. The explanations for the proposed amendments must be provided by the Department.
The Chairperson said that another point that needed to be made clear was the responsibility of the Council. There must not be any confusion between the work done by the Council and the responsibility of the Portfolio Committee. The Portfolio Committee plays the responsibility of oversight and the Council is therefore not equivalent and this must be clear. Government has the responsibility to hold the Council accountable and this must be clear so that separation of powers and responsibility is clear. The Council must come with you when you account. They are not independent from you.
The Bill has been established as an equivalent to SANAC but what has been the impact and responsibility of SANAC. This must be considered as food for thought. The mandate of the Department is clear as it is monitoring. There must not be any confusion, Deputy General.
Another crucial point to consider is whether the appointments of the Council must go through Parliament for free and fairness of appointments so the Council can be independent. Parliament is multi-party. Interviews must be public and posts must be publicized. So it is not friends of friends. There must not be free of conflict of interests.
Ms Sharif said that she was available to consider legal issues when such issues are raised.
The Chairperson said that the Portfolio Committee has done its level best to assist DWYPD and she therefore thinks that when and if its legal advisors need help, then they should contact the parliamentary researchers when needing information and assistance.
Ms Sharif advised that DWYPD arrange a meeting with the Committee researchers who have the expertise in dealing with Bills.
Adv Mikateko Maluleke, DWYPD Director General, said that she was grateful that the Portfolio Committee was always at their disposal and that it has unique concern in Women, Youth and People with disabilities in South Africa. She has attempted to look at the report amendments with her colleague but has been preoccupied due to the travelling she has been doing to all nine provinces. However, DWYPD will look at it the report again. On the tagging of the Bill, the Minister had requested that the Chief State Law Adviser, Adv Susan Masapu Susan Masapo, be consulted about change the tagging to a Section 76 Bill. However, Adv Masapu has said that it was impossible for it to change the tagging. She advised DWYPD that to change the tagging from a section 75 to a section 76 Bill a request must be made to the Joint Tagging Mechanism in Parliament.
The Chairperson said the Bill will be deliberated on as tagged as it would be a fruitless exercise to change it with all the work that has already been done.
Ms Sharif said that the Bill is rightfully a section 75 Bill making it an ordinary Bill not affecting the provinces. The fact that this has been questioned in some submissions should not worry DWYPD because it would be unconstitutional to change it and should remain tagged as section 75.
The Chairperson agreed it was a section 75 Bill.
DWYPD response to submissions
Ms Nondumiso Ngqulana, DWYPD Director, Legal Services, gave feedback on the public consultations that were conducted by the Department in all nine provinces during November 2021 before the Bill was introduced into Parliament. On 30 September 2021 approval was granted by Cabinet to DWYPD for the publication of the National Council on the Gender and Femicide Bill to solicit public input and comment. The Bill was published on 5 October 2021 in the Gazette and on the government website. Members of the public were informed in a media statement issued on 7 October 2021 about the Bill and collaborations were conducted in all nine provinces for public participation. Copies of the attendance registers have been provided to the Portfolio Committee. DWYPD received written submissions from Adv Thando Gumede, SAB, Wise For Africa and the Embrace Project. Further, the Premier’s Office of Western Cape, Eastern Cape, Gauteng and Northern Cape consolidated inputs from stakeholders and submitted written inputs in addition to physical public consultations. Upon receipt of oral and written inputs, DWYPD incorporated some of the inputs. Some were not incorporated mainly because they were inconsistent with the founding document of the Bill which is the National Strategic Plan on Gender Based Violence and Femicide (NSP GBVF).
The concerns that were raised in all nine provinces emanated from the tagging of the Bill as a section 75 instead of section 76 along with the number of Council members to constitute the Council. There was a strong call to increase the number of Council members to include other stakeholders, especially the Department of Basic Education and the Department of Higher Education and Training.
The explanation provided by the Department was that the tagging of the Bill was the responsibility of the Chief State Law Advisor and cannot be changed by the Department. The Bill was classified as an ordinary Bill not affecting the provinces. According to the Constitution, a Section 76 Bill deals with functional areas in Schedule 4 of the Constitution.
DWYPD noted that clause 22 of the Bill does provide for the Minister to prescribe norms and standards for the coordination of provincial and local government gender and femicide working groups. However, the provision of the Council is for strategic leadership at a national level. The Bill does not regulate functional areas listed in Schedule 4 of the Constitution. In the view of DWYPD, the Bill must remain a section 75 Bill not affecting provinces.
Ms Ngqulana said that the clause on appointment of Council members will be amended. It will be aligned 100% with the appointment approach of the National Youth Development Agency (NYDA) through Parliament otherwise it would be a huge headache for DWYPD.
The Chairperson pointed out that there was not structure for women, youth and people with disabilities at the provincial level.
Ms Ngqulana continued and said that another issue that came up was the composition of the General Council and the number of members. The number of Council members is limited to 13 by the NSP which is the founding document of the Bill. There was also a perception that money is going to be distributed; therefore DWYPD had to emphasize that the clause talks to funding of the Council itself with funds coming mostly from Parliament. The Council would not be involved with a distribution of funds but focus on ending GBVF. Social Development will provide funding to NGOs.
The Chairperson said the Council would not do monitoring of government. It will not have the capacity. The Chairperson mentioned the importance of the 51% and 49% composition of the General Council. She said that 51% should not to be given to civil society organizations but rather to government.
Ms Ngqulana said that the Department welcomes the advice given by the Portfolio Committee and we will go back and put more information into the response document.
The Chairperson emphasized that it was important that collaboration be done to produce solutions for the Bill. Therefore, an extension has been granted to DWYPD so that they can be strategic with their next response submission.
Mr Mandla Neku, DWYPD Director: GBVF Secretariat, noted that there was personal interest in complaints that came from organisations who claimed they were not involved in the Department consultations. A classic example was Dr Fikile Vilakazi who claimed in oral submission to Parliament that she was not aware and was not part of the consultations at the time of the provincial consultations. However, Dr Vilakazi was sitting next to him on the 19 November 2021 consultation in KZN; there is a picture.
The Chairperson pointed out that in response to the claims that people were not consulted that she had extended the deadline for comment. Even when we added days for oral submission, they did not come through.
Ms Sharif said that the Department consultation had small participation numbers. Gauteng – 86 participants;
Limpopo – 46 participants; Western Cape – 64 participants; North West –42 participants. The Committee had been unaware of the consultation venues and dates to assist DWYPD to inform NGOs and to have participation from the Committee to get the word out. DWYPD must not summarize when reporting its responses but rather give full details. The response document says only three things: tagging of the Bill; the funds and increasing the number of Council members
The Chairperson agreed DWYPD must share the full provincial input even if these fall out of the NSP, this must be shown.
Deputy Minister Tolashe said that the Bill was the most important Bill in our lives. She made reference to the 1956 Women's March when women addressed serious social ills of the time. Gender based violence and femicide must be resolved by the current generation even if there are hiccups in the process. Everyone is eager to see this Bill in place working for women in our society and the Bill informs the attitude of the Department. Therefore, the advice given by Chairperson is admired and accepted and the response document will be resolved by the Department. The extension date given is also appreciated and she affirmed that all matters will be addressed. We are all women and it is our responsibility to humble ourselves and resolve all matters confronting society and women. Next time all the required answers will be in place as expected.
The Chairperson said that she was happy with the way they have dealt with the Bill today. The meeting for finalizing the response would be moved to the following week.
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