National Council on Gender-Based Violence and Femicide Bill: deliberations

Meeting report

Ms C Phiri (ANC) was elected as an Acting Chairperson as the Chairperson was not well.

Tagging of the Bill
The State Law Advisor said that the proposed amendments the Department will be recommending are within the parameters of the Bill being tagged as a Section 75 Bill.

Ms Kashifa Abrahams, Committee Content Advisor, explained the process of the tagging test of the Bill and the procedure thereof. Rules of the National Assembly provide that when a cabinet member introduces a Bill, that Bill must be accompanied by a memorandum with a legal opinion from the State Law Advisor which will include a classification of the Bill.

Rule 280 of the NA Rules provides that the Speaker will refer that Bill to the Joint Tagging Mechanism, which will consider the tagging of the Bill. Joint Rule 142 explains the functions of the JTM and indicates that the classification of the JTM is binding and final. Thus, we are bound by the tagging of the JTM as a Section 75 Bill, and the legal team also found that the Bill is indeed a Section 75 Bill.

The legal opinion states that the Bill was assessed to ascertain if any section refers to Schedule 4 matters in the Constitution as listed in the footnote. It as well as the team are satisfied that the Bill does not touch on Schedule 4 matters affecting provinces and was correctly tagged as a Section 75 Bill.

Ms N Sharif (DA) said that the Committee needed to obtain a legal opinion from the State Law Advisor because most of the concerns in the public submissions were about the tagging. It is also critical that the Committee understands how this process works. There is not much the Committee can do if the JTM recommendation is binding.

Ms Marekwa (ANC) welcomed the explanation on tagging as the Committee is about to commence the clause-by-clause deliberations on the Gender-Based Violence and Femicide Amendment Bill.

The Acting Chairperson acknowledged that Members were now capacitated to understand what the tagging process entails, and Members were satisfied with the explanation provided by the team.

Proposed amendments to Bill
Adv Mikateko Maluleke, DWYPD Director-General, noted that the Department was tasked to meet with the State Law Advisor and Parliamentary Legal Services to review the Bill. The Department will be reporting what was agreed on.

Ms Nondumiso Ngqulana, DWYPD Director of Legal Services, took Members through the proposed amendments noting that the changes were mostly technical and did not change the substance and content of the Bill. It was merely modified in an exercise to align the Bill with accepted legislative drafting standards as assisted by Parliamentary Legal Services and the Office of the State Law Advisor.

Clause 1 Definitions
“Femicide”
This definition was reviewed and amended to: means the killing of a female person or perceived female person on the basis of gender identity, whether committed by a person within a domestic relationship, interpersonal relationship or by any other person.

Ms Sharif pointed out that this Bill mirrors the National Strategic Plan; thus, the definitions should reflect or be the same as those in the NSP. Secondly, femicide is killing a woman because you are a woman. When it says “on the basis of gender identity…” it does not make it clear that you were murdered because you are a woman. She made an example about killing a gay man and how that is considered plain murder regardless of that man’s sexuality or gender identity; however, if you kill a woman on the basis that it is a woman based on patriarchy and stereotypes or power, then it is femicide. This must be clear. The NSP starts by noting that femicide, also known as female homicide, is generally understood to involve the intentional murder of women because they are women.

The Content Advisor said that the team considered how the law would read. The NSP is more like the inspiration for the Bill, and policy cannot trump legislation because it can change continually. Therefore, these words must be considered within the context of the law on gender-based violence. People are allowed to change their gender identity. The reason for taking the word female out was because it reads from the perspective of a perpetrator, not the victim. The team's recommendation is considered more of a victim-centred approach and allows some flexibility on human rights issues in the definitions.

Ms Sharif said that Members needed to be aware that South Africa is progressive in its gender legislation and how gender is perceived in the country, and often, the international community is lagging. She recalled an oversight trip to Berlin where the Committee visited and learned that they do not recognise femicide as a real thing there, and many EU countries are still debating this. Therefore, we must know that following international standards may not be the best practice for these issues. South Africa is not still debating femicide; people understand what femicide is, while other Western countries are still debating this. However, she welcomed the amendment.

The Acting Chairperson was pleased with the amendment because it accommodates everyone.

“gender-based violence”
Ms Ngqulana noted that the team amended this in line with the NSP.

Ms Sharif said that a definition for ‘domestic violence’ should be crafted. Its own definition would be necessary because it is not covered under gender-based violence. Domestic violence is not solely based on gender but on power relations. If two men are in a relationship and one beats the other, it is domestic violence and not necessarily GBV.

The State Law Advisor said the GBV definition is wide enough to cover domestic violence. Listing examples of abuse will limit the legislation. The current definition covers sexual, emotional, economic, psychological abuse or threats of such acts of abuse in public or private life. The reason for this definition is that it does not provide limitations, and it is flexible to cover all forms of abuse. The Domestic Violence Act regulates domestic relationships.

The Acting Chairperson welcomed the wide definition and felt that it was much better than inserting limiting provisions.

Ms Marekwa agreed. Things change all the time within the LGBTQ community. Thus it is necessary to ensure that these evolutions are accounted for by not limiting the Bill to specific acts or definitions.

Ms Sharif did not agree. When discussing domestic violence, one cannot start with violence based on gender. Domestic violence is outside and beyond gender. Domestic violence must have its own definition.

The Acting Chairperson suggested that Ms Sharif submit a suggestion for consideration or word that she feels must be included. The legal advisors will confirm if it is appropriate for the Bill.

Ms Sharif said her suggestion is the definition of domestic violence per the Domestic Violence Act.

Adv Maluleke suggested that they include a sentence that says, “as defined in the Domestic Violence Act” and keep the current definition.

The State Law Advisor said she understood the weight of the domestic violence issue in this. However, the purpose of the definition clause is not to carry the weight of the word but to provide a guide on what a word used in this Bill means. The Bill does not use the word “domestic violence”. She suggested the inclusion of domestic violence in the definition of gender-based violence, as part of the list of abuse examples. The team can craft a suggestion that the Committee can consider.

“National Strategic Plan”
Ms Ngqulana said that this phrase is amended to “National Strategy Plan on Gender-Based Violence and Femicide”, and its definition was crafted as follows: “the relevant policies and action plas developed and implemented by the Executive Authority to address issues related to gender-based violence and femicide…” It now includes other relevant policies that seek to address gender-based violence without limiting it to the National Strategic Plan. The current definition is now wider.

The Acting Chairperson asked Ms Abrahams how to resolve the definition concern.

Ms Abrahams replied that at the end of the Bill is the Explanatory Memorandum. This provides an opportunity to explain that this Bill is part of the larger government apparatus and structure; thus, domestic violence issues will not be lost. The Memo can capture what Members feel is important. She felt a couple of issues needed to be noted in the explanatory me Explanatory Memorandum.

Clause 2 Purpose of the Act
Ms Ngqulana read out the clause and said that the word “provide” was replaced by “coordinate”. It was discussed and agreed that the latter was the appropriate word.

Clause 3 Establishment of National Council on Gender-Based Violence and Femicide
Clause 3(2) is added: “The Council is a statutory body responsible for providing strategic leadership in the prevention of, and response to, gender-based violence and femicide in South Africa, in line with the objects contemplated in section 4.”

Ms Sharif said that for the Bill to have teeth, it must have monitoring and evaluation powers, especially in other departments. It must monitor and evaluate the implementation of what the Council coordinates and prioritises. For example, if the Bill does not monitor and evaluate police stations on the number of rape kits they have or if care centres have capacity and resources, the Council cannot hold anybody accountable to ensure that this happens.

The Acting Chairperson noted that this issue is captured. Members must remember that the Department has the role to monitor and evaluate. The Department of Planning, Monitoring and Evaluation (DPME) also has a responsibility to do this monitoring and evaluation.

Clause 5 Functions of Council
The clause had been rejected and rewritten to more closely match the NSP and to deal with its accountability. Clause 5(3) stated: The Council must report to the Minister at least four times a year on its activities, the performance of its functions and the achievement of its objectives, and the Minister must cause such report to be tabled in Parliament as required: Provided that the Council may at any time submit any other report if it is deemed necessary by Parliament.

Clause 6 Board of Council
The clause had been rejected and rewritten so that the board member appointment process for the seven civil society and private sector representatives require interviewing and recommendation by Parliament and appointment by the President similar to the other two entities under DWYPD.

Clause 6(1)(b) is amended to add proposals by the public to include the Department of Basic Education and the National Prosecuting Authority and for the majority of for the eight organs of state on the Board. Also added in 6(6)(a) is that the President is responsible for the designation of the Chairperson and the Deputy Chairperson of the Council Board.

Clause 10 Remuneration
The word “remuneration” was amended to “reimbursement” in clauses 10(1) and 10(2).

Clause 12 Removal from office
The clause was amended to allow the Minister to appoint or remove public servants serving on the board by recommendation of the National Assembly. This was previously only the President but it has since been amended to include the Minister.

Clause 14 Committees of the Board
Ms Ngquluna noted that Legal Committee as proposed by the Portfolio Committee was removed.

The State Law Advisor added that the team consulted the Department and assessed how the National Council coordinates with other role players. Each of those role players will have a legal team. If the Council needs to litigate, the Board or the Secretariat has administrative powers to litigate; thus, removing the proposal for a Legal Committee of the Board does not take away the Council’s ability to handle legal matters.

This also does not mean an unforeseen eventuality can block the Board from establishing another Board Committee. If the need arises, the Council can set up other Committees and it is not limited to the Committees outlined in the Bill.

Ms Sharif said when the Committee discussed this provision, there was consensus that a Legal Committee must be established because of the experience with the Commission for Gender Equality (CGE). The CGE is unable to litigate because it is not spelt out. The Legal Committee goes a step further than litigation; this Legal Committee will also ensure that it assists victims when needed. She understood that it this would be included in the Bill to avoid repeating what has happened at the CGE.

She felt this proposed amendments process was becoming frustrating because the Committee agreed on provisions and thereafter this had been changed outside of the Committee. This should not be allowed.

The Acting Chairperson noted that the intention is not to remove the role but to allow the Council to create committees on its own. The clause does not limit the Council and gives it flexibility. This should be considered in a broad way. If there is a need for the Council to create a committee, it can do so in the manner the clause is crafted.

The State Law Advisor said the opening sentence of clause 14 states “including” which indicates that there will be more committees as the Council develops or to assist in the function of the Council. Paragraph (d) envisions that more committees may be needed, and this provision ties into the board's functions. The Secretariat is empowered administratively to support any litigation.

Ms Sharif understood what the clause states but it does not say, “The Council must establish a Legal Committee,” and this is where the loophole comes in. It should be legislated to have a legal committee to give the Council power to litigate when necessary. She could not back down on this because the plight of women in the country requires that it be so because they are suffering.

Ms G Opperman (DA) asked the drafting team by removing Legal Committee is it implying that the board will only litigate when there is litigation against the board itself or that the function of the Council is not to litigate on behalf of women in need of legal assistance?

The Acting Chairperson noted that the GBVF Council is not a service delivery council.

Adv Maluleke acknowledged that she understood Ms Sharif’s point and said that it would be ideal to have a structure that litigates on behalf of distressed women in the country. She did not think the Council could do that with its limited number of board members. The Council will not have a provincial presence. The Council will only be allocated R5 million. National Treasury refuses to fold and grant more funding. The existence of the Council is already threatened because National Treasury wants to reduce the number of state agencies to cut costs, and even the existence of the Department is threatened. The Council's purpose is merely the coordination of departments and civil society organisations.

Litigation is also costly and she was uncertain if the Council would be allocated a budget. When Treasury brings the budget to Parliament, the Committee must shine a light on this matter. Last week, Treasury cut R42 million of the Department budget. We cannot legislate for something that will not be implemented because litigation is costly.

The Acting Chairperson said Members must not mix issues. The Council will not take away the role of CGE which has a litigation role. The Council's main purpose is to coordinate and provide leadership on GBVF-related matters in order to become a GBVF-free society. All organisations and stakeholders must come together to play a role in this, but the Council’s role must be understood as coordinating these players and providing leadership.

Ms N Sonti (EFF) asked about a disciplinary committee and when it would be established. She felt that this Board committee was necessary.

Ms Marekwa advised that during the meeting last week, it was resolved that the Council will establish a committee where necessary or when a need arises. Ensuring that the appointed board members possess the relevant skills and expertise would be critical.

Ms Sharif said the DG had made the same argument previously saying that agencies such as Legal Aid SA, Women’s Law Centre and others are not taking on all cases but only those that set a precedent. But now where does this leave South African women? It leaves them without justice. Women are stuck in abusive relationships, raped and murdered. They are not asking questions about National Treasury and money but where they can get assistance for access to justice. That is what the Council is established for and to ensure that women’s lives are changed; if not, then there is no point to this.

Members had already argued for the NPA to be part of the Board. Therefore, the NPA could lead the Legal Committee because it already represents women in cases. Like any other agency, the NPA is imperfect, and we have seen cases that do not lead to prosecution even before the DNA results are out. There is a problem with the legal and justice system in the country. Perhaps National Treasury could be summoned to appear before the Committee to explain why it believes that GBVF is not a big issue that needs funding. She finds herself having to look and search every day for pro bono lawyers to assist women who are victims of GBVF.

The Acting Chairperson said that when the need arises to litigate, the Council that will institute a committee that will assist. The Bill does not say there is no need for a legal committee but that when the need arises, a committee can be instituted.

Adv Maluleke replied to Ms Sonti that the disciplinary committee would be included in the Human Resource and Reimbursement Committee.

On the Legal Committee, Adv Maluleke explained that the Department administers the CGE Act, which the Department or the Committee can amend to provide the CGE with the necessary powers. The Department cannot transfer the CGE responsibility to the Council simply because the CGE Act failed to give the CGE the powers that it has. This Committee is responsible for amending the CGE Act. The CGE is already established in all nine provinces and the Council cannot extend that far. This process can start as soon as the Committee is ready with proposed amendments that can empower the CGE.

Ms Opperman said the Committee has now established that the Council is not a service delivery council and will only coordinate and monitor what already exists. How will the Council force these bodies and agencies to do their job?

Adv Maluleke replied that when civil society marched to the Union Buildings, it complained about the lack of GBVF coordination. Municipalities, provincial governments, and the national government have no structure, coordination or collaboration on GBVF matters. Government provides funding to civil society, but the government is not always aware of how it uses that money. If there is a coordinated service, there will be direction and coordination to ensure that the six pillars of the NSP are delivered. These agencies and structures can only do so much, but communities are the ones that must also assist in fighting against this scourge. How do we coordinate people’s mentality to shift from the status quo and educate people on this?

Clause 15 Appointment of Chief Executive Officer
The clause was amended to account for the voting rights of the CEO, which is now amended to an ex officio member of the board.

Approval of proposed amendments
Ms Ngqulana submitted that these changes are technical and do not change the substance of the Bill.

Ms Marekwa welcomed the changes made and that the stakeholders agreed to these amendments.

The Committee adopted the proposed amendments.

Ms Sharif objected because the Portfolio Committee had agreed to the Legal Committee provision, but it was changed. She objected to the process of changing the Committee’s resolution. She did not object to the content of the Bill.

The Acting Chairperson noted the objection and said that it did not require a response. She called on the State Law Advisor and Parliamentary Legal Advisor to prepare the A-List and B version of the Bill. This will take place during the constituency period. Members are requested to avail themselves so that when the fourth term starts, the Committee is ready to proceed with the adoption of the Bill.

Outstanding Committee minutes were considered and adopted and the meeting adjourned.