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

Meeting report

Opening remarks
The Chairperson thanked the Committee members for all the support they had shown her this past week while she was not well. In this meeting they would be going through all the clauses in the A-list and B-Bill. This would be a continuation from the previous week.

Ms N Sharif (DA) requested permission to leave her video camera off as her connection was unstable. She expressed her joy that the Chairperson was well and had returned. She wanted her to know that she cared for her and supported her always.

The Chairperson acknowledged Ms Sharif’s sympathy. She still felt afraid to travel on her own but she was feeling better.

The Chairperson informed the Committee that they had received an invitation from the German organisation they had visited in June 2023 who would soon be hosting a women economic empowerment conference in Durban. Sadly, due to financial constraints, Parliament could no longer fund its portfolio committees to attend conferences. Funding was only allocated to committees to conduct public hearings. The Minister would be one of the keynote speakers at the conference. The model highlighted at the conference was useful as it encouraged women who were starting their own business and there were many success stories. The conference was from 2 to 4 October 2023. She was sad that they could not attend. Perhaps they could request the Members who reside in Durban to attend. This would be beneficial for the Committee.

Adv Mikateko Maluleke, Director-General of the Department, agreed that there was a lot to be learnt from Germany. The Minister had prioritised assisting women, youth and persons with disabilities to form a co-operative bank; this was the model used in Germany and many other countries. She was not aware of the conference in Durban.

The Chairperson requested that the conference details be forwarded to the Director-General immediately. This was a very important conference, even kings were being invited to this conference.

National Council on Gender-Based Violence and Femicide Bill
Dr Barbara Loots, Parliamentary Legal Advisor, took the Committee through both the A-List and B-Bill, noting the amendments.

Long Title
Dr Loots asked if Committee accepted the Long Title 'as is'. She noted that the Committee had not discussed or amended this.

Director-General Maluleke confirmed that at the previous meeting the Long Title was not discussed.

The Chairperson said that the Long Title would prove difficult to shorten because it was meant to reflect what the Bill entailed. To shorten it would be to take away from that. It was fine the way it was.

The Long Title was approved.

Preamble
Dr Loots clarified that the Preamble was already approved in the previous meeting. She asked for re-affirmation of this.

The Chairperson said that she did not think they would need to spend many hours deliberating on the B-Bill if everyone had already read through it as she had.

The Preamble was approved.

Enacting provision
There was an amendment to insert ‘therefore’ after ‘it. This was approved.

Table of contents
There was an amendment to replace ‘remuneration’ with ‘reimbursement’. This was approved.

Clause 1 Definitions
Dr Loots clarified that the definition of femicide was written from the victim’s perspective and not the perpetrator. All Members were in agreement.

The gender-based violence definition was amended to include domestic violence. All were in agreement.

The definition of National Strategic Plan (NSP) was amended to align with the policies and action plans developed and implemented by the Executive Authority as well as the NSP. The Bill would have a broader reading. All were in agreement.

On page 3, line 25; to omit ‘;’ and substitute ‘.’ This was approved.

Clause 1 was approved.

Clause 2
On page 3 line 31: replace ‘provide for’ with ‘co-ordinate’.
On line 32 replace ‘National Strategy Plan’ with ‘national strategy addressing gender-based violence and femicide’.

Clause 2 was approved.

Clause 3
On page 3 line 48, to insert ‘and co-ordination’ after ‘leadership’.

Clause 3 was approved.

Clause 4
On page 3 line 55 replace ‘facilitate and co-ordinated and’ with ‘co-ordinate a’.
To insert ‘national strategy addressing gender-based violence and femicide’ in line 2 of page 4.
On page 4 line 5 replace ‘ensure the establishment and maintenance of a platform for’ with ‘facilitate the’.

All were in agreement and supported clause 4.

Clause 5
This clause had been rejected and replaced with a new clause on Functions of Council.

Ms Sharif asked for clarity if this proposed amendment included that the Council must report to Parliament at least four times a year.

The Chairperson agreed that the reports would go to Parliament and the Minister would report to Parliament four times a year.

Ms F Masiko (ANC) supported the clause as it captured the roles and responsibilities for the country.

Ms N Sonti (EFF) expressed her support

Ms M Hlengwa (IFP) supported the clause and was glad for the management outline which the Council had to adhere to.

Clause 5 was supported.

Clause 6
This clause had been rejected and replaced with a new clause on Board of Council.

Dr Loots noted an error in the B-Bill which stated ‘13’ instead of ‘15’ members. She promised to rectify this before the B-Bill was sent for printing.

The Chairperson wanted to be assured that the Bill stipulated that if a board member resigned, the Board would still be functional.

Dr Loots confirmed this and that this would also be stipulated in clauses 9 and 12. She promised that this would be properly reflected.

Ms Masiko referred to clause 6(7): "Whenever the Chairperson is for any reason unavailable, the Deputy Chairperson must perform the responsibilities and duties of Chairperson". The responsibilities and duties must be clearly stated. Where in the Bill would this be?

Director-General Maluleke agreed. Although "responsibilities and duties" was stated in the Bill, there was no mention of what exactly those entailed in clause 6. She observed that this was noted in Clause 5.

Ms Masiko agreed but stressed the importance of being clear on one’s responsibilities in order to avoid abuse of power. Perhaps sometime in future, it could be clearly stated what the roles of the chairperson and deputy chairperson were. This was not an urgent matter yet but something to consider for the future.

Director-General Maluleke agreed with Ms Masiko. The Companies Act may not assist them because this was a non-profit organisation (NPO), unlike with a company which would make money. Every Board had to sign a Shareholder’s Compact Agreement where it was listed what was expected of everyone.

Ms Sharif agreed with Ms Masiko. Could the role of each member of the Executive and the Board be added? She was happy that the Board would be appointed by Parliament. She wanted to ensure that the minutes would reflect that Dr Loots promised to make the changes on the B-Bill before going out to print.

The Chairperson replied that Ms Masiko’s suggestion would not be prioritised at this time, only at a later stage. The board chairperson would have to fulfill the duties of chairing meetings. This would go without saying. Giving them clearly outlined roles may lead to abuse of power. The roles and responsibilities of the Chief Executive Officer (CEO) needed to be clearly outlined. The separation of powers was important.

Dr Loots confirmed that this was already captured.

Ms Masiko clarified that the reason she asked was because there was mention of "responsibilities and duties" in 6(7).

Dr Loots promised to re-look at clause 6 'with a magnifying glass'.

The Chairperson suggested that they meet again to confirm that Dr Loots had made all necessary changes.

Dr Loots promised to revise the B-Bill and circulate it to Members by the end of the day.

The Chairperson asked that Members read over the revised Bill as soon as they received it.

Ms Sharif asked for 6(7) to be highlighted.

The Committee supported Clause 6.

Clause 7 and 8
Dr Loots noted that these clauses were unamended.

The Chairperson contested this. She could not recall clearly, but she remembered that there was an amendment. She asked Members to help her remember.

Ms Sharif reminded the Committee that public submissions had stated that person should be disqualified from being a Board member if “accused” rather than "convicted". Members had wanted to amended it to “convicted” and spoke at length about the legal implications thereof.

Ms Masiko recalled that they had given the Director-General ‘homework’ to find out what happened when a person was dismissed from a job due to harassment.

The Chairperson recalled that there was a discussion on this; about a person attending a hearing on sexual offences or domestic violence.

Ms Masiko confirmed that they had such a discussion in the past. She recalled that a person had applied for a public office bearer position who had a sexual offence case pending against them. The Committee’s stance was that said applicant would not be considered at all. The person appointed to protect could not be the one to violate. This amendment should be added immediately.

Director-General Maluleke agreed with Ms Masiko and clarified the meaning of ‘fit and proper’. This phrase would give leeway to refuse an applicant as they did not meet the necessary criteria.

Dr Loots pointed out that the National Assembly would play an active role in approving the list from which the President must appoint. The concept of fit and proper was covered under clause 7(a).

In reply, the Chairperson warned that one could ‘get away with murder’ by just focusing on clause 7(a).

Dr Loots suggested that they rather use the word ‘misconduct’ which would be a suitable term for any wrongdoing an applicant may have been found to be doing. The general term 'misconduct' would be better suited. The Committee should take into account the meaning of ‘fit and proper’ when doing the selection of board members.

The Chairperson asked how would this help shortlist the candidates? Should they leave this as is or should they amend it?

Ms G Opperman (DA) mentioned that they were covered where it read “any other criminal offence” under clause 7.

Ms M Hlengwa (IFP) warned that in future during interviews, the candidates could challenge the Committee about the criteria of ‘misconduct’.

Dr Loots suggested the amendment include all forms of misconduct which included theft or fraud.

Ms Sharif agreed with this amendment. She suggested adding sexual offences and corruption within the workplace.

Ms Masiko agreed to the amendment.

Clause 7 was supported with the amendment.

Clause 9
Dr Loots clarified that a minister could appoint an official to represent them on the Board, if they so wished. This would ensure the smooth running of operations.

The Committee supported Clause 9.

Clause 10:
Dr Loots pointed out the replacement of ‘remuneration’ with ‘reimbursement’. This would clear up the ambiguity.

The Committee supported Clause 10.

The Chairperson asked if the representatives from the Offices of the Minister and Deputy Minister were paying attention in the meeting. She was concerned because their video cameras were off. She requested that they switch on their video cameras immediately and they did so.

Clause 11
1. On page 6, in line 45, after ‘‘9(1)(b)’’ to insert ‘‘and (c)’’.
2. On page 6, in line 49, to omit ‘‘by the Minister, who must comply with’’ and to substitute ‘‘as set out in’’.
3. On page 6, after line 49, to add the following subsection: ‘‘(3) A vacancy in the Council does not affect the validity of the proceedings or decisions of the Council.’’.
4. On page 6, in line 50, to renumber the existing subsection (3) as subsection (4).

The Committee supported Clause 11.

Clause 12
This clause had been rejected and replaced with a new clause. It was adjusted to allow for the role of the National Assembly.

Ms B Marekwa (ANC) remembered making adjustments to this clause and discussing it in previous meetings.

The Committee supported Clause 12.

Clause 13:
1. On page 7, in line 11, to omit ‘‘in consultation with the Chairperson of the Board’’.

This clause was supported.

Clause 14:
1. On page 7, in line 36, to omit ‘‘in consultation with the Minister and’’.
2. On page 7, in line 39, to omit ‘‘Remuneration’’ and to substitute ‘‘Reimbursement’’.
3. On page 7, in line 39, after ‘‘;’’ to insert ‘‘and’’.
4. On page 7, in line 40, after ‘‘Audit’’ to insert ‘‘and Risk’’.
5. On page 7, in line 42, to omit ‘‘; and’’ and to substitute ‘‘,’’.
6. On page 7, in line 43, to omit paragraph (d).
7. On page 7, in line 47, to omit ‘‘so many’’ and to substitute ‘‘the number of’’.
8. On page 8, in line 15, to omit subsection (9).

Ms Sharif reminded everyone of the amendment made the previous week by the Department to remove the Committee addition of a legal committee for the Board. The reason given was the financial risk and the cost to the Bill. She noted her objection to the Department deciding not to add this amendment to the Bill.

When asked if she still stood by her objection, Ms Sharif said yes. She still thought that legislating a legal committee would be a good idea.

Ms Masiko (inaudible 01:58:30) wondered what became of the support for this. With the banishing of the legal committee, how would Council pursue the legal aspect of GBVF? She was concerned about this. She understood that the legal committee would have monetary implications for the Board.

The Chairperson stressed that the legal committee was important. She requested that the minutes of the previous meeting be flighted for all to see. The Chairperson was confused because at the last meeting she was present at; they had all agreed that a legal committee was necessary. Now it was no longer the case.

Ms C Phiri (ANC) reminded all that the Commission dealt with monitoring and evaluation. The board committees would be appointed whenever the need arose. When that time came, they would contact National Treasury and the respective departments for assistance. The committee was given six months to deal with certain matters. Gender-based violence was very rife in the country.

The Chairperson was happy that the relevant parties had committed to taking full responsibility.

Director-General Maluleke replied to Ms Masiko that every secretariat to a council had legal services and its purpose was to litigate on behalf of the entity. Legal Aid was failing women. There were other entities such as justice centres, hence the recommendation from the Department not to legislate for a legal committee. The Council could litigate for itself as it definitely had legal services.

The Chairperson mentioned the women who were filing cases had no money for legal representation. This remained a challenge even with the intervention of the Commission for Gender Equality (CGE). The women were not educated; they had no money because they came from poor backgrounds and this hindered them from proceeding with their cases. They were vulnerable, hence the call for the National Council to have a committee who could assist such women by registering their cases and providing them with legal assistance. When these cases were dismissed in court, they had no place to go to. Did litigation have enough budget to represent such women? Perhaps the Department could treat this as homework and look further into the matter. Women made several complaints to the Chairperson. The Council had to intervene.

Director-General Maluleke replied that the biggest issue with working with the courts was the separation of powers. The way forward would be to call upon the Minister of Justice. Women could access any court and even the Justice offices (inaudible 02:15:45) The Council could not intervene on matters concerning the judiciary and vice versa. Perhaps the Committee could fight for the National Council to receive funding from National Treasury? The first struggle would be funding. At present, the Council was allocated R5 million. There was a possibility that the Council would not receive more funding due to budget cuts. Litigation required a budget as it was very expensive.

The Chairperson clarified that they were not saying every case should be funded, only the cases that had dire financial constraints or severe challenges. There should be a way to handle legal matters, so that women may feel that they were being heard and recognised.

Ms Opperman mentioned that the reason these women could not be assisted by the Council was because the Council was not a service delivery council. They were to only co-ordinate and monitor what was already in existence.

The Chairperson noted the suggestions and comments and the homework which had been given to the Department. She also warned against repeating comments and questions. She looked forward to hearing from the Department. These were issues which were already raised in the previous meeting.

Ms Sharif agreed with this proposal and suggested that they make use of the National Prosecuting Authority (NPA) too. She looked forward to the response from the Department. She was deeply concerned about the allocation of only R5 million to the Council.

The Chairperson agreed with Ms Sharif’s suggestion. This would greatly help women; they needed to try all avenues to find a way to assist these women.

Dr Loots asked if they would pause the clause by clause deliberation so that the Department could do their homework or would they continue.

The Chairperson replied that they would continue.
 
Dr Loots indicated that from a legal perspective, they could not proceed with adopting the A-List because Clause 14 had not yet been resolved.

The Chairperson mentioned that the homework would be a side matter bearing little to no significance to the clause. They could continue.

Ms Sharif reiterated that her objection was to include it as 14(1)(d), and the Committee initially agreed to this until the Department decided to remove it at the previous meeting. They had been going back and forth. What was the final decision, would it be added in or removed indefinitely? Her main concern was that the Board would not feel obligated to carry out the task if it was not legislated by the Committee.

The Chairperson said that Dr Loots and Director-General Maluleke must speak up and assist the Committee in resolving this matter.

Director-General Maluleke reminded all that a Committee instruction was given to the Department and the legal team to meet and discuss the Bill. Dr Loots should therefore speak about the part which was omitted in the previous meeting.

Dr Loots reiterated that this was not a service delivery committee, thus every clause must be weighed up against the purpose and function of the Council. In the previous meeting it was brought up that the CGE Act required amendment, due to it lacking in legislation. Each Council had a designated task and it could not veer off from its task. This was an establishment legislation which was setting up a Board. There was a litigation assistant shortage. This was not a closed list, the Board may establish one or more committees to assist the Board with its functions. To list a legal committee in the Bill would be to create a misrepresentation that there would always be legal issues to be dealt with. This would misrepresent the functions of the Committee. On the Council, there existed a representative for the NPA. The Council was making sure that all parties were performing their tasks for the well-being of the women in the country.

Ms Kashifa Abrahams, Committee Content Advisor, stressed that the function of the Council was to provide leadership and co-ordination. There were many victims who needed legal aid support. The Committee had ensured that Council reported to Parliament on the implementation of NSP. If anything, the Bill would ensure that the Council returned and spoke to Parliament. Committee members had noted the many women in the country who were not being supported. The Council was accountable to Parliament. Over and above the mandatory quarterly check-ins with Parliament, the Council could be summoned to be asked about providing legal support to women, and Council would have to account for this. The reason CGE did not have a litigation unit is that it failed to place a submission with the Legal Practice Council about including the CGE in the Legal Practice Act. The Committee could place pressure on the CGE and ask it about its performance.

The Chairperson noted that the Committee still stood by its stance taken the previous week. Provision would be made by the Council to ensure that legal services would be provided to women regardless of their income. The board members of the Council would be appointed based on their expertise. This clause could still be adopted even while the issues were being resolved.

The Committee thus approved Clause 14.

Clause 15:
1. On page 8, in line 27, after ‘‘is’’ to insert ‘‘, notwithstanding serving on the Board as an ex offıcio member,’’.

The clause was supported.

Clause 16:
1. On page 8, from line 47, to omit ‘‘pillars of the National Strategic Plan’’ and to substitute ‘‘national strategy to address gender-based violence and femicide’’.

The clause was supported.

Clause 17:
1. On page 9, in line 21 to omit ‘‘six pillars of the National Strategic Plan’’ and to substitute ‘‘national strategy to address gender-based violence and femicide’’.
2. On page 9, in line 25, to omit ‘‘day to day’’ and to substitute ‘‘day-to-day’’.

Ms Sharif asked to whom the secretariat reported in terms of the work they did.

The Chairperson replied that the secretariat were accountable to the Board (reading from the Bill).

This clause was supported.

Clause 18:
1. On page 9, in line 54, to omit ‘‘day to day’’ and to substitute ‘‘day-to-day’’.

Ms Sharif asked if ‘remuneration’ should be replaced by ‘reimbursement’ or had this already been covered. She was asking this for the sake of consistency throughout the Bill.

Dr Loots advised that the Department respond to this question as she did not feel it was her place to do so.

Director-General Maluleke was unclear about the question and so the Chairperson clarified. The Director-General added that she was not arguing; she was just trying to understand.

In response to the Chairperson asking how many more clauses had to be covered, Dr Loots replied that they were almost complete.

The clause was supported.

Clause 19:
On page 10, in line 19, to omit ‘‘may’’ and to substitute ‘‘must’’.

The clause was supported.

The Chairperson reminded Dr Loots to ensure that the A-List and B-Bill were identical.

Clauses: 20, 21, 22 and 23
These clauses had no amendments and were supported.

Clause 24:
1. On page 11, in line 42, to omit paragraph (a).
2. On page 11, in line 43, to renumber the existing paragraph (b) as paragraph (a).
3. On page 11, in line 44, to renumber the existing paragraph (c) as paragraph (b).
4. On page 11, in line 45, after ‘‘;’’ to insert ‘‘and’’
5. On page 11, from line 46, to omit paragraph (d).
6. On page 11, in line 48, to renumber the existing paragraph (e) as paragraph (c).

The clause was supported.

Dr Loots mentioned that the ‘2022’ in Clause 25 would turn to ‘2023’ when the Bill was officially processed and became legislation. This concluded the clause by clause deliberations.

Way forward
The Committee had aimed to adopt the A-List, B-Bill and Committee Report in this meeting but it was suggested that the necessary changes should be made and the Committee meet again to adopt these.

Ms Sharif agreed that they wait for Dr Loots to prepare the revised changes for the Committee to go over and adopt.

Ms Masiko agreed. It would be good to meet one last time after the amendments had been made.

The Chairperson agreed and said that it was important not to rush the process.

Ms Sonti said that it would be good to meet again to finalise everything. She warned that she may not be available for that meeting but she was in full support of what the Members raised.

The Chairperson said that the meeting date would be announced soon and those who were unable to attend would have their absence noted.

The minutes of 19 September 2023 were adopted and the meeting was adjourned.