National Instruction on Domestic Violence: briefing

Meeting report

SAFETY AND SECURITY PORTFOLIO COMMITTEE; JOINT MONITORING COMMITTEE ON IMPROVEMENT OF QUALITY OF LIFE AND STATUS OF WOMEN: JOINT MEETING
23 February 2000
NATIONAL INSTRUCTION REGARDING DOMESTIC VIOLENCE

Documents handed out:
National Instruction 7/1999 on Domestic Violence (See Appendix 1)
SAPS website information on Domestic Violence

Chairperson: Mr M George (ANC)

SUMMARY
Dr T Geldenhuys expressed the SAPS’ determination to implement the Domestic Violence Act. Members are committed to assisting families affected by domestic violence to obtain support services. Training initiatives have been undertaken across the board in the SAPS to enable members to better deal with the problem of domestic violence, giving them the insight necessary to develop empathy in dealing with victims. The National Instruction offers an opportunity for the SAPS to prevent crime and it is willing to take up the challenge.

MINUTES
The SAPS representatives were Dr T Geldenhuys (National Head: Victim Empowerment and responsible for coordination and implementation of the Domestic Violence Act), Commissioner Groenewald and Advocate Brink.

Background to Legislation
Dr Geldenhuys stated that the Act was adopted by Parliament in 1998 and became effective on 15 December 1999. An interdepartmental committee, involving the Departments of Justice, Health, Education, & Welfare undertook implementation of the Act. One of the main priorities of SAPS is combating crime against women and children. The National Instruction was the culmination of research by departmental staff, which showed that the approach regarding domestic violence in different countries the world over is almost the same. This kind of violence is a social ill which cannot be dealt with solely by the Department of Justice, & can only be effectively addressed by the community as a whole. Police are expected to identify families affected by domestic violence and act as a link to give proper assistance and counsel on the social implications of domestic violence. Extreme difficulty is caused by the fact that SAPS does not have sufficient support systems.

Appendix 1

The National Instruction
Paragraph 3: Responsibilities of station commissioner
Dr Geldenhuys said that Paragraph 3 sets out the responsibilities of the Station Commissioners to liaise with local representatives of the Department of Welfare, the local Community Police Forum (CPF) and other relevant institutions to find out what support services local organizations are willing to offer in their areas. These include "safe havens", long-term counselling, medical services, etc.

Sub-paragraph 3(2) – delails of services offered by institutions
The Station Commissioners is required to find out from the organisations the specific service rendered by each, the exact times when services are offered, whether free or at a fee, and contact details of each.

Sub-paragraph 3(3) – list of institutions to be kept and updated
The Station Commissioners have to compile a list of relevant organisations with the information required by sub-paragraph 3(2), as well as relating to medical services that may be provided to complainants. Sub-paragraph 3(4) requires Station Commissioners to keep the original list and to update it at least once every six months.

Sub-paragraph 3(5) – making sure information available to members attending to complaints
The Station Commissioners have to ensure that the said information will empower members of the police service to give proper assistance and to make informed decisions when they attend to complaints.

As support services are unavailable in the majority of police stations, SAPS members are required to contact the Department of Health to arrange these services. While the SAPS has carried out extensive training with regard to domestic violence, it would have been preferable for each member of the police to have received at least three days intensive training. A trainer programme was completed in 1999 & the trainees immediately proceeded to train other members. In Gauteng, which has about 24 000 members, roughly 3500 members did not receive training, but other provinces were not as fortunate.

Procedures
When a complaint is made a form is required to be completed. The Department of Justice is responsible for making the forms available to the SAPS, but to date these forms have not been distributed, presumably due to departmental staffing problems. The forms are to be made available in the eleven official languages and 3.3 million copies have been ordered from the Department of Justice. The Department provided members with photocopies of the draft form available from the regulation, which is only available in English and Afrikaans.

It was noted that , generally, it has never been, and still is not, the duty of the SAPS to transport victims. However, SAPS does give practical guidance to assist victims to secure transport, however, & when there is no transport, the Department instructs members to transport victims to obtain medical assistance, safe shelter, or a protection order.

There are two types of protection orders. One is the "interim order", which is issued urgently and served to the respondent immediately so he knows what he may or may not do in the period prior to a court hearing, & the other is the "final order", issued after a court hearing.

The Act’s definition of "domestic violence" includes many acts, & some do not constitute a criminal offence. Most that do constitute a criminal offence involve physical assault, & in these cases police are entitled to effect an arrest even though no criminal charges were laid. Members are required to exercise discretion on whether to effect an arrest since criminal assault is such a broad offence. However, laying a criminal charge is not a prerequisite for obtaining a protection order, nor is it necessary to obtain a protection order in order to lay a criminal charge. A copy of any protection order and/or warrant of arrest that is issued must be sent to the police station, to be kept on file. Where a contravention of a protection order occurs, the police may not effect an arrest except under specific circumstances. These are set forth in sub-paragraph 11(2) of the National Instruction, & provide that arrest must be effected if it appears to the SAPS member that reasonable grounds exist to believe that the complainant may suffer imminent harm.

A new form has been designed to monitor domestic violence & has been circulated to all police stations, & a register of incidences of domestic violence has to be kept. This makes it possible to identify an SAPS member who did not carry out his duties in terms of the Act. A member has to state exactly what has happened and what steps have been taken, etc. Only when a member has completed an incident report and register entry will he have complied with his duties in terms of the Act. Failure to act in accordance with the Act renders SAPS members guilty of misconduct.

Dr Groenewald said that regarding the future of the monitoring process, a survey has been conducted in Gauteng, and on February 24 a problem solving workshop will be held in the North West Province, with workshops in other provinces to follow.

Discussion
Rev. Meshoe (ACDP) asked who in the government Departments is responsible for setting up support services and ensuring that people are properly trained.

Dr Geldenhuys stated that in addition to the current range of role players (the Departments of Health, Welfare, and Education), he believes that the Department of Social Services is a better place to offer support services training. Members of the community must also take responsibility because the domestic violence problem is a societal one, & it would be unfair to place the entire burden for solving it on the State. For example, many NGOs (like the Woman’s Network Against Domestic Violence) can be of assistance, & partnerships between the State and NGOs would be invaluable.

Ms Camerer (NNP) stated that National Commissioner Selebi was disparaging in his remarks about the National Instruction, especially with reference to securing the scene and transporting the victim’s belongings. She wanted to know how the instruction came to be drawn up this way if the National Commissioner is so disparaging.

Dr Geldenhuys indicated that he could not respond to the National Commissioner’s comments as they are outside the scope of his presentation.

Mr Bheki [ANC] commented that the Department may be short of staff, but some of the problems could be caused by shortcomings of the SAPS, e.g., the level of education prevents members from supplying magistrates with relevant information to assist them to reach appropriate judgement. Also, some SAPS members exacerbate the problems, e.g. by raping the victim or demanding bribes before assisting them with transport.

Dr Geldenhuys acknowledged that some corrupt elements still exist in the SAPS, but stated that the Department hopes to deal decisively with the problem, and noted that bribery does not affect only the issue of domestic violence.

A committee member asked when a SAPS member's failure to comply with the Act is caused by a lack of resources, does this constitute misconduct.

Dr Geldenhuys replied that where misconduct is reported, proper hearings are held. However there is no conviction where it was impossible to act.

A question was asked about the affidavit provided for in the Act. Further,
who sees to the safety of the victims in the shelter.

The reply was that an affidavit is provided for in the Domestic Violence Act, which is another form that the police need to take when attending to a complaint. With regard to the second question, he said that it would be difficult to inspect safe shelters. If a shelter is found not to be safe it is removed from the list or proper steps taken.

Gen Viljoen (FF) stated that the instruction should be referred to POPCRU and SAPO to have them advise whether SAPS can withstand the extra burden. Community organisations can be used to alleviate the burden on the SAPS and in the black areas traditional structures could deal with the problem of domestic violence.

Dr Geldenhuys relied that the Department has done extensive research on the implementation of the Act, & expects growing pains in the process. Where they cannot set up services, they will at least mobilise the community. It is the Department’s constitutional obligation to fight crime and this is an opportunity to prevent crime and the SAPS must undertake it.

The Chairperson indicated that some of the questions bordered more on political discussion and that he would urge the Department’s delegation not to respond to those. He wanted to know who determines when protection is no longer needed, & how the problem is addressed when an angry woman reported a complaint of domestic violence, but on calming down reconciled with the man.

Dr Geldenhuys said that the police rely mostly on what victims say happened. Arrest has serious implications – for some types of jobs summary suspension can occur. Training will be given to members of SAPS to enable them to better exercise the judgment required of them in such situations. In the past domestic violence was not properly addressed by SAPS. Intimidation might be another side of the problem. The Act requires the Director of Public Prosecutions to lay down specific guidelines on whether to proceed with an arrest or not. Some guidelines have been issued. The SAPS does not only listen to what the victim says and stop there; victim are advised that a safe shelter will be found for them and that they can return to the common dwelling when it is safe to do so.

Ms Camerer asked who drew up the National Instruction and another member wanted to know if the training manual took into consideration the cultural background to domestic violence.

Dr Geldenhuys indicated that it was drafted by his component, which attempted to research African domestic violence but found very little material on the subject. What was found was used in the manual to inform members on how different cultures deal with domestic violence, but the available information suggests that in every country & culture the problem is the same.

Ms Sigabi [ANC] wanted to find out about the serving of the protection order. In Port Elizabeth she got a complaint that the matter is handled by the Sheriff and a fee of about R60 is required from victims before the order could be served. Who has to serve the protection order between police and Sheriff?

Dr Geldenhuys said that the serving of a protection order in terms of section 13 of the Domestic Violence Act is a normal court process, & a fee is required. However, the regulations make provision for consideration when a complainant cannot pay that the fee be waived. When it is an urgent order police will serve it, with the final order to be served by the Sheriff. The order is effective on being granted by the court, whether or not it is served, if the respondent had an opportunity to appear in court.

Mr R Zondo [ANC] pointed out that concerning the establishment of support systems, RDP funds were allocated to the project but nothing has since happened, and that the SAPS has to take the lead.

The final question concerned Instruction No 8, Duty to assist the complainant to find suitable shelter. Ms S v/d Merwe (ANC) asked why there is always an assumption that children and women have to leave the dwelling. They should remain at home to obviate need for transport and the respondent should be removed.

Dr Geldenhuys pointed out that removal is more complex than that. For instance, if the victim does not lay a charge nothing can be done and the Act does not give police power to remove a perpetrator.

The meeting was then adjourned.