Domestic Violence & Maintenance Acts Implementation: discussion

Meeting report

JOINT MONITORING COMMITTEE ON IMPROVEMENT OF LIFE AND STATUS OF WOMEN
5 April 2000
DOMESTIC VIOLENCE & MAINTENANCE ACTS: IMPLEMENTATION

Documents handed out
None

SUMMARY
The general view was that the Acts are working very well. The only complaints, related to a shortage of court staff to deal with the great number of applications which have inundated the courts since the beginning of this year. The panel indicated that the workload left a tremendous stress on magistrates, prosecutors, and clerks. They indicated a need for more professional and administrative staff. The panel also indicated a desire to work overtime to get through the applications faster. This is something which they have been unable to do because of financial constraints. Other complaints related to administrative equipment and material which though seemingly minor, created significant delays.

All agreed that the police and the court officials worked well together. The magistrates reported that they have had a good response from the police, who seem to be taking these matters seriously.

MINUTES
Delegates from the Cape Town Magistrates Court: Mr Venter (magistrate), Mr Joubert (senior court official), and Mr Steyn (magistrate)

Domestic violence interdicts
Mr Venter said that there had been many applications for domestic violence interdicts since the beginning of this year. This had placed tremendous pressure on the court staff, especially the clerks. On Mondays and Wednesdays NGOs come in to assist them, but even this is not enough to ease the burden. The courts need extra clerks to ensure that there is proper service delivery.

Mr Venter also indicated that they need administrative equipment and materials such as photocopy machines and paper. These issues may seem minor but in daily court practice they cause many delays and make it difficult for the court staff to do their jobs effectively. There are budget constraints that limit the staff in many different ways. One consequence of this is that clerks sometimes serve the processes themselves (instead of paying a sheriff to do it).

Generally, there has been good co-operation with the SAPS. A few police stations, however, also suffer because of the lack of extra personnel.

Maintenance orders
Mr Joubert, a senior officer in the court system, said that they are experiencing a serious problem with a shortage of staff. This heavy burden of work has caused a terrible strain amongst clerks and magistrates. From the middle of January they have received a great deal of applications for emoluments attachment orders (EAO). Dealing with these applications is a time-consuming process because the magistrate must ensure that the conditions applying to the issue of this order, are complied with. The onus is on the clerks to issue the process.

Some magistrate courts are serving an EAO by faxing it. This, they say, saves costs. However, there are problems associated with this method. One such problem is that not everyone has a fax number. There are some magistrates courts which still prefer to use the sheriff for serving process. Mr Joubert indicated that he himself had a personal preference for this method as it is more official, and more effective. In fact, he described it as being ‘’the proper way’’.

Another method of serving process is by doing it through the police. Sometimes however, the police return the process to them, saying that they do not serve maintenance process. Mr Joubert said that this practice was not common in Cape Town. Generally, the EAO is successful and it has been very effective. Mr Joubert said that the Act has ‘’done wonderfully’’.

Warrant of execution
This follows the same process as an EAO, but the costs of this order are higher. The local sheriff needs at least one hundred rand as an upfront guarantee before he will serve the process. Because it is so expensive, the women who apply for it do not always have the means to pay for it.

Mr Joubert requested a better directive from the department regarding the following:
- finances,
- a warrant of execution, and
- garnishee orders (there was not even a clear form for a garnishee order, the court staff had to draft these themselves).

Maintenance investigators

This section of the Act has still not been enforced because the government cannot afford to do so. This section of the Act was described by Mr Joubert as being very important. He explained that many women are desperate, and have some idea of where the man is, but they need someone who can investigate the matter for them. If this section of the Act became operational it would be very useful for such cases. Mr Joubert noted that if these investigators were appointed, they would have to be paid by the State, and that they were currently restrained due to budget constraints.

Mr Steyn, said that there was a lot of pressure on the clerks to cope with the number of violence interdicts that people were applying for. Further, the documents for these interdicts were now much longer than they were before (they are now approximately 2 pages long). Because of this, they took much longer to complete. Mr Steyn indicated that they had tried to shorten it in some ways by removing redundant terms, but these forms still took longer to complete than in the past.

 

Delegates from the Wynberg Magistrates Court: Ms Wilson (prosecutor) and Ms Ajam (prosecutor)
Domestic Violence Court
Ms Wilson, a Wynberg Magistrates Court prosecutor, said that they had started a specialised domestic violence court which has been running from the first of February this year. They had felt that by creating a specialised court with a specialised prosecutor to deal with these cases, they would be able to provide a better service to the community. This system has worked very well so far. A prosecutor had been appointed to this ‘’specialised interdict court’’ after they had created the post. At the moment there are approximately 200 outstanding cases in the specialised interdict court. They receive about 50 – 60 of these cases per month. Ms Wilson said that because of the demand they are thinking of getting two courts.

Regarding their relations with the police, they reported experiencing some problems at first, such as dockets not being opened by the police. However, Ms Wilson said that the police are now taking these cases seriously.

The sentence that comes with this offence is usually suspended imprisonment. The charge laid upon the respondent is usually a contravention of the Act, plus, assault. Ms Wilson indicated that she agreed with Mr Joubert on the issue of the maintenance investigator.

She added that the Maintenance Court in Wynberg tries to sit on Saturday mornings, but it is not easy because of the financial constraints.

Ms Ajam, also a prosecutor, said that, while they are suffering from an extreme staff shortage, implementation has generally worked well, and the police have taken a real interest in these matters. At the moment there is no magistrate who deals specifically with these matters.

The administrative clerks need more help. Simple things like paper, forms, and ‘’hands to photocopy’’ are necessary to deliver an excellent service to the community. She noted that women were becoming more pro-active, and are bringing charges where, in the past, they would have done nothing.

Regarding maintenance, again, there was a shortage of hands. The way it worked was that the clerks do the initial enquiry and try to see if the matter can be resolved. If it is something that they cannot solve, then they pass it on to the prosecutors for them to deal with. The problem is that because the clerks are overworked, they do not have the time to try and resolve these maintenance cases, so more and more cases are getting passed on to the prosecutors.

The constant case postponements which take place is also a problem because people cannot continually get time off work.

Provincial SAPS Commissioner of the Western Cape
Commissioner Marks speaking on behalf of the SAPS said that the Domestic Violence Act and its objectives were both commendable and long overdue. According to Mr Marks, the police in the Western Cape undergo continuous training and evaluation. However, they are suffering from a manpower shortage due to financial constraints. Because of this, it is difficult for them to address the needs of the community as effectively as they need to.

Referring to their relationship with the courts on the enforcement of these Acts, he noted that he had heard reports that certain magistrates were not available after hours (because of financial constraints court staff could not be paid to work overtime). This, he said, was unfortunate, as it was particularly at this time that the community really needed this service to be available. He explained his point by saying that a lot of domestic violence incidents took place over weekends and women often needed interdicts immediately. Unfortunately, if the court staff was not working, then the women could not get the assistance they required. Generally, however, he said that there was good co-operation with the courts.

Mr Steyn responded to Commissioner Marks’s comment that magistrates do not sit after hours by saying that in Wynberg, they have a list of magistrates, prosecutors, and clerks who sit over particular weekends. Thus, they do sit after hours, the police must simply get the list.

The Commissioner replied that the problem existed only in rural areas, and not in the Peninsula.

Discussion
Responding to a question by Ms Ntlabati (ANC, Free State), Mr Venter said that, since the Acts, there had been a significant increase in the workload of the court staff. This was due to the fact that a person could now apply for a warrant of execution, a garnishee order and an emoluments attachment order on the basis of a maintenance order.

Mr Maphalala (ANC) commented that he was pleased with the fact that the police have ongoing training programmes. He noted that he had not heard a similar point made by the other departments and asked the panel what they were doing to empower people to ‘’get involved’’. He also commented that they ought to encourage conscious delivery co-ordination as this would ‘’smooth operations’’.
Commenting on Wynberg’s presentation, he said that he was happy to hear that they had established a specialised department to deal with domestic violence, and suggested that police stations should also have specialised sections to deal with such crimes.

Mr Steyn replied that they train their clerks regularly. They also have outreach programmes with the police, especially in the area of Table View where there are many interdict applications. In addition to this, they also have programs with the Department of Social Services.

Mr Venter added that all the staff had undergone training prior to the implementation of the Act. Because of staff shortages, it is difficult for them to have a specialised court. With more prosecutors and more magistrates they will be able to do the job more effectively.

A committee member asked what happened to a woman who did not have the money to pay for an interdict, was she simply turned away?

The response was that if someone cannot afford to obtain an interdict, they make an order that the state is responsible for the fee. Thus, if someone cannot afford it, they try to help them.

Ms Southgate (ACDP) suggested that there be extended working hours with pay. She commented that she was impressed with Wynberg Court's initiative to create a specialised post and asked them how they paid for it. She suggested the use of more volunteers, even if they are less equipped than employees.

Mr Steyn said that there has been close co-operation with NGOs over the years. An NGO called Mosaic, specifically, gave a lot of voluntary assistance. They had a good set-up in Paarl, Wynberg, and now also in the Cape Town court. Other NGOs wanted to get involved but they want to be compensated for their travelling costs at least.

Ms Wilson said that they did not get an extra prosecutor. They simply took someone that was already working for them, and put that person in a specialised court for domestic violence. The effect of this is that the workload of others increased due to this person being removed from his usual duties.

A committee member asked if the court officials made any effort to mobilise funds from outside of the normal budget, for example, from donors.

The panel responded that the Department of Justice handles the funding and it is not the duty of the courts to seek donors.

Another member asked at what stage the property of the respondent was attached if there was failure on his part to pay maintenance. She also asked what happened in cases where magistrates, prosecutors and sheriffs were not complying with their duties (as someoften protect other men by postponing cases unnecessarily). She asked what the victim could do in such circumstances.

The magistrates panel replied that they do not tolerate unnecessary postponements. Commissioner Marks said that police duty encompasses a twenty four hour service delivery to the community. He continued that the police officials are aware of the fact that if they do not attend to these issues, they can be dismissed.

On the issue of the attachment of property because of arrear maintenance, the panel said that the warrant of execution, the emoluments attachment order, and the garnishee order are all very effective, and many of these have been successfully executed.

The magistrate court has the power to make amendments to maintenance orders which have been granted by the supreme court. Thus, if someone wants a maintenance order amended so that the amount of maintenance is either increased or decreased, then the magistrate court has the power to give effect to this.

Arrears can only be enforced if the matter is brought to the attention of the court. If they get no complaint then they may never prosecute on that matter. One can prosecute for arrears in the magistrate court. In order to claim arrears, the complainant does not have to bring any evidence to prove her case, as the enforcement of arrears is simply an enforcement of Section 31 of the Criminal Procedure Act.

Ms Abrahams (ANC) said that she had received reports in her constituency that the attitude of the police was very bad. In one particular example, someone’s son was arrested, and when the parents went to the police station to enquire, the police officers were extremely rude and did not speak decently to them. They would also not allow the parents to see their child. Ms Abrahams made an appeal to the police, saying that ‘’people must be served decently’’.

Commissioner Marks said that he took full responsibility for the attitude of members of the police force. He promised to address the issue and asked for particulars of the incident, specifically the names of the officers, so that he could investigate the matter. He said, however, that it was difficult and unfair to generalise and say that all police officers had this attitude. Many of them, he said, are diligent and committed.

Ms Witbooi (NNP) asked to what extent the Community Police Forum helped the community.

Commissioner Marks said that the Community Police Forum was very active and that they served as important bridge-builders between the community and the police.

A committee member asked the SAPS representatives to explain the set-up of the Western Cape police stations when women come to report these crimes, can they do so freely and without intimidation. Do you have any ‘’comfort rooms’’?

The response was that comfort rooms are said to be a priority. Some of them have ‘’cubicles’’, where these types of reports could be laid without intimidation. He agreed that it was desirable to have a place where the victim and the perpetrator did not have to come face to face with each other. The police do have a few places like this, but not all the police stations have it.

Due to time constraints, the meeting had to be adjourned.