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JUSTICE PORTFOLIO COMMITTEE
22 July 1998
DOMESTIC VIOLENCE BILL & CRIMINAL MATTERS AMENDMENT BILL:
Documents handed out:
Domestic Violence Bill [B75-98]
Summary of submissions on Witness Protection & Services Bill [B9-98]
The committee were briefed on the Domestic Violence and the Criminal Matters Amendment Bills. Committee members expressed concern about the constitutionality of some of the clauses contained in the Domestic Violence Bill. The working group dealing with this Bill was asked to come up with precedents from countries with a Bill of Rights similar to that of South Africa before the committee would be prepared to accept the Bill.
DOMESTIC VIOLENCE BILL: BRIEFING
The aim of the Bill is to address the inadequacies of the Prevention of Family Violence Act 133/93 with the intention of affording greater protection to the victims of family violence.
This clause deals with the wording of the rights of the victim that needs to be read to the victim at the scene of the incident. Also a copy, in the victims preferred language, must be left in his/her possession for closer scrutiny. The position brought to the briefing was that the exact wording as contained in the Bill should be incorporated. However in the personal opinion of the presenter, a member of the working group dealing with the Bill, it should be divided into sections.
Clause 5 and 10:
Deals with the granting of an interim order and final order respectively. Clause 5 gives the court the power to grant interim orders without the knowledge of the respondent. At the return date a final order is made and the respondent can defend himself here if he shows up. The presenter argues that in a domestic relationship the application for an interim order could place the victim in danger if the respondent knows about it, as is the case under the old dispensation. Clause 5 therefore seeks to afford a greater degree of protection.
The purpose of having the proceedings behind closed doors is to afford the victim protection.
The presenter said that according to research, rehabilitation was in most cases ineffective therefore imprisonment was the only option.
Imprisonment is also a sanction for members of the SAP who do not comply with clauses 2, 8, 11(3), and 14(1). This is to ensure that the legislation is effective and to show that the entire justice system is responsible for victims of domestic violence.
Response by committee members:
The chairperson was critical of clause 5, asking the presenter to show precedent from other jurisdictions for granting an interim order without the knowledge of the respondent. Reasons for the criticism were as follows:
a) the applicant could use the interim order to win battles in the press. The first time the respondent finds out that there is an order against him/her will be via the media. The chair mentioned that this could be a weapon for unscrupulous divorce lawyers.
b) because of the above, the constitutionality is therefore in question.
The next response was to clause 11 also raised by the chair. The clause makes it obligatory for a court to issue a warrant of arrest along with the interim order. If the respondent contravenes the order then in terms of 11(2) the applicant decides whether the respondent has indeed done so. The SAP then, on the strength of the applicant’s affidavit alone, must arrest the respondent. The presenter explained that the SAP has a history of not arresting if it is left to their discretion. The chair again wanted precedent.
The presenter gave the example that in various countries a warrant is issued but the discretion to arrest remained with the police. This explanation did not help the clause since, under clause 11, it is the applicant who decides when the respondent is arrested. This could result in an unreliable applicant causing the arrest of a person. If the arrest was unjustified then the respondent has an
action against the state. The constitutional court would according to the chair strike down such a law relating to arrest and detention.
Mr D Gibson (DP) felt that the reading of the long passage under clause 2 by policemen was impractical because there are policemen who are illiterate. Mr Landers (ANC) added that there was no clarity as to what the police were supposed to do. Were they to carry this speech with them at all times, read it in English even if the victim does not understand, and if the clause calls for a written version to be handed over in the language of the victim's choice, then why should it not be read in that language since there is no point in reading something they do not understand?
The presenter said that in his opinion, as mentioned earlier, dividing the long statement would solve the problem.
Mr. Gibson then went on to criticise clause 14(2) which prevents the respondent from claiming against a professional who makes a claim in good faith in terms of 14(1). He questioned the constitutionality of this clause. There was a general feeling amongst the members that 14(1) dealing with children should be dealt with in the Child Care Act. But if it is to be dealt with in this Bill that it should be fleshed out because no procedure is given as to what happens after a report in terms of 14(1) is made. The welfare of children cannot be dealt with in a matter of a few lines. There was also a feeling that clause 15 dealing with marital rape should fall under sexual offences.
The constitutionality of clause 16 was also considered. The media could attack the closed proceedings. The chair wanted to know what exactly the ‘in camera’ clause meant because the Bill was very vague.
The chair asked the presenter to go back to the working group and consider especially the clauses which could be ruled to be unconstitutional. They would have to come up with precedents from countries with a Bill of Rights like ours before the committee would be prepared to accept the Bill.
CRIMINAL MATTERS AMENDMENT BILL: BRIEFING
With only twenty minutes left, the next presenter was asked to be brief and only mention the important changes that the Bill makes.
Patients were reviewed every five years under the Criminal Procedure Act. The Bill changes it to six months. The Attorney-General is not given the only say in determining whether an application for release by a state patient should be referred to a judge in chambers.
The presenter referred to a clause, which allows for patients to be institutionalised while the court decides if the person is indeed a state patient. He says that, according to a Canadian case, this is unconstitutional and should be changed.
Time had expired and the presenter was asked to make amendments and to explain all the changes from the previous act. This would then be dealt with on the return date.
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