Domestic Violence Bill [B75-98]: hearings

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Justice and Correctional Services

17 August 1998
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Meeting Summary

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Meeting report

17 August, 1998

Documents handed out
Black Sash
Commission on Gender Equality
Family & Marriage Society of South Africa (FAMSA)
Gender Advocacy Programme (GAP)
National Association of Democratic Lawyers (NADEL)
South African Council of Churches (SACC)
South African Human Rights Commission
Women & Human Rights Project, Community Law Centre

The Deputy Minister, Ms Manto Tshabalala, apologised for absence of the Minister, thanked the South African Law Commission (SALC) and parliament for prioritising this legislation. She commented on the focus both internationally and locally on women and children and its effect on legislation.

Domestic violence has a substantial impact on family and community. Part of the democratisation process is to ensure that this be addressed. The majority of victims are women. In 1995 Human Rights watch report, it stated that SA women are disproportionately likely to be victims of violence.

The intent of the Bill is to give maximum effect to the protection of women and children. It attempts to bring the law into line with other first world centres. She stated that she wanted to make one proposal: In rural areas, districts are huge and it is difficult to get a magistrate to give protection order. There needs to be another provision, that is, to ensure that in rural areas justices of peace are empowered to give protection orders. Further the community needs to know about this procedure. She proposed that justices of peace be supervised by magistrates to ensure records are kept. The SALC could consider phasing it in.

Mr Palumbo of the South African Law Commission outlined the main provisions of the Bill.
The chairperson thanked Mr Palumbo for the excellent summary and congratulated the SALC and project committee. He invited questions of clarity for the Deputy Minister.

Ms P Jana (ANC) requested information about the consultation process with other departments especially Welfare, Health, Safety and Security.
Deputy Minister: One can say there have been consultations, but more needs to be done. At an early stage, the Department met with police, organised a trip to Canada to study the issue of domestic violence. I will go back and say that the committee requests that more consultation takes place.

Ms L Ngwane (ANC): Had the drafters investigated the constitutionality of giving a protection order without the audi alteram principle.

Mr Palumbo: The SALC does not have a final position on this yet. In terms of constitutionality, there is an interim order with return date. The arrest procedure may be problematic – "upon prima facie evidence" will solve the problem.
The chairperson commented that it worries him that the SALC has no position.

Ms E Gandhi (ANC): With regard to the drafting of Section 14 which relates to children, had the Children’s Act been looked at?
Mr Palumbo: A piece-meal approach to legislation regarding children should be avoided - this should be dealt with in the Child Care Act.

Holomisa commented that he was encouraged by the recognition of the fact that rural areas have no magistrates, and use should be made of Justices of the Peace.

Ms F Hajaij (ANC): With regard to Section 6 (5) Emergency monetary relief, was there enough of a mechanism to enforce this?
This involves monetary relief as compensation for loss already suffered, which will not lead to problems.

Govender,P (ANC) requested a report on the progress of the IT system.
Deputy Minister: With regard to the IT system, there is a pilot project (Mitchell’s Plain, Pretoria, Durban, Jo’burg), it connects with SAP and enables us to check an offence,

Mr M Moosa (Chairperson of the Security & Justice Select Committee) noted that they had one month to process this legislation. Does the SALC need additional help? Would removing the clause on children have any impact? He further noted that the seven commissioners of the Commission must meet as they have not sat yet and reached a final position regarding constitutionality.

Mr Palumbo said the Commission would meet on the 28th. If they remove the section on children there would be no impact on the ability to issue a protection order.

The Chairperson stated that the Department needs to look at a concrete implementation plan across the departments. On the IT programme, he said it was a bigger problem than anticipated. The committee of National Crime Prevention Strategy looking at a solution.

Ms Elise Delport of the Commission for Gender Equality (CGE), welcomed the Bill in principle. The Commission made the following recommendations:
- section 1(4)(d): include reference to "clan"
- section 1(21): extend the definition of "shared household"
- immigrants need language of choice
- immunity where arrest unlawful
- section 4 (9): put limit on time
- section 5 affords respondent adequate time. The Commission maintains justifiable and reasonable limit. Reinforces doesn’t diffuse situation. Given attacks on women in courts. Call on constitutional court to give declaration on the final order.
- section 6: prohibitions may be difficult to enforce. Magistrate should be given less discretion, and he should give written reasons for his judgement.
- "emergency relief" for dependent children: it is important to have services paid for by the state.
- section 10: (granting of final protection order) must be capable of implementation.
- section 16(2) detracts from the purpose of the "in camera" provision and can cause unease.
- section 20: penalties are far too lenient and the maximum period should be ten years.

Ms Victoria Meyer of the South African Human Rights Commission, presented their submission.

The rest of the meeting was not minuted.


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