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JUSTICE PORTFOLIO COMMITTEE
10 September 1998
DOMESTIC VIOLENCE BILL [B75-98]: DISCUSSION
Documents handed out:
Summary of submissions on Domestic Violence Bill (DOM24)
Comparison of SA Law Commission's Proposed Bill & Original Domestic Violence Bill [B75-98] (DOM27)
The Domestic Violence Bill [B75-98] was discussed in light of submissions which had been made. The meeting only had time to take into consideration amendments on the first clauses of the bill. On 11 September the rest are to be dealt with.
1 Comparison of SA Law Commission's Proposed Bill & Original Domestic Violence Bill [B75-98]
Mr Palumbo from the SA Law Commission pointed out changes to the Domestic Violence Bill as suggested in the document "Two domestic violence bills proposed by the South African Law Commission" (DOM27). The changes were presented as follows:
* Preamble DOM27 skips it "since the bill is to speak for itself".
* 1. Definitions (iii): 'Child' is defined separately instead of as part of (vii) in Domestic Violence Bill (DVB), which is the definition of 'domestic violence'.
(vii): 'Domestic violence' is defined more tightly than in DVB, and includes only economic abuse as a specified sub-form, ie. only (d) of subsections (a) to (i) in DVB. These subsections are therefore not defined either, as they are in DVB.
* 2. Duty to inform victim and applicant of rights (1) The detailed quotation to be used by police officers to inform victims of domestic violence of their rights, (a), is omitted. As a consequence, (b) is skipped as well. In DOM27, the information included in the quote is outlined under new points (a) to (g), describing the duties of the police when they arrive at a scene of domestic violence.
* 3. Arrest by peace officer without warrant DOM27 adds 'physical' before violence, so that the sentence goes as follows: 'A peace officer may . . . arrest any person . . . having committed an offence containing an element of physical violence'.
* 5. Power to grant interim protection order DOM27 adds/changes the following, given in capital letters:
(1) 'If the court is satisfied that THERE IS PRIMA FACIE EVIDENCE THAT the respondent is committing, or has committed, OR IS LIKELY TO COMMIT an act of domestic violence ...'.
(5) 'The return date . . . may be anticipated by the respondent upon NOT LESS THAN 48 HOURS' WRITTEN notice ...'.
* 6. Terms of protection order DOM27 removes (8).
* 10. Power to grant final protection order. The law commission sums up the 13 subpoints in 6 subpoints.
* 11. Warrant of arrest and procedure upon arrest of respondent (3) (a) is changed to: 'Any member of the SA Police Service must execute a warrant of arrest IF SHE OR HE IS SATISFIED upon receipt of an affidavit by the applicant ...'.
(6) (a) is moved to the latter part of (5) so that (6) (b) becomes (a) and (c) becomes (b). DOM27's (6) (b) includes: 'A respondent arrested . . . shall, AT THE DISCRETION OF THE ATTORNEY GENERAL, be criminally charged ...'.
* 12. Amendment or setting aside of final protection order by applicant
(1) DOM27 corrects the mistake that reference should be to Form 7, not 6.
* 14. Obligations to report ill-treatment of children DOM27 adds that the suspicion of child abuse should be 'reasonable'.
* 15. Rape OR INDECENT ASSAULT of wife by her husband Both in the headline and in the text body, DOM27 adds 'indecent assault' to rape when dealing with the case of marriage violence.
* 16. Proceeding in camera DOM27 adds point no. (2) in (1), thus making the numberings superfluous.
* 18. Costs The whole sentence is changed, from: 'No order of costs shall be granted against any party to proceedings in terms of this Act', to: 'The court may only make an order as to costs against any party if it is satisfied that such party has acted frivolously, vexatiously and unreasonably'.
II. Analysis Of Submissions and Deliberations on the Bill
Mr Palumbo presented the Summary of submissions on the Domestic Violence Bill (DOM24). The documents, DOM24 and DOM27, now were to lay the basis for the committee's debate on amendments to be made to the original Domestic Violence Bill.
The chairperson, Mr J de Lange, found the law commission's proposal to remove the preamble 'odd'. It was thus refused.
The chairperson also refused the two other suggestions for change of the preamble, made by Focus on Elder Abuse and the National Assembly of Democratic Lawyers respectively. He hardly met objections on his refusals:
The former demand of including the elderly as a group especially vulnerable to domestic violence, was said to be too specific and superfluous. According to Mr De Lange, since the Bill aims at protecting all kind of victims, no specific ones have to be specified. He thus ignored Mr Palumbo's point that women and children already are specified in the preamble.
The National Association of Democratic Lawyers's proposal to include training of personnel was refused by the chairperson on grounds of structure of the Bill. Implementation plans, De Lange held, should be spelled out not in the preamble, but in separate sections elsewhere in the Bill.
* 1. Definitions The chairperson's suggestion was approved to organise the treatment of the proposals made by submissions according to the concepts and their relative importance rather than, as the structure of DOM24 suggests, dealing with the views of each submitting organ separately.
(vii) 'DOMESTIC VIOLENCE'
The chairperson argued that this definition as it appears in the Bill is neither too narrow nor too wide, and that it is in line with international documents which South Africa already has signed.
On this basis, he refused suggestions made by the Law Commission to narrow the definition down; and by Black Sash, Cape Law Society, SA National Council for Child and Family Welfare, Gender Advocacy Programme, Law Society of South Africa, Rape Crisis (Cape Town), Women & Human Rights Project (Community Law Centre UWC), Institute of Criminology (UCT) - to extend the definition.
Mr De Lange argued against the point made by the five latter organs as well as by Cape Law Society that single acts of violence should be highlighted as equally serious cases of domestic violence as repeated ones. According to the chairperson, single acts of violence are included even if this is not specified in the definition. However, he ignored the common stress put by the organisations on including threats of violence as a form of domestic violence.
The chairperson's refusal to alter the definition of domestic violence was not considerably challenged by any committee member.
(vi) 'DOMESTIC RELATIONSHIP'
The submissions put forward by the Commission of Gender Equality, National Association of Democratic Lawyers and Rape Crisis (Cape Town), Women & Human Rights (Community Law Centre, UWC), and Institute of Criminology (UCT) all emphasise that a domestic relationship should be defined as to include customary relationships such as clan, kinship and the extended family.
Mr Palumbo pointed out that subpoint (f) of point (vi) could be interpreted as to include such types. Mr De Lange referred to points (c) and (d) to make the same argument, namely that such relationships implicitly are included in the definition already. However, his doubts on whether this actually was the case made him request Mr Palumbo to investigate further the extent to which 'customary' relationships could be said to be included in the original definition of domestic relationship.
The submission made by Campus Law Clinic, University of Natal-Durban was refused by both Mr De Lange and Palumbo, since domestic violence may affect others that those between whom there is an 'emotional relationship'. Cape Law Society's proposal to define 'sexual relationship of any duration' more closely was also seen as irrelevant.
Again, as debate yet was to surface, the chairperson and the law commission official could set the agenda and provide solutions quite independently.
(viii) 'ECONOMIC ABUSE'
As a consequence of the chairperson's proposal, the committee now started to consider altering definitions of notions included in the two main concepts already dealt with. 'Economic abuse' is the first such notion, integrated as a sub-type of 'domestic violence' (vii).
Only the Cape Law Society had submitted a suggestion for change on this point. Here, Mr De Lange agreed to delete the words 'any or all' in (a). He also came to argue to take the Law Commission's suggestion into account, ie. including the word 'unreasonable' so that the resulting definition begins with 'the unreasonable deprivation or threatened deprivation of economic and financial resources ...'.
The chairperson's suggestion was passed.
The Bill regards 'intimidation' as one kind of domestic violence, and therefore defines it.
Claiming that the definition is broad enough, the chairperson and the committee with him refused the addition proposed by the Focus on Elder Abuse.
(xi) 'HARASSMENT' and (xxiii) 'STALKING'
'Harassment' and 'stalking' are seen as other forms of domestic violence.
Rape Crisis (Cape Town), Women & Human Rights (Community Law Centre, UWC), Institute of Criminology (UCT) as well as NICRO Western Cape state that the definitions of these concepts are too narrow. Mr De Lange's reply that they were broad enough was accepted by the committee.
In their focus on 'harassment', NICRO also worries that the word 'pattern' excludes single acts of harassment, which may be as equally humiliating for the victim as repeated ones. The committee conceded to the argument made by Mr De Lange that a 'pattern' does not exclude single events of harassment, and thus, that the definition should remain unchanged.
However, NICRO's point that a perpetrator's harassment of people closely related to the victim also should be included in the definition, was taken up by Mr De Lange and the committee as a whole - with only one objection from Mr J Maree (NP), who saw this as superfluous and overlapping with elements in the definition of 'domestic violence'.
(xv) 'PHYSICAL ABUSE'
The bill places 'physical abuse' as the first type of domestic violence.
Its definition is contested by NICRO Western Cape only. Their request to narrow the concept down from 'assault' to 'physical assault' was, however, seen by the committee as contradicting the intention of broadening the definitions as far as it is possible and relevant.
(xx) 'SEXUAL ABUSE'
NICRO's point that 'sexual abuse' should be defined as 'unwanted', was seen as neither necessary nor relevant by the Mr L Landers (ANC) and the rest of the committee.
Mr Landers further critiqued the definition for being vague on the point of when 'sexual integrity' is violated. Hence, Mr De Lange passed the solution that more information should be gathered before a final formulation of this definition could be agreed on.
The debate raised by the definition of 'sexual abuse' brought the committee back to clarifying the concept of 'stalking'. Mr Palumbo argued that it should be included as a type of 'harassment'. Mr R Groenewald (NP) raised the question whether 'accosting' was the correct translation of the corresponding word in the Afrikaans version of the definition. None of these points were taken into further consideration by the committee.
(viii) 'EMOTIONAL, VERBAL AND PSYCHOLOGICAL ABUSE'
The definition of this form of domestic violence was proposed altered by NICRO to include the word 'pattern', so that single incidents would not qualify. This suggestion was refused by Mr De Lange and the committee as unnecessary, since all sub-points of the definition state that the acts of violence must be 'repeated'.
(ix) 'EMERGENCY MONETARY RELIEF'
After some debate, the proposals for specifying, in the definition, funding for counselling, psychiatric assistance and transport costs - made by NICRO, the National Association of Democratic Lawyers, Rape Crisis (Cape Town), Women & Human Rights (Community Law Centre, UWC), Institute of Criminology (UCT, and SA Human Rights Commission - were not taken on board.
Mr De Lange argued that the definition already was clear enough. As well, he pointed to the formulation 'includes but is not limited to' in front of some specified uses of monetary relief, indication the lack of limitations as to what type of expenses a victim would be able to find refund for. According to him, any possibility for emergency monetary relief would anyway depend on the decisions made by the magistrate court on the basis of evidence put forward by the victim there. The committee endorsed this viewpoint.
The chairperson now summed up the disagreements faced by the committee this far: on the definitions of 'harassment', 'sexual integrity' and on harmonising 'harassment' and stalking'. He underlined that the committee had chosen to deviate from the Law Commission's proposed tight definition of 'domestic violence'. However, it included the suggestion in DOM27 to include a separate definition of 'child'.
However, before the session on definitions was closed, certain committee members brought some last definitions to the fore for clarification.
(xxi) 'SHARED HOUSEHOLD'
In order to limit this definition, Mr De Lange proposed to add 'in the recent past' to 'where the applicant and respondent live or lived together. This would also apply to the subsection (g) of (vi), the definition of 'domestic violence', to be changed to 'they share or shared IN THE RECENT PAST the same household or residence'.
Imam G Solomon (ANC) then asked him to specify what he meant by 'recent', to which Mr De Lange replied that this should be decided upon in each separate case.
Finally, however, Mr Palumbo's proposal to adopt the use of 'residence' (xviii) rather than 'shared household' was accepted. Thus, (vi) (g) will exclude 'shared household', and the entire definition (xxi) will be left behind. The committee still came to support the chairperson's proposal of limiting residence commonality in time.
(i) 'APPLICANT' & (xix) 'RESPONDENT'
The request made by the National Association of Democratic Lawyers to let the definitions of these constructs specify that non-South African citizens are included, was seen as irrelevant by the committee since both are defined as 'any person', implicitly a person of any citizenship residing in SA.
(xiv) 'PEACE OFFICER', (xxii) 'SHERIFF', (v) 'DANGEROUS WEAPON' and (ii) 'ARM'
The South African National Council for Child and Family Welfare's idea that the definitions of the first three of the above concepts should not refer to other Acts, was not accepted. Simultaneously, the committee endorsed Mr De Lange's proposal to skip defining 'sheriff' and 'peace officer' at all, whereas 'dangerous weapon' and 'arm' still will be defined separately.
Lastly, Mr De Lange raised the question why the definition of domestic relationship (vi) includes, between brackets under (b), 'whether or not they are of the same or of the opposite sex'. Mr Palumbo's reply was that it represented a measure to protect people living in gay and lesbian relationships, seemed irrelevant for Mr De Lange who saw the definition as already giving protection to any kind of relationship, including homosexual ones, even if not specified. Mr A Nel (ANC) then commented that maybe the magistrate would not have the same (open) view as Mr De Lange on this question, and that the inclusion of this sentence thus was justified. Mr De Lange accepted.
* 2. Duty to inform victim and applicant of rights, the committee only had time to discuss this issue on the basis of the amendment proposal made by the Law Commission, not taking the other submissions into account. The debate took the following shape:
De Lange: 'Policemen are not the best equipped to give this information. Therefore, a brochure to hand over to the victims would help them. So, what is the purpose with the long quotation in (1)(a) on what police officers could tell victims?'
Ms D Jana (ANC): 'The quotation should be reduced and made less formal so that it easily can be handed over to victims'.
Ms M Dyani (PAC): 'But it is unrealistic to aim at conscientising each and every police officer. They must be committed themselves. The pamphlet they give must anyway be translated into all eleven languages'.
Mr A Nel: 'As well, the obligations of the police should be more clearly worded'.
Mr R Groenewald: 'The language problem the police will face in talking with victims must be addressed'.
Jana: 'Even if implementation will be a huge problem, due to the character of the police, to language barriers and to illiteracy, still this section on information to victims is too crucial to be skipped. Anyway, we work on a long-term basis'.
De Lange. 'Hence, let this section of the Bill be altered so that it will (1) clearly spell out and reinforce the duties of the police, in order to get real assistance on the scene, (2) outline how information is to be communicated and spread, based on what is doable on that scene.'
Nel: 'What should the police do, then, if they arrive at the scene without the pamphlet?'
De Lange: 'Still, the brochure must be produced, since it is more realistic than providing the necessary language skills to all police officers,'
Nel: 'Still, the pamphlet may become an easy excuse for not talking with the people concerned.'
De Lange: 'Thus, let's add that (3) a pamphlet to be handed over to the victim on her/his rights are to be produced in all 11 languages'.
Dyani: 'The clause will then be watered down. The police MUST convey the information verbally as well!'
De Lange: 'What the police say on the scene where the situation is dramatic, is not so important as their information may be ignored anyway. More important is to give the police the duty to provide assistance and information. As well, in (3), the pamphlet to be used by the police must be tabled in parliament before being put to use.'
Mr P Madikizela (ANC): 'Talking to the people concerned is more important than giving them a piece of paper'.
De Lange: 'But how do we provide for that ideal given the capacities of the police to give proper explanations to people in such situations? The only possible solution is to require the police at least to provide people with written information, and as far as possible to explain orally as well'.
Madikizela: 'Still, training of the police is necessary'.
De Lange: Ok, let's add: 'central to implementation is that the police will need thorough training, and that within six months the SAPS provide the committee with a report on steps taken in this regard' '.
The last hour of the meeting was not monitored.
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