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JUSTICE PORTFOLIO COMMITTEE
11 September 1998
DOMESTIC VIOLENCE BILL [B75-98]: DISCUSSION
Documents handed out
Domestic Violence Bill
Summary of submissions on Domestic Violence Bill
Clauses 4, 5, 6 and 11 of the Bill were discussed.
The committee agreed that 4(2) should not apply to applicants who are represented. It was further agreed that the regulations to the Bill would spell out the information which the clerk of the court should give to the unrepresented applicant with regard to the relief available in terms of the Bill. It was further said by the committee that 4(2) would only find application when once the applicant has brought the application to court. The duty which rests on the clerk would then take effect.
Mr O’Malley (IFP) wanted to know whether it was possible to get a final order without getting an interim order first. Mr Palumbo responded by saying that the procedure as spelt out in the Bill is mandatory i.e. the applicant should first apply for an interim order and then for a final order. But he added that the applicant has the option of following the high court procedure for getting an interdict.
The chairperson argued that legal fees are astronomical and therefore the applicants should not be forced to appear in court twice because it implies that applicants would have to pay for counsel whenever they appear in court. Mr Hofmeyr (ANC) agreed with the chairperson and added that a dual procedure i.e. provision for interim and final orders where they apply respectively would mean that many consequential amendments would have to be made to the Bill. The committee agreed that provision should be made for an applicant who would want a final order in lieu of an interim order. The chairperson asked Mr Palumbo to research the issue, but he should not change the Bill completely seeing that the committee is bound by strict time constraints.
The committee agreed that 5(1) serves as the basis on which the court order is granted. Furthermore the chairperson asserted that the court in 5(2) should not be allowed to refuse an ex parte application if it is satisfied that the act of domestic violence is coupled with harm which is imminent. It was said that the imminent harm test is a test used in USA jurisdiction and that there is no plausible reason which prohibits its use by RSA jurisdictions.
Mr Hofmeyr wanted to know whether "imminent harm" relates only to physical harm or whether it incorporates other forms of harm as well. The chairperson responded by saying that it may include other forms of harm as well, provided that such harm is imminent and linked to the act of domestic violence, for example imminent economic harm. But ultimately the matter would have to be decided on by the courts.
The committee also agreed that in cases where the applicant makes and ex parte application, only emergency economic relief would be granted in favour of the applicant as opposed to other forms of economic relief.
Mr Hofmeyr wanted to know whether 6(16) applies to maintenance orders and, if so, whether the Bill does then intrude on maintenance issues. The committee then agreed that the definition of economic abuse was too broad and should be narrowed down so as to ensure that maintenance issues are not covered by the definition.
The committee further agreed that the concept of "imminent harm" should be linked to the definition of economic abuse, in order to qualify the definition. The joint submission by Rape Crisis, Women and Human Rights Project and the Institute of Criminology was considered by the committee. The submission states that an order for emergency economic relief should have the effect of a civil judgement. This issue was flagged because no "execution" provisions are included in the Bill. It was decided that in lieu of making such an order a civil judgement, it would be better to make it a civil debt. This would mean that the Magistrate Court Act rules will apply if a problem of non-payment should occur. It was further agreed that when the final order was granted, such an order would then have the effect of a civil judgement.
Mr Nel wanted to know whether an order granted by a court pertaining to a domestic violence issue could overrule a maintenance order granted by another court in terms of 6(7). This issue was flagged and the department was asked to research the issue. The chairperson suggested that the committee analyse clause 11.
The chairperson suggested that a threshold should be created which the respondent must overstep before s/he can be put in prison. The concept of "imminent harm" should therefore be incorporated in the provision.
He further suggested that the provision would not apply to interim ex parte application orders. The police should not have an open discretion as put in this clause. Furthermore, the New Zealand jurisdiction have a list of factors the court have to consider in order to ascertain whether "imminent harm" is present in a particular case, and it was suggested by the chairperson that our courts, or at least the Bill, should use these factors.
Mr Palumbo suggested that the warrant as is stipulated in the provision should be done away with and the police should use section 40 of the Criminal Procedure Act to execute this provision. The department was asked to effect the necessary amendments.
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