Maintenance Bill [b72-98]; Domestic Violence bill [B75-98]: discussion

Meeting report

JUSTICE PORTFOLIO COMMITTEE
15 September 1998
MAINTENANCE BILL [B72-98]; DOMESTIC VIOLENCE BILL [B75-98]: DISCUSSION

Document handed out
Working Draft of the Domestic Violence Bill as of 15/9/98

DETAILED MINUTES
The meeting started with a clause-by-clause analysis of the Maintenance Bill. The chairperson said that the two issues which concerned him were:
being about pensions in the Act, as received and what the social assistance Act and the Aged Persons Ace said about the pensions and the attachment thereof for the payment of maintenance,
being the Alienation of Land Act because it allows for the cession from the employee to the employer – the implications of this sounded horrendous to the chairperson i.e. the right to maintenance can be ceded by the employee to the employer.

Then the chapter starting with "other offences" page 24 of the document (MAN 49) was discussed.

No amendments to section 35.

Section 36 contains a phrase "… shall be deemed to have committed perjury…" the chairperson suggested that "be deemed to have " be omitted because all the elements of perjury may not necessarily be there therefore the perjury would relate to oral evidence and not to a written statement.

Mr Hofmeyer had a problem with the words "knowing the evidence to be false or not…" in section 35, this issue was however not pursued.

No problem with sections 37 and 38

The chairperson insisted on the removal of the word "general " from the heading of section 39 "offences relating to general secrecy" saying that he didn’t know how one could have general secrecy and he didn’t know what amount to general secrecy.

Section 40(a), the section referred to here is the section 17(4) and not section 17(3)(a).

Section 40(b) is now section 40(c) and the chairperson asked that "a provision" (originally in section 40(b)) be removed because it sounded odd, he said he wasn’t sure whether a person could comply with a provision, if one could do it, it could remain in the section and if one couldn’t then " a provision" had to be removed.

Mr Hofmeyer wanted S41(2) to contain an element of wilfulness or intent, but the Indian people said that this would exclude incidents of negligence and this should be avoided. The chair said that the clause should remain unchanged and that it should be left to the courts to interpret what type of mens rea is required.

The members went to section 29(7) the sentence had to be increased to six months instead of 3 months, so that all future "defendants" will get the same sentence and no one will be prejudice – having a 6 months sentence in one clause and then a 3 months in another clause would create uncertainty and unnecessary disrepancies.

Mr Basset was given a general mandate by the chair to put all offences provide for in the Maintenance Bill under one offence chapter i.e. chapter 5.

Then section 42 was discussed. It was said that the section relates to clause 9 of the Bill and clause 9(2) makes reference to section 164 of the Bill which contains the phrase "ignorance arising from youth" (lots of jokes followed).

According to Hofmeyer the phrase was a tantology. The chairperson asked, "why state the obvious", but on a more serious note said that the wording of the phrase resulted in discrimination. Hofmeyer asked that the clauses from the Criminal Procedure Act which were used in the Act, be incorporated by reference instead of repeating in the Act since that already appear in the Criminal Procedure Act e.g. referred to section 164 of the Criminal Procedure Act. The chairperson said that whatever was used from the Criminal Procedure Act had to be repeated because the Criminal Procedure Act doesn’t apply to the bill. Mr Nel sided with Hofmeyer on this issue because he felt that if the Criminal Procedure Act clauses were repeated in the Maintenance Act, but they were acted upon according to the Maintenance Act and no the Criminal Procedure Act, the difference is the treatment of the same clauses in the two different Acts could results in uncertainty in the law. The chair said that if incorporation by reference was a quicker way to draft the Bill then he would agree to it. Hofmeyer said that he didn’t think it would be "untransparent" to incorporate the Criminal Procedure Act by reference. Ms Camerer said that maintenance officers were undertrained therefore they are inexperienced and inadequate and if we complicate the legislation further, women may not be served properly by the Maintenance Act, so why doesn’t the Act just say what it means the chairperson said that the act is but that the members are looking for shorter terms in which to say it.

Then it was said that section 8(4) is currently in subclause 3 , subclause 1 contains section 164 of the Criminal Procedure Act and subclause 3 has the old section 8(4). The chairperson said that they had 2 options, one is sections 164… apply mutatis mutandis and 8(4) is kept the way it is therefore it doesn’t crate an offence, secondly subclause 1 and 2 are either spelled out completely or not, but subclause 3 has to be spelled out the way it is.

The heading of section 44 "rules " to be changed to "regulations". The chairperson mentioned 5 clauses with regard to section 44, which set out the regime for the rules he liked them and wanted them added to all of this clause. With regard to section 46: "Repeal or Amendment of laws and savings"’ the chair asked Mr Bassett to investigate what the ALA said. Section 46(3) the word "expiration" changed to "expiring". Ms Ngwane had a problem with clause 14 on page 20 of the amended bill, she wanted confirmation that divorced women who had problems with for example default, variations etc. could take their divorce record to the maintenance court and the chairperson gave her this confirmation.

The meeting continued with a discussion of the Domestic Violence Amendment Bill.

Firstly there were no changes to the preamble. The definitions were then dealt with:
"child" – the men felt that there was no merit in keeping this definition and it will be removed from the Bill.
"court" - "family courts" was added to the definition. The chairperson said since no mention was made of high courts in the definition, did this mean that they were excluded. Mr Palambo from the Law Commission feverishly answered that the inherent jurisdiction of the high court can never be excluded. The chairperson baited him further by saying that even so, surely the same procedures couldn’t be followed in a high court as in a family court. Palambo said that the would add "high courts" to the definition, the chairperson didn’t agree with this, and he suggested that this should be left out for some clarity (something I don’t think Palambo could offer). On page 3 of the Bill the word "household" was replaced with "residence" in (g) at the top of the page.

The chairperson was unhappy with the word(s) "threatens or potentially harms or threatens" in (g) and wanted it put in square brackets in the meanwhile. Palambo or De Lange for the Law Commission the said shouldn’t the element of potentiality then also be removed from (viii(a) and (b)), the chairperson said no because the breadth was needed in viii(a) and (b), but not in (g). there was a suggestion that "economic abuse" be omitted because it can never on its own constitute domestic violence and besides that there are several other legal remedies to deal with economic abuse. Also if economic abuse is included the fear is that then the courts can compel a person to make financial contributions and these could always be confused with the maintenance payments. Mr Hofmeyer raised his fear that it will be used as an alternative claim for maintenance. The chairperson suggested that, that part of the definition be looked at again – the maintenance issue needs to be captured more solidly so that "economic abuse" cant be used to get maintenance and not only in non-compliance situations. De Lange (from Law Commission) was concern with that the economic abuse can only arise if a legal obligation to pay exists, so according to him whichever economic abuse is looked at, it will always be a maintenance issue.

The chair asked, "what is being done about this?", and De Lange responded by saying that the Law Commission would be more comfortable if "economic abuse" (ix) was omitted. The chairperson said if it comes down to desirability, then the committee wants it in, but if the Law Commission can put forward a legal argument on why is (ix) should be omitted then they would have to do so. De Lange then suggested that if the committee didn’t want maintenance excluded from (ix) then a clause should be put in the Bill stating that nothing in it overrides the Maintenance
Act and this would also create a more specific way of dealing with (ix).

Mr Hofmeyer jumped back to the definition of "domestic violence", he said the word "and" at the end of the second line of (viii) page 3 suggested a two tier test i.e. that an applicant would have to prove what is required in paragraph viii and prove one or more on the list a-I under paragraph viii. The chairperson said that "and" should be removed, Hofmeyr said it should be retained because proving what comes after the "and" is what distinguishes domestic violence from any other form of violence. The chairperson disagreed with Hofmeyr and "and" will have to changed in paragraph viii. The words "but is not limited to" which appear in almost every definition must be removed from all the definitions because the committee members felt that it was cumbersome and unnecessary. "Physical abuse and damage to property" needs to be defined more specifically to make them specific acts of domestic violence.

On the words "emergency relief" the chairperson said that this clause was a bit of a conundrum, therefore when you ask for emergency, it can never be later than the final order. Camerer wanted the words "subsistence or money for food" added to the list in (x). The chairperson said that it could be added to the list, but that the real issues is not whether you fall into the categories expressed in (x) but rather whether you’ve suffered any monetary loss and if you can prove that you have, then the court will compensate you or at least have you compensated. The chairperson didn’t have a problem with the addition, but he didn’t think the addition will take the issue any further.

Under the definition xiii, the words "to the applicant" were added. The chairperson was unhappy with the wording of xii(b) therefore it didn’t capture the idea of the pressure under which the "applicant" is being placed through the phone call and so (b) will be completely omitted.

In clause xii© - the words "home or work" were removed and the words "or a person associated with the applicant" were to be added.

Clause xiii – the words "any person" should be replaced with the word "applicant", the chairperson was upset with the way the clauses vasullated between the specific and the general, because he said at times the reader wouldn’t know who was being abused and who was entitled to take action e.g. (xi) doesn’t mention who suffers the emotional, verbal and psychological abuse.
In response Mr Palambo wanted to insert a reference to the applicant in every definition. The chairperson said that it wasn’t that simple and that wasn’t the biggest problem, what about the child? Imam Solomons suggested that these definitions be linked to the domestic violence definition in some way because then an automatic reference to the applicant and the child is established. De Lange suggested that the words "towards the applicant or child …" should be inserted at clause viii and then it wouldn’t be necessary to say to the applicant "in every ensuing definition and the link to the applicant and the child would be made.
(Sorry, I didn’t here the response to De Lange.)

Definition in clause xvi on the words "physical abuse" – the chairperson said that this definition needed a lot more work and he wanted the threat of physical abuse included in this definition.

Clause xxv the word "victim" – Baba(first name) didn’t like this definition at all, he asked if an accused can be call a convict. The response was that no, we cant, and he continued and asked why then do we call a person a victim if the domestic violence hasn’t yet been proved? Generally the chairperson was unhappy with the definitions chapter.

The Indian people suggested looking at other countries e.g. Canada for guidance. Palambo said that he thinks the reason why South African is having problem with this the drafting of this Bill is because other jurisdiction don’t make the distinction between applicant and victim like South African does.

Page 52 – the chairperson wanted to know whether this section was imposing a duty on police officers to find places of safety for victims. De Lange said yes. The chairperson wanted to know whether this was what the old Bill did. He also said this duty on the police was transgressing the present law because there is a law which prevents the police from driving victims from place to place.

The word "locating" in this section must be interpreted as finding a place of safety. The words "place of safety" will also have to be defined.

The chairperson created a © subclause in section 2, by adding the words "and inform them at the time of handing over the notice…" and subclause © would be a simple quote to say that the applicant can lay criminal charges where applicable. Section 2(2) and (3) have to be moved and where it says "make such arrangements" the chairperson suggested that it be replaced by the words "to assist".

The chairperson also said that the way in which the clerk of the court will assist the victim will be set out in the regulations and Palambo said this would override subcluase 3. The chairperson wanted to be notified when subclause 3 was being discussed to see whether it was that obvious. The chairperson asked why section 3 was still in the Bill. De Lange suggested that the Criminal Procedure Act should be amended to that section 3 would be reflected in it instead of in the Bill and then reference could be made to the Criminal Procedure Act.

The chairperson’s problem was that it section 3 remained in the Bill, the police may not know how to act and that the advantage of having it in the Criminal Procedure Act is that the procedure is set out. De Lange’s response was that if a peace officer makes an arrest then as such, should know how to effect an arrest. But the point was raised that a magistrate could also be a peace officer and may not necessarily know the procedure. It was said that if anyone thought that the police wont be able to make the link between section 3 and the Criminal Procedure Act, then section 3 shouldn’t be in the Bill – Groenewald agreed.

Nel was supportive of De Lange’s suggestion which was to keep section 3 and duplicate it in the Criminal Procedure Act. Section 4(2) which sets out the clerks duties or tasks need to be spelled out. Section 4(3) has been left out of the amendments. The word "relief" in section 4(2) means the right to lodge a criminal complaint. Section 4(1) – protection order is defined in chapter 1 and "contemplated" in section 5 will be deleted.