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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
Maintenance Bill with proposed amendments included (MAN49)
Mr Basset from the Department of Justice went through the amendments to the Maintenance Bill from clause 16 to the end. Clause 1 to 4 of the Domestic Violence Bill were deliberated on.
The chairperson said that the provision which attempts to change the common law position dealing with the preference given to the first child was not sufficient and needs to be re-drafted.
Technical changes were made in this clause, for example, where reference is made to an order, this was changed to read "maintenance order".
17(4)(c) provided for the attachment of the property of the employer who fails to pay over money. Mr Groenewald (NP) questioned the legal basis of the attachment and suggested that a penalty would be sufficient. It was agreed that the legal basis needs to be investigated and Mr Basset was instructed to do so.
Remains the same.
19(a) remains the same.
The chairperson suggested that a procedure needs to be created to cater for the situation where the respondent is no longer employed so that the employer can be released from the responsibility of paying the money. The employer would have to show that the respondent no longer works for him / her.
19(b) would therefore have to be changed to allow for this responsibility to be set aside and that the parties are informed of the change.
It was also suggested that the heading of clause 19 be changed.
Clauses 20 – 21
Another technical change in that the reference to the subpoena was made more specific.
Clauses 23 – 26
This clause is the start of a new chapter 5 which is different from earlier drafts. This clause deals with the execution against property of the respondent. The chairperson issued the instruction to Mr Basset that the procedure used is not contrary to the procedure used in practice for the execution of property.
The heading (attachment of debt) is misleading and a change was suggested.
This clause repeats a procedure dealt with in clause 17. The only difference is that the procedure is now applied to respondents who have been convicted. If it is indeed the same procedure then Mr Basset should delete 33 in its entirety and reference to convicted respondents should be made in the relevant sub-section in clause 17.
The chairperson said that it should be considered whether this clause could be moved under the sub-heading dealing with orders.
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.
No amendments. Mr Hofmeyr had a problem with the words "knowing the evidence to be false or not…" in clause 35, this issue was however not pursued.
Clause 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 present, therefore the perjury would relate to oral evidence and not to a written statement.
No problem with clauses 37 and 38
The chairperson insisted on the removal of the word "general " from the heading of clause 39 "Offences relating to general secrecy" as it was meaningless.
In Clause 40(a), the clause referred to is clause 17(4) and not clause 17(3)(a).
Clause 40(b) is now clause 40(c). The chairperson found the term "a provision" (originally in clause 40(b)) odd. He asked the law advisor to establish whether a person could comply with a provision. If one could do it, it could remain in the clause and if one could not, then " a provision" had to be removed.
Mr Hofmeyr wanted Clause 41(2) to contain an element of wilfulness or intent, but Ms Jana 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 was required.
The members returned to clause 29(7) where the sentence was increased to six months from three months, so that all future "defendants" will get the same sentence and no one will be prejudiced – as it stood there was a six months' sentence in one clause and a three months' sentence in another clause which would create uncertainty and unnecessary discrepancies.
Mr Basset was given a general mandate by the chair to put all offences provide for in the Maintenance Bill under one chapter, that is, chapter 5.
It was pointed out that the clause relates to clause 9 of the Bill and clause 9(2) makes reference to clause 164 of the Criminal Procedure Act which contains the phrase "ignorance arising from youth". According to Mr Hofmeyr the phrase was a tautology. The chairperson said that the wording of the phrase resulted in discrimination. Mr Hofmeyr asked that the clauses from the Criminal Procedure Act which were used in the Act, be incorporated by reference instead of repeating them. The chairperson said that whatever was used from the Criminal Procedure Act had to be repeated because the Criminal Procedure Act did not apply to the bill. Mr Nel sided with Mr Hofmeyr 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 not the Criminal Procedure Act, the difference in the treatment of the same clauses in the two different Acts could result 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. Mr Hofmeyr said that he did not think it would be "untransparent" to incorporate the Criminal Procedure Act by reference. Ms Camerer said that maintenance officers were under-trained and inexperienced. If they complicated the legislation further, women might not be served properly by the Maintenance Act, so the Act must state clearly what it means.
The heading of clause 44 "Rules " to be changed to "Regulations". The chairperson mentioned five clauses with regard to clause 44, which set out the regime for the rules he liked them and wanted them added to all of clause 44.
With regard to this clause, the chair asked Mr Bassett to investigate what the ALA said. In clause 46(3) the word "expiration" changed to "expiring".
Ms Ngwane queried clause 14 where she wanted confirmation that divorced women who had problems with, for example, defaulting, could take their divorce record to the maintenance court and the chairperson confirmed this.
Domestic Violence Bill
There were no changes to the preamble.
The definitions were scrutinised:
Cl1(iii) "child" - it was felt that there was no merit in keeping this definition and it will be removed from the Bill.
Cl1(v) "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 Palumbo from the Law Commission replied that the inherent jurisdiction of the high court could never be excluded
Cl1(vii)(g) "household" - was replaced with "residence".
The chairperson was unhappy with the word(s) "threatens or potentially harms or threatens" in Cl1(viii) and wanted to put it in square brackets for the meantime. The law advisor said that then the element of potentiality should also be removed from viii(a) and (b). The chairperson overturned this suggestion because breadth was needed in viii(a) and (b), but not in (g).
There was a suggestion that "economic abuse" in Cl1(ix) be omitted because it could never on its own constitute domestic violence and there were several other legal remedies to deal with economic abuse. Also if economic abuse was included, the fear was that then the courts could compel a person to make financial contributions and these could always be confused with the maintenance payments. Mr Hofmeyr raised his concern that this would be used as an alternative claim for maintenance. The chairperson suggested that that part of the definition be looked at again – the maintenance issue needed to be captured more solidly so that "economic abuse" could not be used to get maintenance and not only in non-compliance situations. The law advisor, Mr de Lange, was concerned that the economic abuse could only arise if a legal obligation to pay existed, so according to him, whenever economic abuse was looked at, it would always be a maintenance issue. He said the Law Commission would be more comfortable if "economic abuse" was omitted. The chairperson replied that if it came down to desirability, then the committee wanted it in, but if the Law Commission could put forward a legal argument as to why Cl1(ix) should be omitted then they would have to do so. De Lange then suggested that if the committee did not 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 Hofmeyr returned to the definition of "domestic violence" in Cl(viii). He said the word "and" at the end of the second line suggested a two tier test i.e. 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. Mr 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 and "and" will have to be changed in paragraph (viii).
The words "but is not limited to" which appeared in almost every definition was to be removed from all the definitions because the committee members felt that it was cumbersome and unnecessary.
"Physical abuse" in Cl1(viii)(a) and "damage to property" in Cl1(viii)(h) need to be defined more specifically to make them specific acts of domestic violence.
"Emergency monetary relief" in Cl1(x) was a bit of a conundrum as it could never be later than the final order. Ms 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 issue was not whether a person fell into one of the categories but rather whether one had suffered any monetary loss. If one could prove it, then the court would have one compensated. The chairperson did not have a problem with the addition, but he did not think the addition would take the issue any further.
The chairperson was unhappy with the wording of (xii)(b) as it did not capture the idea of the pressure under which the "applicant" was being placed through the phone calls and so (b) will be completely omitted. In clause (xii)(c) - the words "home or work" were removed and the words "or a person associated with the applicant" were to be added.
Under the definition (xiii), the words "to the applicant" were added and the words "any person" were replaced with the word "applicant". The chairperson was concerned with the way the clauses vacillated between the specific and the general as at times the reader would not know who was being abused and who was entitled to take action. For example in Cl1 (xi) it does not mention who suffers the emotional, verbal and psychological abuse.
In response Mr Palumbo wanted to insert a reference to the applicant in every definition. The chairperson said that it was not that simple as there was the problem of including children here too. 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 in clause (viii) and then it would not be necessary to say "towards the applicant "in every ensuing definition and the link to the applicant and the child would be made.
The law advisor was told that the definition of "physical abuse" in Clause 1(xvi) needed a lot more work and the threat of physical abuse must be included in this definition.
Mr Mzizi was not happy with the term "victim" in Clause 1(xxv). He pointed out that if an accused cannot be called a convict then a person cannot be called a victim if the domestic violence has not yet been proved. Generally the chairperson was dissatisfied with the definitions chapter.
Ms Jana suggested looking at other countries, for example Canada, for guidance. Mr Palumbo said that he thought the reason why South African was having problems with the the drafting of this Bill was because other jurisdictions did not make the distinction between applicant and victim like South African did.
The chairperson wanted to know whether this clause was imposing a duty on police officers to find places of safety for victims. Mr De Lange said it was. The chairperson wanted to know whether this was what the old Bill had done. He also said this duty on the police was transgressing the present law because there was a law which prevented the police from driving victims from place to place.
The word "locating" in this clause must be interpreted as finding a place of safety. The words "place of safety" will also have to be defined.
The chairperson created another subclause in clause 2,that is (c), by adding the words "and inform them at the time of handing over the notice… that the applicant can lay criminal charges where applicable".
Clause 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 must assist the victim would be set out in the regulations and Mr Palumbo said this would override subclause 3. The chairperson wanted to be notified when subclause 3 was being discussed to see whether it was that obvious.
The chairperson asked why clause 3 was still in the Bill. Mr de Lange suggested that the Criminal Procedure Act should be amended so that clause 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 concern was that if clause 3 remained in the Bill, the police might not know how to act and that the advantage of having it in the Criminal Procedure Act is that the procedure is set out. Mr De Lange’s response was that if a peace officer makes an arrest then, as such, he 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 pointed out that if anyone thought that the police would not be able to make the link between clause 3 and the Criminal Procedure Act, then clause 3 should not be in the Bill. Mr Groenewald agreed.
Mr Nel was supportive of Mr de Lange’s suggestion which was to keep clause 3 and duplicate it in the Criminal Procedure Act.
Clause 4(1) the term "protection order" is defined in Chapter 1 and "contemplated in section 5" will be deleted.
Clause 4(2) which sets out the clerk's duties or tasks needed to be spelt out. Clause 4(3) has been left out of the amendments.
The word "relief" in clause 4(2) means the right to lodge a criminal complaint.