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PORTFOLIO COMMITTEE ON JUSTICE
23 October 1998
DOMESTIC VIOLENCE BILL: DISCUSSION
Documents handed out
Domestic Violence Bill (7th draft)
Domestic Violence Bill [B75– 98]
The Chairperson, Mr De Lange (ANC) referred to the clause providing that the breach of protection order is a criminal offence. He noted that breach of a protection order could result in an additional criminal offence arising from the mode of breaching the order (e.g. an assault, unlawful entry). He asked the legal advisers to ensure that the clause does not preclude the option of legal action from being taken in respect of the second offence (it may be inferred that a person should not be prosecuted for two crimes if those crimes arise out of the same conduct). He suggested that the Bill should provide that if a protection order is breached the police can prosecute, but this does not preclude the applicant from bringing a separate prosecution in respect of a second crime arising out of the conduct that breaches the order.
Mr De Lange also noted, with satisfaction, that the Bill provides that when a protection order is breached the police may arrest the respondent immediately if they consider the applicant to be in imminent harm from the respondent. Otherwise they may require the respondent to appear in court on a future date in respect of the breach.
Mr De Lange asked for a crime of making a false affidavit to be inserted into the section of the Bill dealing with criminal offences. The Committee agreed that the making of a false affidavit should be specifically criminalised for the purposes of this legislation, despite the fact that the making of a false affidavit is already a crime.
Mr De Lange referred to clause 7 which deals with the court’s power to order the confiscation of a ‘dangerous weapon’ in certain circumstances. He noted that the definition of ‘dangerous weapon’ is very wide because of the special subject matter of this Bill. He said the power of confiscation should not be used outside of the Bill and asked the legal advisers to tie the provision to ‘domestic relationships’ to ensure this result.
Mr De Lange referred to the clause dealing with closed (‘in camera’) proceedings. He said that prohibiting the persons from revealing the names of parties would not adequately protect those parties’ privacy because other information can be used to identify a person (e.g. their position in the community). He asked for the words ‘directly or indirectly’ to be inserted between ‘which’ and ‘might’ so that the provisions reads ‘which might directly or indirectly identify’. The committee agreed to this wording.
Mr Mzizi (IFP) said that he had difficulty with the fact that the Bill provides that non-consensual sex which occurs between husband and wife is rape (precludes marriage from being a defence to a charge of rape), stating that there is no concept of rape within a customary marriage. Mr De Lange said that sex without consent is rape whether in or out of marriage and that the provision would stand, but it would be preferable to have the provision in the Sexual Offences Act.
The monitor left before the close of the meeting.