Domestic Violence Bill & Maintenance Bill: briefing

Discussion document on the Maintenance Bill

Rape Crisis/Women & Human Rights Project Submission on Domestic Violence Bill (see Appendix)

Ms de Villiers, researcher for the committee, briefed the committee on the Domestic Violence and Maintenance Bills. Contentious issues in these bills were fully discussed. It was proposed that Customary Law hearings should be taken to rural areas within the next week. The Department of Labour will be asked to address the committee on the effects of its UIF report proposals on women. It was decided to invite representatives of Labour, Business and Government for a panel discussion on how they are integrating a gender perspective into the Job Summit. The committee will be meeting most Mondays in September.

Domestic Violence Bill

Contentious issues:

- the granting of an interim protection order without notice to respond

- the warrant of arrest upon breach of order

Both these issues could be challenged constitutionally.

Ms De Villiers (Committee researcher) briefed the committee on these bills Compared with the 1993 version, the Domestic Violence Bill has a very wide definition of who can apply for a protection order and what is domestic violence, and the wide powers of court to order anything necessary for protection. A concern is the definition of domestic violence which is too wide, for example, the inclusion of terms such as "stalking".

A very contentious issue in the Bill is that the respondent has no warning before the application for a protection order. Further if the affidavit states that the order has been breached, the police must arrest the respondent. So the respondent has no chance at all to state his case. This is a core difficulty in the Bill. It conflicts with the general rule in our law that notice must be given to the respondent as well as the right of a person to freedom and security.

The committee needs to weigh up the rights of the respondent and a woman’s right to be free from violence. To be considered:

Should the definition of domestic violence be made narrower and linked more to physical violence? But even with verbal abuse, if you give the respondent notice, this could lead to immediate physical abuse. The respondent does have a right to go to court within 24 hours to defend himself – magistrate will listen to his arguments or affidavit.

Should a difference be made in procedure for arrest between that for the interim order and the final order? Should the police be given discretion to arrest? However this was weakness in 1993 version – because police do not want to arrest in domestic violence cases.

Questions and comments from the committee (names of speakers not identified)

- On criminalisation of domestic violence, should respondent be criminally liable if he breaches an order, or are there alternatives such as compulsory counselling? It could be argued that a prison sentence or fine could be a deterrent. But would women find it more difficult to take action if they know a criminal charge is possible?

- Does protection extend to those married under customary law? And what about the safety of a woman if she makes a complaint? Especially if one's culture recognises the right of a husband to beat his wife.

- There is the whole question of how to inform suffering rural women that there is law that protects them? There is a need in rural areas to educate women that a husband has no rights "to beat his love into her". This committee should recognise that the situation is caused by dependency and that rural women have no other option – they cannot leave because they are financially dependent. Prospects for women can only change if jobs improve.

- The departure form the general rule of serving notice may lead to the law being taken to the Constitutional Court. One must be careful to pass what will not be blocked, otherwise the law will not be implemented and women will not be helped.

- How much consultation was there before drafting the Bill?

Answers to questions

Ms Govender: The crux of the matter is economic dependence. Until women are empowered, it will be difficult to implement Bill. On how to access rights and make women aware of the law - this must be the role of the Justice administration. The government and the Communications department must allocate resources and spread the information through media, for example, community radio, schools, churches, NGOs. The role of this committee must be to alert other organisations and monitor that they are disseminating information.

On how to empower women – must challenge acceptance of women and ask questions of parliament and institutions.

De Villiers : Customary law – see page 3 of Rape Crisis submission. The Bill deals with family members – should this be broadened because of customary law?

Rural areas – Justice ministry has proposed introduction of justices of the peace at community level – where magistrates are far away and difficult to reach.

Economic dependency – Bill assists by providing that court may order the respondent to pay emergency expenses – e.g hospital, travelling costs, rent etc. If he does not pay, like a civil judgement – court must pay money.

Departing from the general rule in our law – a central question around this Bill. It has been argued that women are so vulnerable and domestic violence is so prevalent, desperate measures are necessary for protection. Domestic violence is different to anything else in our law therefore it is justified to have different procedures.

Ms Govender: The justice of the peace issue was raised at a late stage and needs more debate. There are questions around their training, what orders they could make and how to appoint them. There is a need because of the problem of accessibility for rural women, but perhaps there are other ways of doing this.

De Villiers : Regarding consultation – the Bill originated in the Law Commission. There was extensive consultation, the Law Commission took it to rural areas, held workshops. Many of the suggestions in earlier submissions are contained in the Bill. Ms Govender recommended committee members join in the ANC study groups on the Bill

Maintenance Bill

Ms de Villiers briefed the committee. The Law Commission is exploring a longer-term proposal of an administrative formula replacing court application. Meanwhile this Bill is to replace the 1963 version.

A major innovation is that if the respondent does not come to court, the court can make an order by default. A second important change is that previously if respondent did not pay, a criminal conviction was needed before money could be deducted from his salary which was very difficult. Under the new Bill, as soon as the order is made by Maintenance Court, the money can be deducted from the salary. This will make a huge difference where people are employed. The maintenance investigators will be able to find out about the respondent’s salary and they can serve the subpoena.

Further issues about this Bill:

- Criticism that it focuses too much on children – that duty of support should be wider. The Justice committee is looking at this

- There is a suggestion that instead of an initial letter, there should be an immediate subpoena to come to court, listing all documents to bring.

- Question of how maintenance amounts are to be determined (at present the maintenance officer often applies pressure on woman to settle for lower amounts to finish the case quickly). In consultative documents issued earlier by the Justice department, principles and guidelines for determining maintenance were laid down. These have been taken out of the Bill. Should they be re-included? An important issue is that maintenance awards are incredibly low. Ms De Villiers recommended members read the Black Sash report on their investigation of maintenance awards.

- Question of legal representation in maintenance matters which are not provided by Legal Aid Board. There is compelling reason why the claimant should be legally represented because the money affects their lives in every way.

Question and comments by committee members

Whether the Bill applies to homosexuals and the children they may adopt?

Regarding the obligation of an employer to deduct money from salary – is this followed up?

The guidelines for maintenance awards must be in the Bill, otherwise level of maintenance will not be properly worked out.

Training of maintenance officers and composition of department – women should be employed in the department dealing with these matters

Answers to the questions

- Homosexuals do fall under the Bill.

- There would be a court order issued to the employer to deduct the money.

- There should be further debate about the inclusion of guidelines in the Bill. If they are published in the form of regulations, they are hardly consulted. However if they are contained in the regulations, they can easily be changed from time to time.

- Maintenance officer have very low status, comparable to a traffic court official. This needs to be addressed. There is a need for highly-specialised officers, sensitive to women’s needs.

Ms Govender commented that computerisation is an important need to prevent loss of information.

Customary Law hearings

Ms Govender said that funding has been secured for the customary law hearings to be held in the rural areas. Two committee members volunteered on request from the chair to work with the Parliamentary women’s group and PED to ensure most urgently they get on track with hearings. They must happen within the next four weeks.

Unemployment Insurance Fund

Ms Govender said that a letter has been sent to the Labour department requesting their report and she would ask for a member of the department to address the committee on the effects of the proposals on women.

Job Summit

Ms Govender proposed they invite a panel discussion with representatives from labour, business and government – to share ideas on how they are intergrating a gender perspective in their research and job proposals and training. They could also invite others who can interrogate the presenters from a gender perspective – perhaps from the Gender Commission and NGOs . Out of the panel discussion, the committee can develop its specific suggestions.

The chairman will circulate the reports of Business and Labour to members for studying before the panel discussion. The last date given for the Job Summit was mid-September.

This committee has four weeks left in which to cover the Job Summit, UIF report, Customary Law Bill, Report on Cedaw and Annual Report. Ms Govender therefore proposed that the committee meet on 3 out 4 Mondays if not 4. The committee clerk was asked to send letters to other members of committee requesting reasons for their absence and letters to Whips of other parties about the poor attendance as few apologies had been received.

WOMEN & HUMAN RIGHTS PROJECT, COMMUNITY LAW CENTRE, UWC

SUBMISSION: DOMESTIC VIOLENCE BILL [B75-98]

INTRODUCTION:

It can be said (at the risk of oversimplifying the issue) that there are two possible responses to domestic violence: it can either be taken seriously – or not. It is estimated that one in every six women in South Africa is subjected to domestic violence (many organisations now place this figure at closer to one in every four).1 Research has shown that a significant percentage of unnatural female deaths is attributable to spouses or intimate partners.2 This is the reality which the legislature, and specifically this Portfolio Committee, has to face when considering amendments to the existing Prevention of Family Violence Act.3 This submission therefore emphasises the need for legislation which accommodates effective protective measures for victims of domestic violence.

The argument for protective legislation is strengthened by the inclusion of the right to be free from all forms of violence (both public and private) in the Constitution, 4 as well as section 7(2)5 which imposes a positive duty on the state to ensure the practical realisation of this right. In terms of international human rights jurisprudence, states also have certain duties to establish and maintain the necessary legal and extra-legal institutions and remedies through which human rights can be guaranteed.6This obligation to ensure the exercise of rights implies that states must prevent, investigate and punish any violation of protected rights, and moreover, if possible, attempt to restore the rights violated and provide compensation for damage resulting from such violation.7 These duties, which are founded on a paradigm of gender equality and an understanding that violence against women is a violation of human rights, are embodied in several international human rights instruments, including the Convention on the Elimination of All Forms of Discrimination Against Women, the Beijing Platform and the Declaration on the Elimination of Violence Against Women.8

While this submission focuses on proposals of a ‘technical’ nature (in the sense that it emphasizes the contents of the proposed legislation), it would be irresponsible to omit mention of the fact that the ultimate success or failure of the legislation lies not only in its text, but also in its practical implementation. It may not fall within the province of the legislature to dictate to the executive on issues of training of personnel or budget allocation; however, a strong indication of the importance of these issues will go a long way to reflect a political will to take domestic violence seriously.

This submission was prepared specifically in response to the recently introduced Domestic Violence Bill,9 but should be read in conjunction with the submissions made by Rape Crisis (Cape Town) and the Women and Human Rights Project (Community Law Centre, UWC) to the South African Law Commission during May 1997 and to the Justice Portfolio Committee during June 1997.10 We are indebted to the participants in a workshop recently held by Rape Crisis (Cape Town), the Institute of Criminology (UCT) and the Human Rights Commission for their valuable comments on the Bill.11

1. CLAUSE 1: DEFINITIONS

a) Definition of ‘domestic relationship’ [1(vi)(d)]

The concept of ‘affinity’ employed here may not be broad enough to encompass the extended family relationships created by customary marriages.

Recommendation:

1(vi)(d): ‘they are family members related by consanguinity, affinity, adoption or customary law;’

b) Definition of ‘domestic violence’ [1(vii)]

Whilst the broader definition of domestic violence provided for in the Bill is welcomed,12 we believe that it is important to provide further guidance indicating that single acts or threats may amount to domestic violence as conceptualised under the Bill. A number of acts or threats, which may appear to be minor or trivial when viewed in isolation, may similarly amount to domestic violence.

This proposal is based on the potential for a court, when considering a particular form of behaviour, to conclude that such behaviour does not fall within the definition of domestic violence, because it consists of a single and isolated act or threat. Practical experience has shown that most often, only multiple acts or threats are regarded as domestic violence.13 This has also been identified as a problem in other jurisdictions, for example, the US.14 (This position may be attributed to the historical lack of clarity on a definition of domestic violence as well as the persistent gender bias that prevails within court structures.)

Whilst these suggestions are currently incorporated in the section of the Bill dealing with the terms of the protection order,15 we propose that it be provided for expressly within the definition of domestic violence in clause 1. As the conduct of the respondent will be evaluated against the Bill’s definition of domestic violence, it is critical that the aforementioned suggestion is incorporated within such definition.16 (Note: this proposal implies that the present subsec 6(8) will fall away.)

Recommendation:

1(vii): ‘"domestic violence" means any controlling or abusive behaviour that harms the health, safety and wellbeing of the applicant or any child in the care of the applicant; provided that a single act or threat may constitute domestic violence and that a number of acts or threats which when viewed in isolation, may appear to be minor or trivial, may constitute domestic violence and that domestic violence includes but is not limited to...’

c) Definition of ‘emergency monetary relief’ [1(ix)]

The Memorandum on the Bill clearly states that the purpose of awarding emergency monetary relief is to prevent the applicant from suffering further anxiety and crisis because of financial obligations such as rent and educational expenses for children.17 It is clear that the objectives of the legislation are to ensure that:

The applicant is not prevented from proceeding with the application because she lacks the necessary financial resources because of, for example, concerns regarding rent, alternative accommodation, or children’s school fees;

The respondent does not frustrate the protective effect of an order through the withholding of financial assistance; and

The applicant and/or the children are able to receive medical and psychological attention required as a result of the domestic violence. (It should be noted that the inclusion of emergency monetary relief as a component of the relief which the applicant can seek from the court, also assists the state in that the cost of providing the requisite medical care to the applicant is borne by the respondent and not by the state. This avoids further strain on already limited state resources.)

The present clause is however incomplete in that it omits reference to psychological and/or psychiatric expenses (which could alternatively be renamed ‘trauma counselling’). ‘Moving and accommodation expenses’ should be amplified to expressly include transport expenses. In addition, the clause should be expanded to include both ‘monetary losses suffered’ and ‘expenses incurred’.

Recommendation:

1(ix): ‘"Emergency monetary relief " means compensation for monetary losses suffered or expenses incurred by the applicant and any child at the time of the issue of the interim protection order as a result of the domestic violence and includes but is not limited to -

(a) loss of earnings;

(b) medical, psychological and/or psychiatric and dental expenses;

(c) moving, transport and accommodation expenses; or

(d) interim expenses.’

d) Definition of ‘harassment’ [1(xi)]

We are concerned that the present definition, by referring to a ‘pattern of conduct’, is too limited.

Recommendation:

1(xi): ‘"Harassment" means engaging in conduct that induces the fear of harm...’

e) Definition of ‘stalking’ [1(xxiii)]

We are concerned that the present definition is limited, and accordingly propose an alternative formulation.18

Recommendation:

1(xxiii): ‘"stalking" means behaviour that causes the applicant to fear for his or her safety or for another person’s safety and includes but is not limited to -

(a) repeatedly following the applicant from place to place;

(b) repeatedly communicating with the applicant in any way;

(c) watching his or her place of residence, employment or any place the applicant frequents for social purposes;

(d) engaging in threatening conduct directed at him or her or any member of their family; or

(e) pursuing or accosting the applicant.’

2. CLAUSE 2: DUTY TO INFORM VICTIM AND APPLICANT OF RIGHTS

The present clause imposes a positive duty on members of the South African Police Service to inform a victim of domestic violence of certain rights, such as her right to request the assistance of a member of the SAPS to protect her and her children.

Although the inclusion of information to be conveyed to the victim in the body of legislation may appear unusual in South African context, it is important to note that the present clause clearly sets out all information usually required by victims of domestic violence, thus facilitating the task of the SAPS member. It should also be noted that this formulation is commonly employed in other jurisdictions, for example, in Michigan State and New York State legislation.19

The placing of such a formulation within the body of the legislation is essential, given the historical reluctance on the part of the SAPS to provide information and assistance to victims of domestic violence.20 We do not believe that the requirement of informing victims of their rights places any additional burden on the SAPS, as this should form part of their current line function.21 To counter a potential argument that it would be unduly burdensome to the police to have the explanation available in all official languages, it is submitted that this information would only generally be required in the languages used by the majority of people in a particular geographic area.

In addition, the Constitution in section 9(1) states that ‘everyone is equal before that law and has the right to equal protection and benefit of the law’. Equality has been interpreted by the Constitutional Court as referring to substantive equality.22 In the context of domestic violence we would argue that in order for women to be afforded substantive equal protection under the law it is essential that they are informed of these rights as formulated in this section.

It has been argued successfully in the United States that a failure to inform victims of domestic violence of their rights may constitute a violation of the right to equal protection. In Czachorowksi v Degenhart23 several battered women sued the Erie County police department for its failure to comply with a state law requiring officers to advise victims of domestic violence of their legal rights and available services. The case was settled for a change of policy: the police agreed to give each domestic violence victim an informational form, conduct training with their officers and institute a complaint procedure for victims. In a similar claim against the Louisville and Jefferson County (Kentucky) police department, a US District Court found that plaintiffs had stated an unequal protection claim against the defendants for their alleged failure to inform victims of their rights and failure to obtain medical care.24

It should also be noted that the National Victim Empowerment Policy which is embodied within the National Crime Prevention Strategy will be of little effect unless it is translated into legislation. It is our belief is that this legislation is the formal embodiment of this policy in that it very clearly places a positive duty on the state to adhere to the tenets of victim empowerment within the criminal justice process.

We therefore support the retention of subsection 2(1) in its entirety. We are however concerned that the present provision may be limited in a number of ways:

a) The positive duty to inform the victim of her/his rights is imposed on the SAPS member only at the scene of an incident of domestic violence, or when the incident of domestic violence is reported. This, in effect, excludes situations where a SAPS member may be informed of an incident of domestic violence (by the victim or a third party). In this situation no positive duty rests on the member to inform the victim of her/his rights.

b) Apart from the obligation imposed on SAPS members to provide the victim with information on how to obtain a protection order, the rights of the victim are restricted to a right ‘to request’ assistance. The effect of this is that victims may indeed request assistance from a SAPS member, for example, in locating a place of safety, but there is no positive duty on the member to actually provide the required assistance.

We therefore propose the following formulation, which is also couched in simpler language:

Recommendation:

2(1)(a): ‘... ‘Any member of the South African Police Service, at the scene of an incident of domestic violence, when an incident of domestic violence is reported or when such member is informed of an incident of domestic violence by the victim or a third party, must...‘

(I) You have the right to police assistance to protect yourself and your children;

(ii) The police are obliged to provide you with information on how to obtain a protection order.

(iii) The protection order can obtained from the Magistrates Court at any time of the day or night and will be served on the abuser, free of charge;

(iv) You may request the court not to disclose your address to the abuser;25

(v) The abuser can be order to pay emergency monetary relief and any or all contact with you or your children may be prohibited;

(vi) You may also request the court to evict the abuser or prohibit the abuser from preventing you to enter the shared household;

(vii) This order is temporary, and if you want it to be confirmed, you may have to appear in court at a later date;

(vii) You also have the right to police assistance in locating and taking you and your children to a place of safety, including a shelter, the home of a family member or friend, or any other place of safety;

(ix) If you or your children need medical treatment, you have the right to police assistance in obtaining such medical treatment;

(x) If you or your children need any counselling or support, you have the right to police assistance in contacting an organisation in your area which can offer these services to you and your children;

(xi) You have the right to lodge a criminal complaint against the abuser, if a criminal offence has been committed against you or your children. You may do this now, or at any time in the future;

(xii) Should you obtain a protection order, or lodge a criminal complaint, in which false facts are knowingly alleged, you may be convicted of an offence; and

(xiii) If you do not understand any of the above information, you may request more detail from myself or any other member of the SAPS that you may be more comfortable with.

Alternatively:

Should it be considered that this amount of detail is inappropriate for this legislation, we would argue that the rights in points (iii) - (vii) are contained within the right in point (ii).

3. CLAUSE 3: ARREST BY PEACE OFFICER WITHOUT WARRANT

In our experience, one of the major practical problems experienced by victims of domestic violence is the reluctance displayed by members of the SAPS to arrest alleged perpetrators at the scene of an incident of domestic violence or when a complaint of domestic violence is registered.

Section 40 of the Criminal Procedure Act26 authorizes police officials to arrest persons suspected of having committed certain offences. Apart from these specified offences,27 section 40 also authorizes the arrest (without a warrant of arrest) of a person whom the peace officer reasonably suspects of having committed an offence referred to in Schedule 1 of the Criminal Procedure Act. The following offences listed in Schedule 1 are of particular relevance in the context of domestic violence: rape, indecent assault, assault (when a dangerous wound is inflicted),28 malicious injury to property, breaking or entering any premises, and any offence which may lead to punishment of a period of imprisonment exceeding six months without the option of a fine.

In terms of the current definitions of criminal offences under common and statutory law, acts of domestic violence are often categorised as ‘common’ assault, or assault with intention to do grievous bodily harm (frequently without the infliction of a ‘dangerous wound’). Sentences as a rule do not exceed six months’ imprisonment without the option of a fine. This has the implication that a peace officer would generally not have the authority to arrest a person suspected of having committed assault in a domestic context.

At present the seemingly anomalous situation exists that where a violent partner damages a woman’s property, he may be arrested without a warrant under section 40(1)(b), since the offence of malicious damage to property is included in Schedule 1. However, where he assaults her, he cannot be arrested, unless the assault takes place in the presence of the police official, or a dangerous wound is inflicted.

The Bill amends this position by empowering peace officers to arrest perpetrators of domestic violence without a warrant of arrest under certain circumstances. (It should be noted that this power of arrest does not apply to all situations of domestic violence as defined in the Bill: it merely refers to incidents which constitute criminal offences under common and statutory criminal law. We propose that this should be clarified by insertion of the word ‘criminal’.) We are however concerned that this power can only be exercised ‘at the scene of an incident of domestic violence’.

Recommendation:

A peace officer may at the scene of an incident of domestic violence or upon report of a domestic violence offence without a warrant arrest any person whom he or she reasonably suspects of having committed a criminal offence containing an element of violence.

4. CLAUSE 4: APPLICATION FOR PROTECTION ORDER

a) Duty of assistance imposed on clerk of the court

In the light of the well-documented fact that women who are not legally represented at the stage of lodging an application do not always receive adequate assistance from the clerk of the court,29 we are of the opinion that a duty should be placed on the clerk of the court to assist the applicant to fill in the forms and depose to an affidavit. The Minnesota Domestic Abuse Act,30 for example, provides that ‘the court shall provide simplified forms and clerical assistance to help with the writing and filing of a petition ‘.31

Recommendation:

4(2): ‘The clerk of the court must -

(a) inform the applicant of the relief available in terms of this Act; and

(b) assist the applicant in making an application for an interim protection order.’

b) Definition of ‘material interest’ [4(4)]

Subsection 4(4) provides that the application may be brought on behalf of the applicant by any other person who has a ‘material interest in the well being of the applicant’, provided that the application must be brought with the consent of the applicant (except in circumstances where the applicant is a minor, mentally retarded, unconscious or under the influence of intoxicating liquor or drugs).

We are concerned about the inclusion of the requirement that the person who is bringing the application must have a ‘material interest in the wellbeing of the applicant’. It is not clear how this requirement should be interpreted. A limited interpretation of ‘material interest’ may result in the denial of locus standi to a person wishing to bring an application on behalf of the applicant; an overly wide interpretation on the other hand may result in well-meaning persons intervening against the wishes of an applicant who may, for example, be temporarily intoxicated.

In relation to parties whose consent is required it may be preferable to use the notion of agency which allows the victim greater control than consenting to an application being brought on her behalf, since an agent would be required to carry out the mandate of the principal (victim). Where the applicant can not provide the required mandate due to reasons of minority or mental disability, the criterion of ‘material interest’ should be retained. (It should be noted that this proposal potentially limits the ambit of the legislation by reducing the number of third parties who may lodge applications on behalf of the applicant.)

Recommendation:

4(4): ‘Notwithstanding the provisions of any other law, the application may be brought by the applicant or her agent (including but not limited to a counsellor, a health service provider, member of the South African Police Service, social worker or teacher): Provided that the applicant may be brought by a person with a material interest in the well-being of the applicant where the applicant is -

(a) a minor; or

(b) mentally disabled.’

c) Bringing applications outside ordinary court hours [4(6)]

Although a 24-hour service should already strictly speaking be in operation, practical experience has shown that this service is seldom accessible to victims or non-governmental organisations due to lack of information on, for example, how to contact the duty clerk or magistrate after court hours.

Recommendation:

4(6): ‘The application may be brought outside ordinary court hours or on a day which is not an ordinary court day: Provided that the clerk of the court must make information regarding duty personnel available to police stations in the area of jurisdiction of the court and to non-governmental organisations operating in the court’s area of jurisdiction.’

d) Omission of applicant’s address from the protection order [4(8)]

The present provision in effect imposes a duty on the applicant to request the omission of her address from the protection order. This may lead to practical difficulties where an applicant, because of lack of information, does not expressly bring this application.

Recommendation:

4(8): ‘The physical address of the applicant must be omitted from the protection order, unless the nature of the terms of the order necessitates inclusion of such address.’

5. CLAUSE 5: POWER TO GRANT INTERIM PROTECTION ORDER WITHOUT NOTICE TO THE RESPONDENT

The granting of a protection order without notice to the respondent has been one of the most hotly debated issues under the present Act, and concern has been expressed that the procedure proposed under the Bill may violate the audi alteram partem rule, as well as section 34 of the Constitution which provides for a right to have a dispute decided in a fair public hearing before a court or another independent and impartial tribunal or forum.32 This submission will not repeat the substance of this debate, which is set out in detail in the Law Commission’s Discussion paper.33

Our position is the following: we concur with the approach followed in the Bill, which allows for the granting of an ex parte protection order, without notice to the respondent. No express allegation of urgency or ‘imminent harm’34 is required. This provisional protection order in effect constitutes a rule nisi, and includes a return date upon which the respondent may appear to contest the confirmation of the order.

It is important to note:

a) The proposed provision does not disregard the audi alteram partem rule, but merely allows for a departure from the general rule, based on the specific nature of domestic violence. It has been stated clearly that while the audi alteram principle requires the hearing to be given before the decision is taken, the dictates of natural justice may in exceptional cases be satisfied by affording the individual concerned a hearing after the prejudicial decision:

‘This may be so, for instance, in cases where the party making the decision is necessarily required to act with expedition, or where for some other reason it is not feasible to give a hearing before the decision is taken.’35

We maintain that domestic violence situations by their very nature resort under this exception.

b) An ex parte order will only be issued if the court is satisfied that the respondent is committing, or has committed, an act of domestic violence.36 Since there will thus already be a finding that the applicant’s right to freedom from violence has been violated (or that such violation is imminent), the very basis for granting an order already assumes urgency or imminent harm. An additional requirement of urgency (in order to dispense with notice) not only places an unwieldy burden on the applicant,37 but constitutes a lack of understanding of the nature of domestic violence which would divide incidents of domestic violence into ‘situations requiring urgent intervention’ and ‘less serious, less urgent’ situations.38

c) The Law Commission has expressed the view that, since ‘[f]amily violence situations are extraordinary ones in all cases’, it is justified to issue ex parte orders in all circumstances without the need for a requirement of urgency or imminent danger.39 The Commission cites the following opinion, with which we concur:

‘... [t]he issuance of ex parte interdicts is essential in family violence situations. To argue to the contrary ignores the very essence of domestic violence. It is well known that the most dangerous time for any domestic violence victim is when she tries to separate herself from her abusive partner. Obtaining an interdict is exactly the type of action likely to trigger a violent response. To give the batterer advance notice of the victim’s intended behaviour will prove catastrophic in many situations, and it will be impossible to predict when danger will arise.’40

d) In determining whether the limitation of the respondent’s right to be heard as constituted in section 34 of the Constitution,41 is permissible under section 36(1), a court should (inter alia) consider the nature of the right, the importance of the purpose of the limitation, the nature and extent of the limitation, the relation between the limitation and its purpose and less restrictive means to achieve the purpose. While it may be difficult to pose a comprehensive argument based on comparable foreign law,42 we would argue that a careful analysis of these considerations should show the limitation to be reasonable and justifiable. This is apparent, for example, from consideration of the importance of the purpose of the limitation (viz to protect victims from further domestic violence),43 and the nature and extent of the limitation (which allows the respondent a hearing at a later stage, rather than denying this opportunity altogether).

6. CLAUSE 6: TERMS OF THE PROTECTION ORDER

a) ‘Best interests of the applicant’ [6(1)( c)]

In terms of this clause, the court may prohibit the respondent from entering the shared household. The court may impose this prohibition only if it appears to be in the ‘best interests’ of the applicant or any child.

We propose that the ‘best interest’ requirement should be deleted, since it imposes an additional burden on the applicant and could exacerbate existing reluctance on the part of magistrates to include such a term in the order.44 It could also lead to unnecessary and protracted legal argument about the meaning and extent of the term.

It may however be asked whether a statutory provision allowing for an eviction order (in the absence of a qualifying criterion) may constitute an impermissible violation of the respondent’s right not to be evicted without an order of court made after considering all the relevant circumstances.45 Even if an unconditional power to evict infringes this right, we submit that this limitation is justifiable under section 36(1). It should be noted that at present, there are only a few private shelters for abused women in South Africa, and all are based in urban areas.46 In Cape Town, for example, only one shelter offers free accommodation to women.47 In addition, council housing in townships is scarce and prospective lessees are placed on long waiting lists. Furthermore, the economically disadvantaged position of South African women precludes many women from renting property at market-related prices. In the majority of cases, women who decide to leave a violent relationship have to take responsibility for minor children, which further limits their ability to find a safe refuge outside the marital home.

It is therefore clear that the objective of the provision for eviction in the Bill, viz the protection of the applicant from further violence, is pressing and substantial. As discussed above, no reasonable alternative measures are available. Furthermore, the measure has the salutary consequence that the applicant as well as any children in her care are protected from the probability of further violence. By contrast, the negative effects on the respondent, although potentially severe, are not absolute - the respondent retains his proprietary rights, and may contest the confirmation of an interim protection order. The positive effects of the measure thus outweigh its potentially negative consequences.

Recommendation:

6(1)(c): ‘entering the shared household’;

b) ‘Additional conditions reasonably necessary for the safety of the applicant’ [6(2)]

We propose that this provision be extended to encompass the notion of ‘health, safety and wellbeing of the applicant’, since this is the general criterion employed to classify behaviour as ‘domestic violence’ (see subsec 1(vii)).

Recommendation:

6(2): ‘The court may impose any additional conditions which it deems reasonably necessary to protect and provide for the health, safety and wellbeing of the applicant or any child...’

c) ‘Supervision of collection of personal property’ [6(2)]

We are concerned that the present formulation does not adequate clarify the role of the peace officer, viz the protection of the applicant, and we therefore propose that the peace officer should have a duty to take appropriate steps to ensure the safety of the applicant.48

Recommendation:

6(2): ‘... including but not limited to an order that a peace officer must accompany the applicant to a specific place to supervise the collection of personal property and must take appropriate steps to ensure the safety of the applicant during this collection of property.‘

d) ‘Emergency monetary relief’ [6(5)]

While the court may order the respondent to pay emergency monetary relief as one of the terms of a protection order, we are concerned about the enforcement of such order. (Although the Bill provides that it is a criminal offence to contravene the terms of a protection order, the ensuing criminal prosecution may ultimately not assist the applicant in obtaining payment.) We propose that the order for emergency monetary relief should have the effect of a civil judgement.49

It should also be noted that Form 1 (to be completed by the applicant in application for an order) does not provide a space for the applicant to detail what emergency monetary relief is required and does not indicate that vouchers or other documents should be attached to prove the expenditure or anticipated expenditure. We propose that Form 1 should be amended accordingly.

Recommendation:

6(5): ‘The court may order the respondent to pay emergency monetary relief and such order shall have the effect of a civil judgment.’

e) ‘Structured contact’ [6(7)]

Whilst the notion of structured contact is supported in principle, it is suggested that the Bill provide further clarity as to exactly what constitutes such structured contact. In this regard it is suggested that the Bill stipulate that structured contact include the days, times and places of such contact. It is further suggested that a provision of structured contact include ‘supervised access’. In providing for supervised access, it is proposed that the Bill provide for 3 options.

Option 1: Supervision by a Family Member or Friend

In view of the cost implications of enforcing a provision of supervised access, it is suggested that the Bill expressly allow for a family member or friend to supervise access at no cost. Although there is no analogous provision in any of the foreign jurisdictions reviewed, we propose this option in view of its cost efficiency as well as in the interests of the protection of the child.

Option 2: Supervised Visitation Centres

In order for a provision of supervised access to be meaningfully enforced, it is vital that supervised visitation centres be established.50 The centre allows for supervised exchange, on-site visits and monitored visits. In view of the cost implications of setting up such centres, the possibility of using schools or child care facilities after hours and during week-ends with the assistance of volunteers should be explored in order to minimize costs.

Option 3: Supervision by a Suitable Third Party

The Bill should further provide that a child’s visit may be supervised by a suitable third party, whom the applicant may be referred to by a social worker or a member of a non-governmental organization with proven experience and expertise in the field of assisting children subjected to domestic violence.

Recommendation:

6(7)(b): ‘... order structured contact with such child: Provided that an order of structured contact should stipulate the days, times and places of contact, as well as provide for supervised access;

It is also recommended that the Bill should define ‘supervised access’ as follows:

‘Supervised access’ means an order stating that

(a) A family member or friend of the applicant may supervise the respondent’s access to children at no cost;

(b) The respondent may gain access to children through a supervised visitation centre; or

(c) The respondent’s access to children may be supervised by a suitable third party to whom the applicant is referred by a social worker or a member of a non-governmental organisation with proven experience or expertise in the field.

7. CLAUSE 7: SEIZURE OF ARMS AND DANGEROUS WEAPONS

a) Discretion to order the seizure of arms or dangerous weapons

The present clause allows a court a discretion in ordering the seizure of arms or dangerous weapons from the respondent,51 and does not direct the court to order the seizure of such arm or weapon under appropriate circumstances. We therefore propose that ‘may’ should be amended to ‘shall’. (We believe that this should not unduly restrict magisterial discretion, since the clause sets out that the court has to be satisfied that certain criteria have been satisfied before making this order - an order will therefore not follow as a matter of course.)

b) Onus placed on applicant

An onus is placed on the applicant to furnish the court with reasons as to why the respondent’s arm should be seized. The underlying test that the applicant is required to prove is that:

The respondent has already threatened or expressed the intention to commit further violence with the arm;52 or

The seizure of the arm is in the best interests of the respondent or any other person due to the respondent’s mental condition, state of mind, inclination to violence or use of or dependence on drugs or alcohol.53

This additional ‘best interests test’ which the applicant is required to factually satisfy under par 7(1)(b) is onerous, since the added inquiry could lead to delay, or ultimately frustrate the relief which the applicant may be entitled to. It would be virtually impossible for the court to adjudicate on the factual inquiries required under subpar 7(1)(b)(i)-(iii) in ex parte proceedings as envisaged by the legislation, and in particular without access to the requisite expert opinion of, for example, a psychiatrist.

The fact that the applicant may very well not have legal representation when completing the affidavit may have potentially serious repercussions in respect of the relief that this section is trying to provide. The failure by the applicant to include in the affidavit the required allegations about the use of arm or weapons by the respondent will frustrate any chance she may have of removal of the danger presented by respondent’s possession of such arm or weapon.

Recommendation:

7(1): The court must order a member of the South African Police Service to seize any arm or dangerous weapon in the possession of the respondent, if the affidavit contemplated in section 4(3) contains information to the effect that -

(a) the respondent has threatened or expressed the intention to kill or injure any person, including himself or herself, by means of the said arm or dangerous weapon, notwithstanding that the respondent may not have done so in the particular incident forming the basis of the application; or

(b) the applicant believes that the arm or dangerous weapon constitutes a danger to any person.’

8. CLAUSE 8: SERVICE OF DOCUMENTS

a) Service of documents; costs of service

In terms of the Bill, service may be effected by the clerk of the court, the sheriff or peace officers.54 We welcome the addition of peace officers and the clerk of the court as service agents, since this is crucial to ensure speedy service of documents, in particular interim protection orders. We also specifically support the provision that the cost of service should be borne by the State.55

We are however concerned that a number of matters have not adequately been addressed, and propose the following amendments:

b) Distinction between various service agents

The Bill draws no distinction between service of the interim protection order on the respondent and service of further affidavits. The clerk of the court, the sheriff and the police are all empowered to serve any of the aforementioned documents. Service by the clerk of the court will probably take longer than by the police or the sheriff, since the clerk (unless serving the documents in person) will serve by registered post. In terms of the Magistrate’s courts rules service is deemed to have been effected four days after the postmarked date upon receipt of the registration. There are also often administrative delays in the office of the clerk of the court which could lead to the documents not being immediately dispatched for service. In order to eliminate delays specifically in relation to interim protection orders, we propose that the Bill provide that service by the clerk of the court shall take place in person.

Recommendation:

Par 8(1)(a): ‘... the clerk of the court by delivering in person or presenting for delivery...’

c) Refusal to serve

We are concerned that if all the service agents are empowered to serve all the different types of documents, the various agents may refuse to serve the documents on the basis that it could be done by one of the other service agents. We therefore propose inclusion of a clause which clarifies the position.

Recommendation:

8(1): Service of any documents in terms of this Act must, upon request by the applicant, forthwith be effected -

d) Substituted service

We believe that a form of substituted service (analogous to the mechanism provided for in the Magistrate’s Court rules) should be considered in appropriate cases, given the fact that respondents are notoriously successful in evading service. Problems are especially experienced where the respondent does not have a fixed place of residence or employment. Rule 9(12) of the Magistrate’s Court Rules may be useful:

‘Where the court is satisfied that service cannot be effected in any manner hereinbefore prescribed and that the action is within its jurisdiction it may make an order allowing service to be effected by the person and in the manner specified in such order.’

We propose the insertion of a similar provision in the Bill (since clerks of the court are unlikely to draw this provision to the attention of applicants).

Recommendation:

8(3): ‘Where the court is satisfied that service cannot be effected in any manner contemplated under subsection (1) and that the action is within its jurisdiction it may make an order allowing service to be effected by the person and in the manner specified in such order.’

9. CLAUSE 10: POWER TO GRANT FINAL PROTECTION ORDER

While we support the provision that the interim order is made final on the return date in the absence of any indication from the respondent that he wishes to oppose the confirmation of the interim order,56 we are concerned that the procedure to be followed where a respondent indicates that he wishes to oppose the confirmation of the provisional protection order will prove to be impractical. The proposed procedure is unnecessarily complex with various areas of potential breakdown:

Inaccessibility of procedure

The overly technical and cumbersome nature of the process will be particularly prejudicial to women who do not have the benefit of legal representation, and will be virtually inaccessible to illiterate women.

Cost of repeated court attendance

The issue of costs is one which affects all parties and all applicants. The cost implication for both parties to arrange for time off work (often as unpaid leave), travel to court, and arrange have legal representation present, only for a matter to be postponed, creates a financial barrier to applicants seeing the process through to the granting of a final order. in the case of rural women who are already effectively marginalised by the lack of access to courts, it will be untenable to expect an applicant to incur these costs.

Postponement to hear oral evidence

If the court decides at the hearing of the matter to hear oral evidence, the matter is again postponed to a further date for the hearing of the evidence.57 The Bill makes no reference to the attendance of the parties at the hearing. The unnecessary prolonging of the actual hearing may border on an unconstitutional delay of justice, both for the applicant and respondent. The applicant has, furthermore, to live with the uncertainty of not having a final order (and closure of this chapter in her life), notwithstanding that the interim order remains in full force and effect.

Duty on clerk of the court

There is a duty on the clerk of the court to advise the applicant of the rescheduled dates for the hearing.58 This may be problematic in that the clerk of the court is often under-resourced, and in addition, applicants may be in shelters or in hiding and therefore not readily contactable.

Service of answering affidavits

Subsec 10(3) directs the respondent to file an answering affidavit at least ten days before the return day. This affidavit would presumably set out the basis on which he opposes the confirmation of the provisional order. The section does not stipulate who should take responsibility for service of the respondent’s answering affidavit on the applicant. There is also no time within which the applicant should receive the documents, since the section merely states that copies of the document must be served on the applicant forthwith. It is important that the procedure for service is effective to avoid postponements of the hearing due to the applicant’s not having received the documents timeously.

Time limits: replying affidavit

In terms of subsection 10(5), the applicant is allowed (but not required) to file a replying affidavit, which must be served and filed prior to the hearing - although no time limit is stipulated. Here time periods should also be set to avoid unnecessary postponements, since the respondent would require sufficient time to consider the applicant’s papers before the hearing.

Guidelines: referral for oral evidence

While a matter can be decided on the papers, this should in practice not happen if the papers disclose a factual dispute between the parties. Practical experience has shown that where a provisional order is contested, it is usually done on the basis of a factual dispute. The legislation should provide guidelines as to when matters should be referred for oral evidence, since it is preferable that domestic violence matters should not be disposed of by means of oral evidence. The applicant may well be unrepresented, and especially where the respondent is represented, the experience of giving oral evidence and being cross-examined by the respondent’s legal representative is potentially a traumatic one.

Recommendation:

1. At the first hearing of the matter, when a provisional order is granted, the magistrate must consult the court calendar and stipulate a date for the hearing or return date. Sufficient time must be provided for:

1.1 The service of the interim protection order on the respondent (Recommended: within 24 hours);

1.2 The service and filing of any answering affidavit, in the event that the respondent opposes the confirmation of the interim protection order (Recommended: 5 court days);

1.3 The service and filing of the applicant’s replying affidavit, where applicable (Recommended: 5 court days);

1.4 Hearing date to be within 21 days from date of granting of interim protection order;

1.5 All process documents to be served and filed with the clerk of the court, who will be under a duty to forward copies of same to either party when requested to do so, either electronically or by post. The onus is then on the parties to obtain copies from the clerk of the court, but the date of service remans in the date same were filled with the clerk, notwithstanding any delay by the parties to obtain copies.

NOTE: While this recommendation allows for a central neutral ‘post box’ which will be available to all parties, helping to reduce the cost of effecting service of process by the sheriff or by the police and potentially cutting down on time delays in getting process served, it should be noted that it imposes an additional burden on the parties. The recommendation will only be practical if there is a clerk of the court specifically tasked with administering domestic violence cases.

2.1 Prior to the date of the hearing, the magistrate will be required to read all the documents of record, so that the parties are prepared for the leading of oral evidence on the return day. In the event of the magistrate being in a position to decide the matter on the papers without recourse to oral evidence, s/he must inform the clerk of the court who must notify the parties at least 15 days prior to the hearing date, provided that where one of the parties is illiterate, the magistrate is required to hear oral evidence to satisfy her/ himself that both the parties understand and are fully appraised of all the facts before the court and the nature of the proceedings;

2.2 Alternatively, the parties are required to appear in court on the return/ hearing date with all their witnesses and prepared as if the matter is going to proceed to oral evidence.

10. CLAUSE 11: WARRANT OF ARREST

a) Duty to arrest [11(3)]

Under the present Act, the police may arrest the perpetrator when presented with a warrant and an affidavit alleging a breach of the interdict.59 The Bill proposes that there should be no such discretion – the police, when presented with the warrant and an affidavit, must arrest the respondent60. This may prove to be a contentious provision: a perception may exist that this process could be unduly prejudicial to a perpetrator where an ex parte interim protection order has been issued, and the applicant alleges a breach of the order prior to the return date. This raises the hypothetical possibility of a respondent who has not yet been given the opportunity of any hearing languishing in custody (for a period up to 48 hours)61 based on untested allegations by the applicant.

It is important to bear the following in mind:

a) It is not clear how the discretion under the present Act should be exercised (i.e. what the basis for the decision whether or not to arrest should be). Research has shown that members of the SAPS are extremely reluctant to arrest perpetrators for alleged breach of the interdict.62 The current situation may be said to amount to a (tacit) policy of ‘arrest avoidance’. This may ultimately frustrate the stated objective of providing applicants with protection against further violence, and may also violate the constitutional rights of victims. In the US, numerous claims have been lodged against police officers based on the argument that an ‘arrest avoidance’ or ‘non-intervention’ policy violates constitutional guarantees of equal protection and due process. (Interestingly, these matters have often been concluded through settlement, with the police agreeing to amend their policy regarding domestic violence intervention.)

In Bruno v Codd (sub nom McGuire) [1976]63, a group of women filed a class action complaint against various New York City Police Department officials alleging (inter alia) that the police unlawfully refused to respond to requests for assistance from battered wives and refused to arrest men who beat their wives. In June 1978 the police department signed a consent judgment, obligating themselves to arrest when they have reasonable cause to believe that the husband committed a felony against his wife or violated an order of protection.

A similar suit was filed against the police department of Oakland, California in 1976.64 The plaintiffs, alleging that they had been denied adequate police protection from assaults by men with whom they are or had been involved, claimed that the arrest avoidance policy violated the equal protection and due process clauses of the federal constitution and also constituted an abuse of discretion under state law. The case was settled with a police agreement to treat domestic violence as criminal conduct, to presume arrest to be the most appropriate response in felonies, and to arrest assailants where there is probably cause to believe that a felony was committed.

In Thomas v City of Los Angeles65 the city of Los Angeles and its police department were challenged for the latter’s policy of non-intervention in cases of domestic violence. It was alleged that this policy violated the 14th Amendment to the US Constitution, the Equal Protection Clause of the California Constitution, the California Penal Code and the Charter of the City of Los Angeles. The case was settled in October 1985, with the defendants agreeing to adopt new standards and procedures providing that domestic violence shall be treated as criminal conduct, that arrest must be made if there is reasonable cause to believe a felony has occurred , and that the decision whether to arrest shall be made solely in accordance with standards applicable to arrest in incidents of non-domestic violence.

In yet another class action suit, it was alleged that the Dallas police denied battered women due process and equal protection and violated their rights under 42 U.S.C. par 1981, 1983 and 1985.66 The suit was settled by consent decree in May 1987, which provided (inter alia) that the Dallas police will not employ an arrest avoidance policy and that the police must arrest if there is probable cause in felonies.

In Thurman v Torrington67 the plaintiff obtained a court order forbidding her husband to assault or threaten her. Despite her continued complaints to the police and their knowledge of the court order, they failed to arrest him. The attacks culminated with a brutal stabbing incident. A jury agreed that the department’s policy of refusing to intervene in and/ or discouraging arrests in domestic violence cases constituted disparate treatment under the 14th amendment’s equal protection clause.

While it was held in DeShaney v Winnebago Department of Social Services68 that a violation of the constitutional due process guarantee of bodily integrity will only occur where the state stands in a ‘special protective relationship’ towards the individual, the court found in Coffman v Wilson69 that DeShaney does not prohibit a due process claim where the state indicates that it is willing to protect the victim, as it had done in this case by the court’s order of protection.70

We will argue that the granting of a discretion whether or not to arrest, will in practice amount to an ‘arrest avoidance’ policy - which constitutes a violation of the constitution right to equal protection and benefit of the law71 and the guarantee of freedom from violence in section 12(1)(c) of the Constitution.

b) Since a warrant of arrest is a document which orders the person named therein be arrested by a peace officer,72 there can be no discretion to arrest after a warrant has been issued. Section 43(2) of the Criminal Procedure Act, for example, provides that

‘[a] warrant of arrest issued under this section shall direct that the person described in the warrant shall be arrested by a peace officer in respect of the offence set out in the warrant...’73

It is therefore clear that a warrant of arrest by definition orders or directs a peace

officer to arrest the person in question; a discretion to arrest where a warrant has been issued is inimical to the very nature of the document.

c) It should be noted that peace officers are granted authority to arrest suspects without a warrant of arrest where there is a reasonable suspicion that the suspect has committed an offence listed in Schedule 1 of the Criminal Procedure Act.74 This reasonable suspicion is often based on (untested) allegations contained in affidavits. In the case of protection orders, there is the additional safeguard that a warrant has in fact been issued by a magistrate who has had the opportunity to evaluate the applicant’s affidavit.75 Where the alleged breach follows the confirmation of the order (i.e. where the order has been made final), the spectre of untested allegations should be banished by the fact that the respondent will have been afforded the opportunity to be heard and to contest any allegations made in the applicant’s founding affidavit.

Due to the serious restriction of the individual’s freedom of movement (as well as dignity and privacy), an authority to arrest should not be conferred lightly. This is even more true where the provision not only authorizes, but in fact directs, arrest. However, the adoption of a peremptory approach to arrest for alleged breach of the order, can be justified on account of the nature of domestic violence, the need for protective measures, the existence of state obligations to ensure effective protection and the proven unwillingness of the police to intervene decisively. We believe that these considerations should suffice to show that the limitation of the respondent’s right to freedom is reasonable and justifiable in this instance. As set out above, we are also of the opinion that a failure to enact a provision which directs arrest will constitute an impermissible violation of the rights of the victim.

However, to address some of the concerns referred to earlier, we propose the following:

The implicit ‘threshold test’ (i.e. that the police official must be satisfied that the affidavit in fact alleges a breach of the order) should be stated more clearly in subsec 11(3).

A distinction may be made between provisional and final orders. In the case of a final order, the provision should remain as it stands; where a provisional order has been issued, but the return date has not yet passed when the breach is alleged, it should be stipulated that the respondent should be brought before court within the shorter period of 24 hours.

Recommendation:

11(3): ‘Any member of the South African Police Service must, if satisfied that the respondent has breached a prohibition, condition, obligation or order imposed in terms of section 6;

(a) execute a warrant of arrest upon its production and receipt of an affidavit by the applicant in a form substantially corresponding to Form 5 of the Schedule wherein it is stated that the respondent has breached such prohibition, condition, obligation or order; or

(b) arrest the respondent upon receipt of an affidavit in a form substantially corresponding to Form 6 of the Schedule wherein it is stated that....’

11(b): ‘A respondent arrested in terms of subsection (3) shall be brought before a court as soon as reasonably possible, but not later than -

(I) 24 hours after the arrest in the event of alleged breach of an interim protection order issued in terms of section 5; or

(ii) 48 hours after the arrest in the event of alleged breach of a final protection order issued in terms of section 10; or

(iii) the end of the first court day after the expiry of the period contemplated under ss (I) or (ii), if this period expires outside ordinary court hours or on a day which is not an ordinary court day;...’

b) Replacement of warrant and issue of second or further warrant where original has been lost or destroyed [11(3)(a)(iii) and 11(4)]

We believe that in order to operate consistently, these provisions should be amended to incorporate situations where the original warrant is unavailable for reasons other than being lost or destroyed (for example, where it is in the possession of the perpetrator).

Recommendation:

11(3)(b)(iii): ‘... the warrant of arrest is unavailable to the applicant or has been lost or destroyed...’

11(4)(b): ‘... the warrant is unavailable to the applicant or has been lost or destroyed...’

c) Release of respondent on bail [11(6)(a)]

We welcome the inclusion of a provision setting out that a respondent shall not be released unless he or she, having been given a reasonable opportunity to do so, adduces evidence which satisfies the court that the interests of justice permit his or her release from detention in custody. We believe that this provision serves to reflect the gravity of violation of protection orders, and we are satisfied that to the extent that the respondent’s right to be released from detention if the interests of justice permit,76 may be limited here, this limitation will withstand constitutional scrutiny.77

11. CLAUSE 12: AMENDMENT OR SETTING ASIDE OF FINAL PROTECTION ORDER

Where the original application was made on behalf of the applicant, or where the application was accompanied by supporting affidavits, we propose that the application for amendment or setting aside should similarly be accompanied by corresponding affidavits attesting to the fact that the application is made freely and voluntarily.

Recommendation:

12(2): Where the application was made by the applicant’s agent in terms of subsection 4(4), or was accompanied by supporting affidavits in terms of subsection 4(7), the application for amendment or setting aside must be accompanied by affidavit or oral evidence from the agent or deponent of the supporting affidavits showing that the application is made freely and voluntarily.

12. CLAUSE 15: RAPE OF WIFE BY HER HUSBAND

While we are of the opinion that this provision should stricto sensu be incorporated in legislation dealing with sexual assault, we support the retention of this clause in order to avoid reversion to the common law position until such legislation is enacted.

13. CLAUSE 16: PROCEEDINGS IN CAMERA

We support the provision which sets out that proceedings should take place in camera. This is necessitated by the nature of domestic violence proceedings, which will more often than not pertain to inherently private matters. In most cases, minor children will be affected by the proceedings, which further strengthen the argument in favour of closed proceedings. Section 83 of the New Zealand Domestic Violence Act (1995) provides a useful analogy in this regard.78 The current provision also has implications in terms of publication of domestic violence proceedings and we propose that publication should accordingly be limited.

While section 34 of the Constitution provides for the resolution of disputes in a fair public hearing, we suggest that the limitation of this right, in the interests of privacy and dignity of both parties, is justifiable. As far as the right of an accused person to a public trial (as guaranteed under section 35(3)(c)) is concerned, this will be dealt with in accordance with the provisions of the Criminal Procedure Act, since the proceedings take on the nature of a criminal trial when a breach of the protection order is alleged.79

The current formulation is however problematic in the following respects:

The use of the Latin phrase ‘in camera’ is not in the spirit of ‘plain language’ and can easily lead to confusion.

Subsection 16(2) allows for any party to request the presence of specified persons at the in camera proceedings. We believe that the objective of the legislation was to provide for the protection of witnesses testifying in domestic violence cases. The manner in which this section is drafted does not set out any guidelines for the presiding officer in making the decision as to who may or may not be present at the proceedings. This may result in a situation where the alleged perpetrator requests the presence of his/her supporters in court - which would serve to intimidate the victim and defeat the very purpose of this section.

Recommendation:

16: (1) Proceedings in terms of this act must be held as closed proceedings.

(2) Any party to the proceedings may request the presence of specified persons: Provided that such persons may only remain present if it appears to the court that no prejudice or harm will result from the presence of such persons.

14. CLAUSE 17: LEGAL REPRESENTATION

Although the right to legal representation has been guaranteed in the Bill, the reality is that the majority of victims in domestic violence cases are women who are severely economically disadvantaged and are thus not in a situation to provide financially for their own legal representation. Given the fact that, by comparison, many men are in a position to finance their legal representation, and given the inherent inequality of the distribution of power in court cases of this nature, it is essential that applicants in these cases be guaranteed legal representation.

We believe that the appointment of a legal representative for the applicant at state expense is essential to ensure the applicant’s right to equal benefit of the law (and does not violate the rights of the respondent). As was held in President of the Republic of South Africa v Hugo,80 the award of a benefit to one class of persons to the exclusion of another does not, if placed in the social context in which the benefit is given, necessarily constitute unfair discrimination. The provision of state-funded legal representation to an abused women in interdict proceedings is founded on the need to reduce the effects of gender-based violence and does not constitute unfair gender discrimination against the respondent. By contrast, it rectifies the structural imbalance of power that exists between the parties.

Recommendation:

17: (1) Any party to proceedings in terms of this Act has the right to legal representation.

(2) The applicant’s costs in obtaining legal representation must be borne by the state.

15. CLAUSE 18: COSTS

The motivation for the inclusion of this clause is set out in the Memorandum to the Bill:

‘Little cost is generally involved in applications of this nature. Making provision for cost orders may result in complicated applications making a simple and swift procedure once again expensive and time consuming. Moreover, financial abuse and the withholding of funds are a common feature of battering relationships. The Bill therefore provides that no order of costs shall be granted against any party to proceedings.’

The exclusion of cost orders assists in perpetuating the unequal power relationship inherent in domestic violence by denying an applicant the right to recover costs which may have been incurred in obtaining the protection order. It should be noted that the costs of obtaining a provisional and then a final order may be substantial, particularly when legal representation is involved and the respondent opts to contest the confirmation of the interim order. We propose that the Bill provide for an applicant to recover the costs incurred where a respondent has spuriously opposed the granting of a final order.

In addition, the Bill should allow for the court to grant adverse costs orders against legal representatives of both applicant and/or respondent who have recklessly and or intentionally proceeded with the obtaining or opposition of a protection order in circumstances where it is clear on inquiry by the magistrate that the launching or opposition of the application constituted an abuse of the process of court. This will go some way to ensure that the real victims of domestic violence are afforded the protection of the courts and the relief that they are entitled to and that they are not prevented from obtaining such relief by the financial exploitation of the legal system by unscrupulous persons, be they respondents or legal representatives.

16. CLAUSE 20: OFFENCES AND PENALTIES

a) Sanctions imposed under the Bill

The present clause 20 states that any person contravening section 6 is guilty of an offence and is liable on conviction to a fine or imprisonment for a period not exceeding 5 years or to both such fine and imprisonment. We find this problematic: where, for example, a contravention of a protection order takes the form of an act of rape (which presently carries a maximum sentence of 15 years for a first offence, 20 years for a second offence and 25 years for a third offence if prosecuted as a criminal offence) the same conduct would only carry a maximum sentence of five years’ imprisonment if prosecuted as a breach of the order. In order to bring greater consistency to the situation we propose that the maximum period of imprisonment set out in section 20(b) should be ten years.

b) Criminalisation of failure to comply with duties

With regard to the criminalisation for failure to comply with the provisions of sections 2, 8, 11(3) and 14(1), we submit that due to the historical reluctance of the SAPS to afford adequate and equal protection to victims of domestic violence, it is necessary to impose criminal sanctions on state agents for failure to comply with their duties.

While this measure may appear to be drastic, we believe that this step is essential, firstly, to act as a deterrent to police officials who wilfully decline to comply with their duties. It is furthermore necessary to ensure practical realisation of state duties (both under the constitution and in terms of international human rights jurisprudence) to provide effective protective measures. Analogous measures may be find in other jurisdictions: section 812(3) of the New York State Family Court Act provides for official responsibility by providing that no official shall discourage or prevent any person who wishes to file a petition or sign a complaint from having access to a court for that purpose.81

It should be noted that this section does not automatically find a state official guilty of such a failure to comply: any person so charged would naturally have legal recourse to defend themselves through the normal criminal justice process (the usual defences under common law will of course be available). We accordingly strongly argue for the retention of this provision.

Compiled by:

WOMEN & HUMAN RIGHTS PROJECT, COMMUNITY LAW CENTRE, UWC:

Hélene Combrinck

Karrisha Pillay

RAPE CRISIS, CAPE TOWN:

Bronwyn Pithey

INSTITUTE OF CRIMINOLOGY, UCT:

Lillian Artz

AXCESS LOBBYING AGENCY:

Brenda Stern

17 August 1998

ANNEXURE 1

DOMESTIC VIOLENCE ACT 1995

(NEW ZEALAND)

83. Conduct of the proceedings -

(1) No person may be present during the hearing of any proceedings under this Act (other than criminal proceedings) except the following persons:

(a) Officers of the court:

(b) The parties to the proceedings:

(c) The lawyer representing any party to the proceedings:

(d) Any lawyer appointed pursuant to section 81 of this Act in respect of the proceedings:

(e) Where, pursuant to any provision of this Act, any person is bringing or defending the proceedings on behalf of another person, -

(i) The person so bringing or defending the proceedings:

(ii) The person on whose behalf the proceedings are so brought or defended:

(f) Witnesses:

(g) Any person who is nominated by the applicant for a protection order or by a protected person in accordance with subsection (2) of this section:

(h) Any other person whom the Judge permits to be present.

(2) For the purpose of any proceedings to which this section applies, any party to the proceedings (being an applicant for a protection order or a protected person) may nominate a reasonable number of person (being members of his or her family, whanau, or family group, or any other person) to attend any hearing of those proceedings for the purpose of providing support to that person.

(3) Any witness must leave the courtroom if asked to do so by the Judge.

(4) No person present in the courtroom pursuant to subsection (1)(g) of this section is entitled to be heard at the hearing, and the Court may exclude any such person from the hearing at any time.

(5) Nothing in this section limits any other power of the Court to hear proceedings in private or to exclude any person from the Court.

Electoral Bill [B69-98]: Submissions

Electoral Institute of South Africa

South African Council of Churches

South African Council of Churches: Letter

Southern African Catholic Bishops’ Conference

United Democratic Movement

United Democratic Movement: legal opinion on funding