Briefing by the Minister of Justice, Dullah Omar

As Deputy-Minister Tshabalala-Msimang was unable to attend the meeting, a brief overview of legislation relating to Maintenance, Domestic Violence, Equality Legislation and Sexual Offences was given by Minister Dullah Omar.

The Minister made it clear that responsibility for managing the implementation of gender sensitivity training lay specifically with the Judicial and Magistrate Commissions themselves as the framework already exists.

Chairperson P. Govender opened the meeting with a background explanation that the Ministers of Finance, Trade and Welfare had been invited, but were unable to attend the meeting, due to other commitments. Despite very short notice, the Minister of Justice, Dullah Omar, was able to attend the meeting and was prepared to answer questions related to women and legislation.

Chairperson Govender furthermore identified the meeting as extremely significant, in view of the fact that the meeting occurred in the same week as International Women's Day. This meeting, therefore, would be regarded as a tribute to the day. Relatedly, issues around women and justice had to be identified as critical. Worth mentioning was the fact that the Ministry of Justice had succeeded in passing legislation with specific significance to women with the Customary Law Bill as one example.

The Chairperson singled out a few issues the she hoped the Minister would be able to address:

-plans for the implementation of bills relating to women;

-the finalisation of bills relating to women;

-the budget allocation of these bills;

-sexual assault legislation, and their time frames; and

-the identification of problems that face implementation of these bills.

Specifically related to the last-mentioned question was:

-understanding who actually holds the power to change mindsets within bodies such as the SAPS;

-recognising the needs for disciplinary action, especially against judges and magistrates; and

-establishing whether codes of conduct exist.

Minister Omar started his speech by emphasising the fact that obtaining accurate information on some of the questions asked was a difficult task. Due to the fact that the Deputy-Minister was unable to attend the meeting, the Minister's responses would mostly be incomplete. The documentation handed out could also only be presented at a time that Deputy-Minister Tshabalala-Msimang would be present.

He went on to say that the area of legislation and the functioning of courts had to be highlighted as a sphere where gender sensitive measures still need to be applied in greater measures. The Rules Board, the Human Rights Commission and the Legal Aid Board are examples of bodies that have successfully addressed the issue of representivity. In an analysis of the Judicial Commission and the Magistrates Commission, the Minister described the Magistrates Commission as the more representative body. Due to the pivotal role of the Judicial Commission in the functioning of the High Courts, the functioning of gender sensitivity can receive an effective platform if efficiently recognised and promoted. Importantly, when comparing the two, it is clear why the magistrate courts are implementing gender sensitivity more efficiently. The secret lies in magistrates courts being divided into 14 "clusters", equaling 14 managements. This system allows for the decentralisation of management, which in turn, allows for a higher success rate in dealing with issues of gender sensitivity. Furthermore, in the quest to increase gender sensitivity, it is planned to provide the two Commissions with separate manuals on gender sensitivity,

The Minister then gave an overview of the need for certain legislation:

Maintenance Act

The drafting of necessary regulations has been finalised. R5 million has specifically been allocated for the implementation of this act, which also allows for the appointment of maintenance investigators. Unfortunately, R5 million is regarded as insufficient by the Ministry. Even if more money could be allocated to this act, time restraints still exist in its efficient implementation. The money will therefore specifically be used to appoint maintenance investigators only in main centres such as Johannesburg, Port Elizabeth, Mitchells Plain and Cape Town.

Domestic Violence Act

With reference to this act, the drafting of necessary regulations has also been finalised and will be circulated to key role players. These regulations will hopefully be presented at the next session of Parliament. R2 million has been set aside for initial implementation.

Equality Legislation

The aim is for this piece of legislation to be in parliament by the next session unless problems prohibit it from being presented. This bill is expected to be handed over to the Minister on Human Rights Day (21 March 1999), which is a culmination of Human Rights Week. (Theme = Equality). HIV/AIDS will also be receiving a fair amount of attention during this period.

The Minister believes that the legislation will be seen as controversial due to the fact that it will condone affirmative action in favor of women. Provincial workshops have been held. Public comments are welcome on the bill and there will probably be a need for public hearings to take place.

Sexual Offences Act

The South African Law Commission is currently busy with this issue. Publication of their report can be expected to be completed by February 2000.

Before concluding, the Minister addressed the perception the Committee has that the Law Commission appears to be taking its time on researching certain issues. The Minister stressed that the Law Commission needs time to be able to give an efficient report. Good examples of such are the reports on HIV/AIDS and the Juvenile Justice System.

Questions by committee members

Except for a National Crime Prevention Strategy (NCPS) committee involved in investigating gender discrepancies within the SAPS, is there any other body involved? Do we not need more of an inter-departmental approach to combat problems of gender sensitivity? What steps have been taken to formulate a co-ordinated committee?

Response: Much work in this area is done within the framework of the NCPS. Clearly co-ordination is a good approach. The problem is it is effective at a national level but appears to become ineffective at a local level.

Is the training of magistrates and judicial officers sufficient on gender and child issues? A recent experience was that of a member of the Committee who was witness to situation where a magistrate, who had been found guilty of abusing his wife, could loose his position on the bench. When the Committee member opposed his reinstatement back to the bench, attitudes from decision-makers was that his offence was not such a big issue. Are ongoing programs not necessary to be able to combat such attitudes?

Response: Currently funding from the Canadian government allows for training at magistrate courts. Unfortunately, it is the responsibility of magistrate courts to implement continuous training. There are examples of courts that did implement training such as the seminars implemented by Judge Friedman in the Western Cape. It is imperative the training programs become decentralised, in order to create efficient management thereof.

UCT is currently assisting in the implementation of training programs, such as those at Justice College. Before becoming a magistrate, individuals have to undergo a training course which contains an aspect of race/gender sensitivity.

The only program that the Judicial Commission currently organises is one for new judges. Established judges tend to protest against being forced to attend such courses, and at times, identify the idea as forming part of a possible political agenda of the Department. The Department therefore chooses not to pressurise these judges.

Do gender desks exist within the department? In terms of training, how successful does the Minister perceive the education of gender sensitive information to be?

Response: Gender desks do exist. In response to the issue of conveying gender sensitive information, one must remember that it is the responsibility of the magistrates, themselves to remain informed.

Do magistrates with attitude problems in city centres tend to relocate to small centres? Instead of only allocating magistrate investigators to already transformed city centres should we not maybe be allocating them to rural "clusters" where a greater degree of ignorance exists?

Response: The issue of attitudinal change and representation is a problem in rural areas. These areas unfortunately remain largely untouched by transformation. Note is made of the idea of appointing magistrate investigators to represent rural areas.

Regarding customary law of succession, no mention is made of Muslim marriages.

Response: Draft legislation has been prepared and will hopefully be presented by the next session on the issue of religious marriages. The Department works on the basis of the constitution. Attitudes which promote the undermining of the Constitution can not be supported.

There have been many debates on women abuse statistics. How does one develop a culture of Women’s Rights as part of Human Rights?

Response: Surveys indicate that reporting of crimes against women has increased. On the question of creating a culture of Human Rights; this is an issue that will surely needed to be addressed, but due to time constraints, only in the future.

Training will not help in small towns, the point is magistrates need more supervision. Can we move magistrates from smaller towns for them to get exposure to the larger centre, where gender sensitivity exists?

Response: The Minister acknowledges that there have been complaints about the treatment of blacks and women in rural areas. Monitoring is necessary in the High Courts but this is the responsibility of the Judicial Services Commission. The Judicial Commission is currently discussing procedures for monitoring and the handling of complaints. It must be stressed that the freedom the public has to make complaints against the High Court is new and it takes time to implement measures to handle these complaints.

The Minister stressed that the initial mechanisms existed whereby gender sensitivity could be implemented. The need, if necessary, for parliament to enact further legislation about the way in which the Commissions operate was recognised, especially if possible inefficiency in handling the gender issue was identified.

The Chairperson commented on the lack of prioritisation certain provincial and local governments give to gender issues. In several local government budgets, money was still going to golf clubs and Voortrekker-style museums. The need for these bodies to reprioritise the spending of their budgets would have to be re-addressed.

In response, Minister Omar explained that certain budget cuts had been made in certain areas, specifically in Justice expenditure, and that re-priorisation had taken place.

The Chairperson was concerned that those tasked to implement the above-mentioned laws were doing it efficiently. Chairperson Govender questioned what disciplinary steps could be taken against members of the SAPS and judges if they were to act gender offensively.

Minister Omar emphasised the role of lay assessors in local communities. If lay assessors were to monitor gender sensitivity by attending court sessions, it was the Ministers’ belief that this would help to combat the problem of gender insensitivity. A more focused approach by the local communities would be able to aid transformation processes, especially in rural areas.

The Chair ended by congratulating the Justice Ministry on its commitment to women’s rights and the success of its attempts to implement legislation pertaining to the issue.