Legislation and Policy Areas for 1998, Maintenance Reform & Domestic Violence Draft Bills: briefing

Meeting Summary

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Meeting report



13 May 1998


Documents handed out:

Legislative, Policy & Budgetary Priorities: Report (Appendix 1)

Maintenance Law Reform: Department of Justice consultation document

Domestic Violence Discussion Paper: SA Law Commission – available at [http://www.law.wits.ac.za/salc/discussn/dp70.html]


The Committee discussed the key changes needed by women. These include maintenance, customary law, domestic violence, sexual offences and the Green Paper on National Gender Policy. This is a very ambitious programme but the committee feels that even if some of the aims are achieved this session it will be a victory. The bills will be presented to Parliament by the Justice Committee and members present were urged to lobby their party MPs for support. A schedule of further meetings and a workshop were accepted.


Chairperson Govender (ANC) introduced the report and dealt with all sections. She said that whilst considerable progress has been made in other areas such as land, housing, health, water and welfare, the needs of women are only now being addressed. Members are to make sure that their party MPs are brought on board. She also pointed out the need to involve the women leaders in the provinces. They should be urged to send letters to their MPs.

Regarding women at work, they had written to NEDLAC about sexual harassment and conditions for pregnant women workers. They had called on the Law Commission regarding domestic violence and urged that legislation be introduced this year. They had called for the inclusion of offences against children in the Sexual Offences Bill. The chair pointed out the inadequacy of the budget allocation for crimes against women. Many community centres and shelters for battered women have no funding.

The Education Committee has been approached with questions about their plans for education next session. Ms. Govender also reported that it is hoped to upgrade the Ad Hoc Committee to a permanent committee. This would help MPs to attend more regularly and to eliminate the juggling of attendances. An ANC committee member indicated that the Justice Committee has no women on it and that there are yawning gaps in the bills. Mr. Misweni (ANC) asked if they couldn't sit in on the committees and added that not everyone is sensitive to violence and a workshop may be in order. The chair stated that first there is the Customary Law workshop next week and then it can be determined whether or not there is interest.

It was suggested that party political funding be linked to representation. Mr. Misweni suggested that parties that promote women be considered favorably. Ms Vos (IFP) stated that experience in other countries was instructive and suggested starting at the local government level. The chair pointed out that the number of women in the NCOP has gone down. Mrs. Camerer (NP) stated her personal opposition to quotas.

The draft bill on maintenance reform was discussed next and questions were answered by the researcher. Under the new laws the employer must immediately start deducting from wages once an order is made by a magistrate. The order may be made even if the father does not attend. Tracers to track down fathers are being considered. There are now guidelines on amounts for children where there are two or more families by the same father.

Mrs. Camerer said that one of the key problems is that women have the burden of proving the man's income. This is especially difficult when the man is self-employed. She suggested that once the man is found there is a need for forensic investigators. Often lawyers charge a lot for a divorce but fail to get a court order for maintenance and prosecutors are often untrained.

Another member asked about children born out of wedlock and stated that even if the bills do not go far enough, the committee should not postpone obtaining whatever improvements that can be gotten. Mr. Misweni inquired whether there were any provisions for women or families, other than mothers, who look after the children. The researcher responded that when a subpoena is issued, the man must produce proof of income. The court may tell him to re-prioritise his spending, and instruct him to increase his earning capacity. When the father denies paternity, testing may be ordered but this may take a long time.

The Domestic Violence Bill was then discussed and it was noted that it is much broader than it was previously. It now includes homosexuals, other members of the family, engaged couples, etc. "Abuse" is not defined by the bill and one act of abuse is sufficient for action. One may obtain a temporary interdict, then the date is set for a future hearing when the man may argue his case. Even if the man is absent, the order can be made final. Sheriffs normally serve interdicts but now police can also do so. It is expected, however, that the police will protest the additional work.

It was confirmed that the bill also covers the elderly. One member asked how the expense of serving the interdict would be handled. The response was that the state may have to meet the costs but that more police should be trained in this duty. It was agreed that the magistrates should be available after hours. The chair suggested that the question of using the defence force for these duties should be explored. It was asked, because of the urgency, why the bills do not get sent to this committee rather than to the Justice Committee, which is already overloaded. The chair indicated that she met with the chair of the Justice Committee and impressed on him that these are priority bills. She added that this committee's role needs more exploration so as to avoid duplication.

Appendix 1: Legislative, Policy & Budgetary Priorities: Report

Legislative, Policy & Budgetary Priorities: Report



Dear Members

We have to ensure that parliament effects some key changes needed by women. The areas outlined in this document seem ambitious but they are simply to guide us in our work.

If we manage to ensure through the work of our Committee and through other parliamentary Committees that changes are effected in even some of these areas, we would have been successful.

In terms of the time that we have in this session, we will be dealing with maintenance, customary law, domestic violence, sexual offences and the green paper on a national gender policy. The legislation itself will be tabled through the Justice ministry and Committee.

This document has been widely circulated and members of the Committee are encouraged to ensure their parties discuss it and to provide feedback.

Kind Regards,

Pregs Govender


There are a number of key legislative and policy priorities for women. It is critical to ensure that certain pieces of legislation are brought before parliament in the 1998 year to improve the quality of life and status of women.

In many areas such as land, housing, health, welfare and water, legislation and policy have begun addressing the needs of women. The priorities chosen are areas where urgent intervention is needed as well as areas where pieces of legislation have been developed but not yet tabled before parliament. A major problem experienced by women is that of violence. This is not a new problem. However, since 1994 women have been reporting cases to the police and have been speaking out more than they ever have. It is a tragic vote of confidence. We cannot fail them. Central to the problem of violence is the lack of power women have. Thus our solution must be comprehensive and deal with political, economic. social and personal empowerment.

Domestic Violence

The South African Law Commission (SALC) project on Domestic Violence is nearing completion. The project aims to introduce a Domestic Violence Bill which will repeal and replace the Prevention of Family Violence Act of 1993.

Legislation in this area provides for the attainment of domestic violence interdicts by applicants who are victims of domestic violence. The proposed Bill introduces a number of key changes and improvements to the existing legislation which will directly affect women, some of which are:

The current Act applies only to parties to a marriage. whereas the proposed Bill includes a range of other relationships in the domestic sphere, such as family relationships, dating relationships and homosexual relationships.

The Bill aims to define domestic violence broadly as any controlling or abusive behaviour that harms the health, safety or well being of the victim and includes physical, sexual, emotional,

verbal, psychological, and economic abuse as well as intimidation, harassment, stalking and damage to property.

A range of possible court orders is provided for, such as prohibiting the Respondent from committing any act of domestic violence, prohibiting the Respondent from entering the shared household or a specified part thereof, and imposing obligations on the Respondent concerning the discharge of rent or mortgage payments.

The SALC released both issue and discussion papers on the project for public comment and various consultative workshops were held. Arising from the consultation process the SALC has finalised a draft Bill. It would appear that the SALC is intending to host a series of workshops on the draft Bill.

There is a concern that such a series of workshops will result in the Bill not being tabled before parliament this year. Should workshops not be held, the Bill could be tabled as a matter of urgency.

An opportunity for consultation and comment on the Bill will be provided by public hearings hosted by the portfolio committee on Justice. The project has been with the SALC for too long, it must be brought before parliament this year so that the changes women are crying out for can be effected

Sexual Offences legislation

It is critical that sexual offences legislation is introduced. Legislation will broaden the definition of rape, reform discriminatory rules of evidence, such as the rule whereby a negative inference is drawn if women do not immediately tell someone of the rape, and deal with broader issues relating to sexual offences.

The SALC has a project on Sexual Offences Against Children that can be broadened to include women. This process could however be very lengthy. The department of Justice, NGO's with

expertise in the area and the portfolio committees on Justice and the Improvement of the Quality of Life and Status of Women could collaboratively draft legislation to be introduced in parliament this year.

Sexual Harassment Code

A Code on Sexual Harassment in the workplace is currently being developed at NEDLAC. The Code will be used under the current Labour Relations Act and the proposed Employment Equity Bill and will deal with aspects such as the definition of sexual harassment.

The Code should be finalised and gazetted this year.

Sexual Offences Guidelines

Last year guidelines for all role-players, for example the police, magistrates and health personnel dealing with sexual offences were developed. Wide dissemination of the guidelines must be ensured and the possibility of introducing codes of conduct and disciplinary action for noncompliance with the guidelines explored. Extensive training is also required for all the role-players concerned.

NCPS Victim Empowerment Business Plan

NCPS Victim Empowerment Business Plan is being drafted, which will include policies on Compensation for Victims for Crime (including proposals for the administration of a South African Compensation Fund for victims of crime), a South African Victim Charter and an integrated Victim Policy Framework and Model for Victim Empowerment in South Africa. There is a clear need to ensure that the plan is drafted, finalised and implemented in a way which addresses the needs of women victims of crime.

Family Courts

The Hoexter Commission recommended that family courts be established in South Africa. The vision is that such courts would deal with all aspects relating to family law including divorce, maintenance, custody and other areas.

The department of Justice has on its legislative programme a proposed Bill on the Establishment of Family Courts to be finalised during this year.


The enormous problems that women face in the private maintenance system are well documented. The SALC has a project considering the review of the entire maintenance system. This process is in its initial stages and will not be completed during the course of this year.

The department of Justice has drafted a Maintenance Bill which seeks to introduce amendments to the existing system which are widely supported and readily implementable. The suggested amendment will go a long way to alleviate the problems women face in recovering maintenance. Three of the key proposed amendments are highlighted to illustrate the wide ranging impact that the amendments would have.

Provision is made for dedicated tracers to be appointed to locate persons responsible for maintenance payments. Respondents are notorious for evading the sheriff and court officers. Provision is also made for an automatic deduction from wages notice to be issued when a maintenance order is made and for the court to be able to make a maintenance order even if the respondent is absent.

The Bill was submitted to the state law advisor but has been referred back to the department of Justice for further consideration. It is critical that this piece of legislation is passed this year to grant relief to women.

Customary Law

The SALC has a project on the Harmonisation of Indigenous law and Common law. One aspect of his project is in respect of Marriage. The SALC anticipates releasing its final report, together with a draft Bill to Cabinet in June this year. There needs to be a commitment to "fast track the Bill in Parliament to ensure that it is passed this year.

The Bill will abolish the minority status of women married under customary law by repealing the offending provisions of the Black Administration Act of 1927. It will abolish marital power as provided for in the KwaZulu/ Natal Code and the Transkei Marriage Act

The enactment of this Bill will enable women married under customary law to sue, hold property and contract, which they currently cannot do.

Critically for many women, the Bill will also recognise customary marriages and deal with issues such as lobola and polygamy as well as the proprietary capacity and regime of the spouses, i.e. whether marriages should be in or out of community of property.

Employment Legislation

This year the Employment Equity Bill and Skills Development Bill will come before parliament.

Both these Bills affect women.

The Employment Equity Bill introduces anti -discrimination provisions in the workplace. Women discriminated against will be able to approach the Commission for Conciliation, Mediation and Arbitration (CCMA) and the Labour Court for relief such as compensation and reinstatement in cases of dismissal.

The relationship between the anti-discrimination provisions and the Equality legislation being drafted by the Human Rights Commission must be carefully considered. The Affirmative action provisions in the Bill target Blacks, Women and the Disabled. Experience across the world has shown that such categorisation renders black women invisible. Employers hire black men and white women, which complies with the legal requirements but which disadvantages black women. This aspect needs to be addressed.

The Skills Development Bill is drafted in gender neutral terms. The composition of the various boards established under the Bill and the possible need for a quota for women needs to be considered, as well as whether provisions need to be introduced to meet the special training needs of women.

Maternity benefits

The Unemployment Insurance Fund is currently being restructured. One aspect of restructuring is in relation to the payment of maternity benefits. Under the UIF Act women receive 45% of their previous salary for a period of 24 weeks as maternity benefits. There are various proposals to increase these benefits. The proposals must be considered, inputs must be made by women's organisations and change given effect to.

The exclusion of domestic workers from maternity benefits needs to be addressed and creative solutions found.

The Job summit

Government's position on the job summit to be held later this year must be assessed to consider what research is being done and what positions put forward to ensure that women will get access to jobs and a living wage.


The Department of education set up a task team to investigate gender equity in education. The completed report of the team is comprehensive, covering every area of education and urgent effect must be given to its recommendations by the Department of Education.

Green Paper on a National Gender policy

The Office on the Status of Women is developing a green paper on a national gender document to be handed to cabinet this year. The Committee on the Quality of Life and Status of Women will be hosting public hearings around the green paper.

Access to Justice: Legal Aid

The Legal Aid Board has traditionally provided funding mostly to criminal cases and only in limited civil cases. This has affected women's access to justice. Within the civil allocations, Legal Aid has not been available for amongst others maintenance matters and the obtainment of Domestic Violence interdicts.

The Legal Aid Board currently being restructured and a draft Legal Aid Guide has been developed which sets out which persons qualify for Legal Aid. These reforms must ensure that women receive adequate access to justice.


Violence against Women has been declared a priority crime in terms of the NCPS. Previously priority crimes have received special budgetary allocations. It would appear that there has not been such an allocation to violence against women. Departments such as Safety and Security do not have specific, separate budgetary allocations for violence against women.

This has the effect that many initiatives cannot continue or be carried out. Last year Sexual Offences Guidelines for role-players were developed as part of an inter-sectoral task team on violence against women. within the department of Justice only 200 copies were made due to budgetary constraints. If the guidelines cannot be distributed they become meaningless.

Many community assistance centres and shelters for battered women do not have funding. It is critical that resources are made available to address violence against women as an urgent priority area together with all the other issues affecting women.


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