Kohler Barnard Fund for Victims of Violent Crime Bill: discussion

PRIVATE MEMBERS’ LEGISLATIVE PROPOSALS AND SPECIAL PETITIONS: STANDING COMMITTEE
24 August 2007
KOHLER BARNARD FUND FOR VICTIMS OF VIOLENT CRIME BILL: DISCUSSION

Acting Chairperson: Mr S Mshudulu (ANC)

Relevant Documents:
Fund for Victims of Violent Crime Bill: D Kohler Barnard
Discussion re: fund for Victims of Crime and Violence by Acting DG Ms C Phakade
Note on the Funds for Victims of Violent Crime Bill of the Democratic Alliance
Proposed Fund for Victims of Violent Crime Bill: Rendani Rendela
Fund for Victims of Violent Crime Bill: Department Justice & Constitutional Development
Summary Background of the Victim Empowerment Programme: Department Social Development
Procedure Manual for Social Relief of Distress

Audio recording of meeting

SUMMARY
Ms D Kohler Barnard, had presented her proposed Bill on Fund for Victims of Violent Crime Bill in document form as well as during a briefing. The Committee had invited a number of departments and institutions to make their submissions on the proposed Bill, as this was a cross-cutting and sensitive issue.

The Department of Social Development acknowledged the need for the compensation of victims. However, it suggested that alternative means of compensation should be considered. Integrated services should be provided, and non-monetary compensation, such as free health and psychological care, increased numbers of crisis centres and shelters and funding to private health service providers for victims’ treatment, and for additional training of professionals, were options to be considered. The Department described its Social Relief of Distress programme, which provided temporal support, as well as the existing Victim Empowerment Programme.

The SA Human Rights Commission noted that there was already a Victims’ Charter recognising the right to compensation, but this was limited to being exercised against the perpetrator, and often did not translate into practical realisation. The Minister of Justice had already requested the South African Law Reform Commission to look into the viability of a Victims Compensation Fund. Public consultation processes had suggested that victims would be better assisted by having better hospital, health and justice services. The proposal was limited to cases where there had been a criminal conviction and the problems with this were outlined.

The Department of Justice could not support the proposal as it believed that more extensive research was needed into the principle, the costing and the infrastructure needed. There were shortcomings in the Bill, in particular that it would not assist a large number or victims. Compensation must be seen in he light of initiatives such as the Victims’ Charter, and the Bill had not taken this into account. Legislation could not deal with a social issue in a piecemeal fashion. The Bill was premature.

National Treasury agreed with the Department of Justice. The focus should be on reducing crime, successfully prosecuting offenders and support to victims. Further research was needed to assess the practical and financial impact of the proposed bill. Public funds would be better utilised in strengthening the criminal justice system and supporting the victims in other ways, through a dedicated unit.

The National Prosecuting Authority agreed that society must deal with crime collectively to find solutions. Although it supported the principle of compensation it wondered if the State had the resourcing to follow the route proposed. The Criminal Procedure Act already allowed for compensation in limited circumstances. Ideally prosecutors should be relieved of some time in court in order to attend to victims properly and assist them in claiming compensation. It was imperative that all State departments enhance the quality of services delivered to victims.

The State Law Advisors agreed that the Bill was premature and contained a number of areas that had not been properly addressed. These included the definition of a victim, the quantum of payments, the criteria to be used for assessments and payments, the functions and working arrangements of the trust, the claims procedure and criteria for acceptance or refusal of claims, and the need to cater for the Public Finance Management Act requirements.

Members raised issues of concern around the principles. Some were against any cash payments or grants being made, as this had the potential for fraud and may have unintended consequences. Various scenarios were examined, particularly concerning domestic crime and violence, which had not been addressed in the Bill. The concerns of Members would be carried forward. Further presentations would be made on the Victims’ Charter and the costings. The matter would continue to another meeting for discussion.

MINUTES
Kohler Barnard Victims of Violent Crime Bill
The Acting Chairperson noted that the sponsor, Ms Kohler Barnard had presented her proposal at a meeting and had also submitted it in writing. The Committee had decided to invite all stakeholders from department and institutions to give input. This was a sensitive and cross cutting issue, and their contribution would assist the process and give further guidance both to the proposer and the Committee.

Submission: Department of Social Development (DSD)
Ms Vuyelwa Nhlapo, Deputy Director General, DSD, indicated that the Department supported the principle of support being given to victims of violent crime. She noted that there was already a Victim Empowerment Programme (VEP) and this could be used as a strategic approach to address the diverse needs of victims of violence.

She pointed out that the current VEP was multi sectoral and she felt it would be important to clearly define who the custodian would be of the proposed legislation. In her view it would probably lie in the Justice cluster. She indicated that the definitions would need to define emotional or psychological injury for the purposes of compensation. It would also be necessary, if a Fund for Victims of Violent Crime were set up, what would be the source of income, and she indicated that these must be reliable and consistent sources. There was also a need to consider and define what the outcome would be of the fund becoming exhausted. It must also be borne in mind that some injuries could be compensated for by private insurance or medical aid, and whether this would have to be taken into account. Further circumstances needing to be considered included whether compensation would be payable, and to whom, in respect of a violent crime committed by a parent or a relative against a child.

It was the view of the Department that other alternative means of compensation must be considered. The programme outlined in the presentation did not only focus on income but on the integrated services that should be provided for the victim. There was a need to consider services other than monetary compensation, such as free health and psychological care services, funding the establishment of more crisis centres, and funding of more shelters to provide accommodation for victims of domestic violence. Further funding might be needed to contract private health care facilities to attend to victims of violent crime, to train more professional service providers and lay trauma-counsellors and for intense initiatives to prevent victimisation, which might include skills development for women, campaigns to create awareness, and self defence skills

Mr Coceko Pakade, Chief Financial Officer, DSD added that DSD also had a Social Relief of Distress (SRD) programme. This could provide material support and cash to people who were in distress and displaced for various reasons. There were clear criteria set out in the Social Assistance Act. The programme was intended to cover a temporary period of not more than three months. The beneficiaries could be diverted to various programmes of government, such as the programme of social grants and the Expanded Public Works Programme (EPWP). It was also intended to give assistance to those who were unable or unfit to work, for a period of not more than six months. A victim of violent crime could well become temporarily disabled, and if the disability was more permanent then the victim could apply for a disability grant. Death of a victim of crime could give rise to support under this programme to his dependents. He could send further details to the Committee, as the programme was not well known.

Discussion
Ms S Rajbally (MF) noted that this was a sensitive area. She asked whether potential beneficiaries under this programme were aware of the facilities and shelters provided by the Department, who to contact when they found themselves in need and where the facilities were. Often the emotional and stressful times experienced by those who had suffered trauma meant that they would be nervous of engaging with others, and would lack confidence and withdraw, sometimes becoming suicidal. She enquired if the DSD would publicise these matters in the local newspapers. She also enquired if there was legal assistance offered. She asked how the Department used the local newspapers in respect of advertising such facilities. She also asked whether there was any legal assistance from the Department for these victims.

Ms M Maine (ANC) asked how this was monitored. She commented that these facilities were not available in all constituencies, and asked if One Stops were already available, or in the pipeline.

The Acting Chairperson commented that it was important not to lose sight of the objectives. These questions of clarity clearly indicated the challenges faced. He noted that the empowerment of communities was important. Batho Pele principles were vital. These questions were going to the heart of how best to administer the programmes of DSD, and there was a need to tighten the synergy between provinces and districts, which in turn would raise questions of competency. He agreed that a multi-sectoral approach would be useful.

Ms Nhlapo acknowledged the recommendations made to strengthen the Victim Empowerment Programme, and confirmed that there were some challenges in delivery. There were one stop centres, but the numbers were limited by the availability of funding. They existed in Mpumalanga, Northern Cape and Eastern Cape and a new one was due to open in Mitchell’s Plain. She had mentioned the institutional mechanisms, and this would cover awareness. The Department was working closely with the provinces and Victim Empowerment Programme Coordinators worked closely with NGOs who were assisting in delivering services under this programme. The Department, however, had limited resources. It was examining the possibility of getting European Union funding to strengthen the VEP. In respect of legal services, she indicated that the Department of Justice (DOJ) had a responsibility with regard to legal representation, prosecution, conviction and compensation. DSD had responsibility in regard to trauma counselling through social workers. Department of Health would provide general and forensic health services to the victims.

Ms Rajbally asked for a list of the centres in the various provinces, as she personally would like to publicise this information through the local media. Even many NGOs were not known, and there was a lack of awareness of where to go. She also felt that publicity about the centres and the efforts might act as a deterrent to the perpetrators. She asked if the DSD would merely concentrate on the victim, or would inform the authorities that a violent crime had occurred.

Ms Nhlapo responded that there would be synergy to follow up through the criminal justice system, through the relevant department. DSD had compiled a directory of services, with a full list of services available, and all contact details. She could provide a copy to the Committee.

The Acting Chairperson asked that this be sent through, so that it could assist Members of Parliament in informing their constituencies, as there was clearly a lack of information and knowledge on the ground.

Submission: South African Human Rights Commission (SAHRC)
Mr Jody Kollapen, Chairperson, SA Human Rights Commission, and Ms Judith Cohen, Head: Parliamentary Legislation and monitoring, SAHRC, noted that hardly a day went by without some anguished debate around crime. Victims of crime were often central to these debates. Crime went to the heart of the psyche of the nation. There had been considerable changes in the criminal justice system over the last thirteen years and there were differing perceptions as to whether the system was sufficiently victim-orientated.

Mr Kollapen cited a recent example where the victim of a violent crime had gone to a clinic for treatment, only to find the perpetrator of the crime already being treated there. The victim was turned away, and told to attend a public facility unless he could pay a R5 000 deposit. The imbalance here was a reality. Very often, when a perpetrator was prosecuted, he would receive legal assistance paid for by the taxpayer, while the victim was left to wait for hours to give evidence. The victim felt excluded from the legal process. His perceptions must be seen in the light of his experiences.
.
There had been calls for greater responsiveness, sensitivity, empathy and compassion. Some had resulted in public action. Various proposals had been made, including the suggestion that victims of crime should be exempt from paying VAT when buying goods to replace those stolen in robberies. There had been realisation that greater attention must be paid to the rights of victims. SAHRC had played a vital role in development of the Victims Charter and the implementation plan. Not enough South Africans were aware of its existence, nor were service providers aware of their duties under the charter. Having it better publicised would go far to creating a better balance for victims in the justice system.

The Victims Charter did recognise the right to compensation, but in a limited context, as it was a right that the victim could exercise against the perpetrator. In reality the perpetrator would often not be in a position to pay any compensation, so practically speaking it was of little effect. The Constitution did not recognise the right to compensation from the State, and legal authority internationally was debatable. Many other jurisdictions had developed victim compensation funds, guided by morality and fiscal possibility. Whether South Africa could or should do the same was debatable.

There were a number of issues to be taken into consideration if the proposal found favour. The first related to who would be covered. In 2006/07 there had been over 500 000 victims of violent crime across various categories. The suggestion here seemed to be that the proposed Bill should apply where there was a defined perpetrator who had been convicted of the offence. Therefore where there was no conviction, that victim could not have access. Given the low conviction rates, many victims would be excluded. The second issue related to administration. In the United Kingdom it was calculated that one staff member could administer about 120 claims. The numbers of potential claims meant that about 3 000 employees would be needed. Experiences with the Road Accident Fund had demonstrated the problems of administration. Thirdly, the quantum was unclear; whether this should be on a sliding scale, or similar to the former workmen’s’ compensation formulas. This did not take into account personal anguish, pain and suffering of individual victims, but individual assessments would require more resources and more funding.

Mr Kollapen noted that the Minister of Justice had requested the South African Law Reform Commission to look into the viability of a Victims’ Compensation Fund already. Public consultations indicated that many victims were not so much seeking compensation as wanting better services at hospitals, such as access to psychological help. This indicated that perhaps instead of compensating them directly the country would be better served in improving quality of service for all victims of crime. The alternatives seemed to be establishing a fund to deal with a limited number of victims where there had been convictions, improving quality of service, or even both. This proposal provided a wonderful opportunity for further discussion by government and other entities, to grasp the issues and understand the realities and constraints that faced this developing country.

The Acting Chairperson reflected that the SAHRC had confirmed the need for a cross-sectoral approach that could lessen the challenges. He said that in his constituency on a Monday people would be laying charges at the South African Police station as a result of incidents that resulted from social problems, which should ideally be addressed at the social development offices next door. The question was how could all departments contribute to a common solution. The inputs had highlighted the problems and the spirit of the proposal.

Submission by Department of Justice
Mr Deon Rudman, Deputy Director General, DOJ said the Department had worked with and agreed with the views of National Treasury. The Department believed that it would be meaningless to pass legislation of this kind without conducting extensive research to arrive at a reliable costing framework for implementation, both in terms of the compensation to be paid and the infrastructure to support it. He agreed that limiting compensation where perpetrators had been convicted would fail to address the plight of numerous victims, especially since the number of reported crimes greatly outnumbered the convictions obtained. He stressed that government had already worked on the issue. The Victims’ Charter had been drafted by a number of role players, had been endorsed by Cabinet and implementation was under way. This Charter must be taken into account. It covered certain rights for victims, including the right to be treated with fairness and with respect for dignity and privacy, the right to offer and receive information, and the right to protection. It also recognised the right to compensation. Section 300 of the Criminal Procedure Act also provided for a court to make an award of compensation where the crime had caused damage or loss to property. This was not ideal, but went some way to recognising victims’ rights. The proposed Bill did not seem to take holistic initiative such as the Victims’ Charter into account. Legislation could not deal with a social issue in a piecemeal fashion. The Department believed that the proposed Bill was premature, and government should not commit itself at this stage on such a sensitive and comprehensive issue without further and more comprehensive research. The SALRC had prepared a report and the DOJ was also working on research and was discussing the recommendations of the SALRC, including comparative studies with other jurisdictions.

Mr Velile Mbethe, Chief Director: Justice and Protection Services, National Treasury, noted that he sat on the Cluster. He referred to the question whether all victims, or only those where there had been convictions, should be compensated. Only a small percentage of crimes committed resulted in convictions. 80% of violent crime was committed by a person known to the victim and often would be a family or community member, so many crimes went unreported, or the victims would be reluctant to testify. Consideration would need to be given to cases where a case was reported and a parent or relative was involved. He believed that if compensation was offered despite cases not being pursued this might have the unintended consequence of encouraging crime as there was a high crime rate within family or social structures.

Discussion
The Acting Chairperson noted that the Sixteen Days Campaign against the victimisation of women and children was held in December, but government said that campaign should be observed throughout the year. He wondered how the SALRC report was linked to the campaign, and how to ensure that true benefits emanated from it. Both victims and witnesses were often afraid to testify for fear of being injured. Domestic crime was even more complex, as victims were often financially or emotionally dependent on the perpetrators. NGOs acknowledged that this was a problem

Mr Kollapen responded that the approach to crime should not be a dialogue between the State and people. To some extent a compensation fund would do that. The issues raised by the Chairperson were complex because of different approaches to dealing with crime. Some would suggest crime could simply be dealt with through effective law enforcement. However, that would not protect a woman or child in their home being abused by a family member. Law enforcement agencies could not grapple with problems of a social nature. Society must recognise the problem. The SAHRC had participated in launching the Moral Regeneration Movement four years ago but were yet to see positive results in terms of changed conduct. Everyone had a collective responsibility to deal with crime, but there was a shortage of moral leadership. Minimum sentences had been proposed as was one solution, more prisons was another. South Africa in reality incarcerated more people than any other country in Africa, yet was supposed to be the leading democracy.

Ms Rajbally asked how domestic violence crimes such as rape could be dealt with where the victims were too scared to report the crime, and were economically completely dependent on their abusers. The law enforcers could not pursue a case that was either not reported or where the victim would not give evidence. In America, where the statistics were lower, offenders compensated victims, and she believed that offenders should take responsibility, and that the system should pursue them with vigour, especially since so much violent crime was against women.

Submission: National Treasury (NT)
Mr Rendani Randela, Director: Justice and Secret Services, National Treasury outlined Treasury’s responses to the proposed Bill. As indicated, DOJ and National Treasury shared similar views. In essence, NT proposed that public funds could be better utilised in strengthening the criminal justice system and supporting victims on a broad base.

Submissions: National Prosecuting Authority (NPA
Mr Rodney de Kock, Director, Public Prosecutions, Western Cape, noted that the NPA aligned itself with the input of the Department of Justice. NPA considered victims of crime to be central to its work and everything it did in the courts and its interaction with the public was geared to serving the victim. Batho Pele principles were part of prosecutors’ performance contracts. NPA acknowledged that there were gaps, which often related to capacity in the courts, since prosecutors were involved full-time in prosecuting cases and could not give the necessary time to the victims. NPA was looking at a mechanism to provide two prosecutors in court, one to consult with and inform the victim about the processes of the court, and take the victim’s needs into account, which would include the question of compensation for the victims, and the gathering of the necessary evidence to support a claim for compensation.

There were no statistics to indicate the number of compensation orders, but no compensation orders could be made for psychological or emotional harm, but purely for liquid amounts that could be easily proved.

NPA would welcome any approach to support victims further on compensation, but wondered if the State was ready in terms of resourcing. It agreed that the proposed Bill raised a number of practical problems. It also agreed that the issue of compensation required a holistic approach, and agreed with the SAHRC that quality of service was important, and also better information about the services available. Rape victims could be assisted at Thutuzela Centres, which attempted to locate together all services (testing, treatment, forensics, police, trauma counselling) at one point. Prosecutors assigned to sexual offences cases were specially trained to deal with the victims of violent crime and rape.
Finally NPA that a collective approach to finding solutions was necessary.

The Acting Chairperson asked Mr de Kock to provide a copy of the NPA’s comments in writing.

Submission: Office of the State Law Advisors
A representative of the Office of the Chief State Law Advisor explained that the role of this Office would kick in once a policy had been determined, and feasibility studies done, as it would translate policies into legislation. This proposed Bill was premature, but certain comments could be made. The office agreed that there were problems in the definition of a victim, but the determination on policy would probably address this. They agreed that the Bill did not consider how assessments of compensation would be made, nor the criteria to be used when making payment. There were concerns around the issue of the functions and establishment of the trust, its membership, administration, legal status and terms of office. The guidelines for approval or rejection of claims were not set out, nor were any appeal procedures. If the trust was a public entity it would have to comply with the Public Finance and Management Act (PFMA) and accountability and record-keeping would need to be addressed in the Bill. Management and control of the funds must be clearly addressed.

Discussion
The Acting Chairperson explained that the committee had allowed the sponsor to present and explain her proposed Bill. It was clear that the Bill was addressing a situation of national interest. Some of the questions were beginning to assist in highlighting the gaps and the need to cost and make contingency plans. Clearly there was a need for further engagement. He did not necessarily agree with comparisons with America, as they did not help the overall objective of trying to reach institutional solutions. He agreed that the NPA had been upfront about the challenges, and perceptions of people as to whether they would be victimised again exacerbated the situation. Chapter Nine institutions were expected to work closely with the NPA, but the challenge was also the scope and prevalence of social crime. It would be most useful to see the research by SALRC.

Ms P Sekgobela (ANC) cautioned that reliance upon a system of grants could be self-destructive. She cited a hypothetical example of a father raping his daughter, a charge being laid by the mother, and then withdrawn, yet compensation could still be paid to the child or her guardian. She believed the proposed Bill was sending out the wrong message. She agreed that there needed to be compensation, but this must take the form of support only, and not a monetary grant.

The Acting Chairperson said that she had raised a valid argument.

Ms Rajbally supported Ms Sekgobela. Fraud such as foreigners accessing information and allegedly “marrying” a woman, then paying her money to keep quiet was rife. Young girls were getting themselves pregnant specifically to access child support grants. The Committee must be aware of and cautious about these kinds of circumstances. The victim should not be unwittingly made a victim again, through being threatened by perpetrators. There must be full and open discussion, with consideration to all consequences, intended and unintended.

The Acting Chairperson gave a brief summary and asked each Department to respond to the following key points:
- The proposed Bill must be considered not only in terms of its words, but also its spirit
- If the principles were desirable, what would the best way forward be in terms of assisting the drafter, or indicating gaps and corrections;
-What would be the government policy, and would each department be using a common approach, or was there a danger of distortion;
- How could comparative studies be done – for instance was it preferable to use Brazil rather than Canada, or where could comparisons, both positive and negative, be done in Africa. It must be borne in mind in all cases that many South African cases were not being reported and this was to be factored in;
- How could resources best be shared, especially for research
- How could the principles and the emotions be translated into legislation
- What programmes did each department have, and what special training was being offered for harassment, dealing with rape victims;
-How best to work together and consolidate; remembering that the Victims’ Charter did not “belong” to Justice;
- The role of the Government Communication and Information Service

Mr Randela, National Treasury responded that NT was committed to service delivery. The ideals of services already available, and the Victims’ Charter, were good, but the question was whether victims were really aware of and empowered to use them. Compensation of victims should be a constitutional imperative, and judicial officers should in his view be compelled to consider it. There was already a National Institute for the Rehabilitation of Offenders (NICRO) yet no dedicated board to assist the victim, and help him with psychological or medical support. A possible way forward might be a one stop centre giving the victim access to all services. There would have to be performance indicators to support budget for victims of crime, and a unit dedicated to them. He pointed to the prevalence of social crime, heightened by low reporting. The low reporting and high rates of withdrawal must be researched, as also whether a high conviction rate would deter the potential perpetrators.

The Acting Chairperson suggested that the question of performance indicators must be flagged, as this could include training of community development workers, educators picking up problems, and community police forums. The question of resources was a key issue.

Mr Rudman, DOJ, indicated that DOJ did not support the Bill as it believed it was premature, had not been properly costed and was also flawed in many aspects, as indicated by the concerns expressed. The principle of a compensation fund for victims of crime still required more research. He suggested that perhaps another approach was needed to improve the plight of victims of crime. The proposer should perhaps look at how existing structures could be enhanced and services improved. The Victims’ Charter was trying to achieve this, and was a comprehensive document dealing with all aspects relating to victims of crime, that brought in all the role players. He reiterated that it had been approved by Cabinet and a comprehensive strategy to implement it was in place. He suggested that DOJ should be given the opportunity to brief the Committee on that Charter to show how victims would be protected.

The Acting Chairperson agreed that it would be useful to consult further with Departments, and he would be pleased also to have input from South African Police Services.

Mr de Kock, NPA, agreed that government departments were already working with victims. Communication was a problem and normally victims would only contact departments after an incident, but were not aware of what services existed. Pamphlets were distributed at courts, but should perhaps be more widely available. Work was being done in the Clusters, particularly Justice, Crime Prevention and Security, and there was coordination at various levels, although it could be improved and plans better aligned. The NPA could also brief the Committee about challenges, and what was in place to support both the Victims’ Charter and the victims themselves.

The Acting Chairperson noted that public education formed an essential part of holistic approaches such as disaster management, and people must be empowered through better education.

Mr Kollapen, SAHRC indicated that it was difficult to commit to a further presentation at this stage, but a representative would certainly be present. They would be happy to put proposals in writing.

The State Law Advisors indicated that they could attend a meeting on the following Friday and would be happy to assist with formulation of a draft.

The Acting Chairperson responded that responsibility for drafting might likely rest with Justice. The meeting would discuss policy issues.

Ms Rajbally agreed with the need to explore all avenues of communication, through the print media, the possibility of Knock and Drop distribution and radio, especially for rural areas. Positive awareness was key. Everyone must work together and take a proactive stance.

The Acting Chairperson noted that GCIS should also be present at the next meeting because the issues raised were part of their mandate. Multi purpose centres and one-stop shop concepts rested with GCIS. Every region of South Africa was served by a GCIS office, and they often operated through Parliamentary constituency offices.

The meeting was adjourned.