Domestic Violence Act Implementation: input by ICD; RSA/Malta Police Cooperation Agreement
Meeting Summary
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Meeting report
SAFETY AND SECURITY PORTFOLIO COMMITTEE26 October 2007
RSA/MALTA POLICE COOPERATION AGREEMENT & IMPLEMENTATION OF DOMESTIC VIOLENCE ACT: INDEPENDENT COMPLAINTS DIRECTORATE BRIEFING
Chairperson: Ms M Sotyu (ANC)
Documents handed out:
RSA/Malta Police Cooperation agreement
Independent Complaints Directorate’s Domestic Violence Report to Parliament Analysis
DVA Reports-ICD Presentation to the Safety and Security Committee
Committee Programme
Audio recording of meeting
SUMMARY
The Department of Safety and Security briefed the Committee on the RSA / Malta Police Cooperation Agreement. The presenter explained how similar agreements between South Africa and other countries were entered into, and gave an outline of the procedure followed after the agreement’s text had been decided on. There was need for cooperation in view of globalisation, emergence of new technology and sophistication of crime. The negotiations on the RSA/Malta Cooperation agreement began in 1998, and the agreement was signed on 4 April 2007. The agreement provided for cooperation in aspects relating to public order policing, technical research, training of staff, crime prevention and on issues relating to terrorism. It did not require ratification by parliament but must be tabled before both houses.
Questions by Members related to the lack of trafficking legislation at present in South Africa, the time frame for the agreement, the situation if specific cooperation was required in one area, quantification of financial obligations, problems with border police in neighbouring countries, and extradition of criminals.
The Independent Complaints Directorate presented its reports on the Domestic Violence Act to the Committee. It noted that the Promulgation of the Domestic Violence Act 116 of 1998 was a step forward to the realisation of the protection of the rights of women. The mandate of the ICD included the monitoring of police stations to check on their compliance with the obligations imposed on the police by the Domestic Violence Act, making recommendations to the police on ways of tackling domestic violence, and receiving complaints of non-compliance with the Act. Failure to comply with the obligations constituted misconduct under the South African Police Service Act. Challenges were faced around failure of the police to arrest the perpetrators, the failure of police management to take domestic violence seriously, police reluctance to conform to the conditions prescribed by the law, shelter for victims of domestic violence, police officers being unwilling to prosecute colleagues who were perpetrators of domestic violence, or to confiscate their firearms, and access to remoter areas. The re-structuring of the ICD and some of the programmes being offered would hopefully provide some solution.
Members raised questions on the quality of training, the need for awareness campaigns, the time frame for completion of research projects, police officers who were themselves perpetrators of domestic violence, the reporting in the Annual Reports, the fact that all police stations should be linked with shelters for victims, the apparent lack of uniformity of inspection across the provinces, the fact that perpetrators should be arrested immediately, the role of the ICD research body, the need to establish relationships with other departments, particularly Home Affairs, and the need for better training. Further questions related to the challenges arising from the Police Commissioner not having to give reasons for rejecting proposals from the Directorate, the problems of remote areas, confiscation of some firearms.
MINUTES
RSA/Malta Police Cooperation Agreement: South African Police Service (SAPS) Briefing
Assistant Commissioner Philip Jacobs, Head, Legal Support, SAPS, tabled the RSA/Malta Police Cooperation Agreement. He gave a brief background of how agreements between South Africa and other countries were entered into. He stated that they were normally initiated through diplomatic channels, after which the Department of Foreign Affairs (DFA) would be asked to comment on the need for the agreement and the benefits it carried. The South African Police Service (SAPS) would then consult with stakeholders in relevant departments and would obtain authorisation from the National Commissioner and the Minister to proceed with negotiations.
He stated that once a final text of the agreement was decided upon, the procedure laid out in Chapter 5 of the Manual on Executive Acts of the President of the South Africa and Section 231 of the Constitution must be followed. He set out that this procedure would involve obtaining an opinion on the consistency with domestic law from the State Law Advisers at the Department of Justice, obtaining an opinion on consistency with international law and South Africa’s international obligations from the Law Advisors at the DFA, approval by the President, binding by the Treaty section of the DFA, A President’s Minute, signature, and finally deposit at the Treaty Section for safekeeping. Police Cooperation Agreements were regarded as technical/administrative agreements in terms of section 231(3) of the Constitution. They were binding on the South African once entered into, without the necessity for prior approval of the National Assembly and the National Council of Provinces, but must be tabled in both Houses within a reasonable time.
He stated there was need for cooperation in view of globalisation, emergence of new technology and sophistication of crime, especially for crimes that could only be successfully combated through international cooperation. Article 13.9 of the Transnational Organised Crime Convention provided that states parties should consider concluding bilateral or multilateral treaties and agreements to enhance effectiveness of international cooperation. He noted that South Africa had recently negotiated some agreements with the United Arab Emirate and Uganda. South Africa had agreements with ten, including Chile, Brazil, Argentina and Portugal, and multilateral agreements with Southern African countries.
He stated that the negotiations on the RSA/Malta Cooperation agreement began in 1998. It did not offend against any previous agreements. The agreement provided for cooperation in aspects relating to public order policing, technical research, training of staff, crime prevention and on issues relating to terrorism. The agreement did not apply to extradition and mutual legal assistance, which fell under the Department of Justice and Constitutional Development. He identified that the cooperation would be through exchange of information on crimes, on legislation, exchange of literature, assistance with searches of missing persons and suspects at large. Cooperation may be refused if the obligations under the agreement posed a threat to sovereignty of the state.
Discussion
The Chairperson noted that almost all Members present today were ANC Members.
Ms P Daniels (ANC) asked the presenter when the agreement was entered into.
Comm Jacobs noted that the agreement was signed on 4 April 2007.
Ms Daniels noted that the presenter made reference to trafficking of persons yet noted that South Africa did not have trafficking legislation.
Comm Jacobs noted that lack of trafficking legislation was detrimental to South Africa but that there were currently attempts to draft legislation on this issue. South Africa had obligations under the Transnational Organised Crime Convention to cooperate in combating trafficking. He noted that the obligations ere undertaken through immigration rules, but unfortunately this tended to punish not the perpetrators but those being trafficked.
Mr L Diale (ANC) asked whether there was a time frame for the agreement.
Comm Jacobs noted that the agreement remained in place for a period of five years.
Ms J Sosibo (ANC) noted that some countries required the agreements to cover cooperation in combating specific crimes, for instance, drug trafficking. She asked what would be the situation if South Africa wanted a more detailed agreement.
Comm Jacobs noted that the contents of the agreement were determined by the negotiations between the countries. Where a country required cooperation in only one area South Africa could forward a counter-offer negotiating for more cooperation. He stated that where the benefits of the agreement were substantial, for instance agreements on drug trafficking with countries that had the largest number of perpetrators, such as Brazil and Peru, South Africa would normally accept such agreements.
Mr S Ntuli (ANC) noted that international agreements did not necessarily carry financial implications. He stated that such agreements should carry financial obligations, to ensure that countries invested equal resources to projects such as maintenance of borders. He gave an example of the Mozambique / South Africa border that was maintained on the South African but not on the Mozambique side.
Comm Jacobs stated that it would be difficult to quantify financial obligations when negotiating mutual agreements. He stated that the benefits from some agreements were priceless, and, for instance, that the country had benefited substantially from the agreement with France. The French government had trained the South African police.
The Chairperson noted that the issue of borders was contentious. She gave an example of the Swaziland border where a stolen car was parked five meters from the South African border but the Swaziland police did not assist in retrieval of the car.
Comm Jacobs noted that South Africa had special relations with its neighbouring countries. There were in place Joint National Commissions with Mozambique, Zimbabwe, Swaziland and Botswana that met and discussed border issues. He stated further that the Southern African Customs Union (SACU) agreement, although multilateral in nature, could have a bilateral effect that allowed cooperation between countries. However under circumstances such as that mentioned by the Chairperson, South Africa was bound by the legal system of the country where the crime was perpetrated. In cases of theft of vehicles, he noted in some instances that the problem was that the victims of car theft, after recovering from insurance companies, would not bother to follow up the cases.
Ms Daniels asked what was the process being followed when a country required extradition of criminals.
Comm Jacobs noted that the Extradition Act and international law determined the process of extradition. The Department of Justice and Constitutional Development dealt with issues of extradition, but the process was long and required cooperation between the country seeking extradition and the country where the perpetrator was seeking refuge. The process involved a request from the country seeking to extradite to the country holding the criminal, and a determination of obligations by the requested state.
Domestic Violence Act compliance report by Independent Complaints Directorate (ICD)
Mr Patrick Mongwe, Acting Executive Director, ICD, noted that the promulgation of the Domestic Violence Act 116 of 1998 (the Act) was a step forward towards the realisation of the protection of the rights of women. He noted that the mandate of the ICD was to monitor police stations’ compliance with the Act, make recommendations to the police on ways of tackling domestic violence and receive complaints about non-compliance with the obligations imposed on the police by the Act. Failure to comply with the obligations constituted misconduct under the South African Police Service Act 68 of 1995 (SAPS Act). He noted that the ICD had undergone restructuring, a process that was proposed by the Committee and approved by the Minister. This had increased investigators from 75 to 110. He stated that a research body had been established to assist the ICD in its mandate with regard to domestic violence. He was of the view that this would help the ICD in future to carry out its mandate more efficiently.
Ms Noluthando Sihlezana, General Manager, ICD, stated that the ICD’s DVA reports were factual representations of analyses of cases of non-compliance with the Act by members of the SAPS. Types of non-compliance included failure to effect arrests and warrants, failure to advice complainants of their options, failure to assist complainants to open criminal cases, failure to issue a warrant of arrest, failure to refer the victim to a place of safety, failure to seize firearms, and failure to serve protection orders.
Ms Sihlezana outlined that the functions of the ICD included not only investigation of non-compliance, but also referral for investigation or disciplinary action, conducting DVA audits, cell inspections, processing applications for exemptions and conducting awareness campaigns and workshops with SAPS members.
Mr Moses Lamini, Senior Manager, ICD, tabled for the Committee the breakdown of non-compliance cases in the provinces. For the period January to June 2005 he noted that the greatest non-compliance was failure to effect arrest of the respondent. The reasons behind non-compliance were based on police officers trying to mediate the situation instead of effecting arrests. Police officers failed to open criminal dockets or refer matters for prosecution by opting instead to refer the matter to area elders. In addition the members of the SAPS rarely advised victims to open criminal cases.
Mr Lamini gave an example of domestic violence perpetrated by a police officer in Gauteng, where the firearm used to commit the crime was not confiscated and the police officer was not prosecuted. He noted that police officers often faced challenges in finding shelter for victims of domestic violence. In such cases the police were allowed to apply for exemptions to the ICD.
Mr Lamini noted that one of the biggest challenges faced by the ICD was that the police were not willing to conform to the conditions prescribed by the law. They preferred to opt for mediation. In the period between January to December 2006 there were some questionable figures in Kwazulu Natal as to cases reported. ICD would investigate the apparent anomaly and the low number of cases at the beginning of the year. He noted that ICD was engaging the police in workshops on how to handle domestic violence cases.
He further stated that some non-compliance cases reported arose from the public’s expectation of immediate arrest of perpetrators. The police required victims to serve the subpoena to the perpetrators, and this practice was not acceptable.
Mr Lamini took the Committee through slides of cases where the police from different provinces had applied for exemptions from prosecution for alleged non-compliance. Police officers were often ignorant of the law. In the period between January to June 2005, 38 exemptions were granted, while 10 applications were rejected. The provincial statistics were tabled. From January to June 2006 28 applications were granted, and 6 were rejected. He noted that in many instances the police had genuine reasons for non-compliance. He was of the view that the training of police on domestic violence was a challenge, but that the ICD was doing its best to sensitise the police on domestic violence. Police management was a big obstacle to the resolution of domestic violence as it did not take the domestic violence seriously.
Mr Lamini added that out of the reports forwarded for the period January 2005 to June 2007, a total of 50 cases were substantiated, 81 were unsubstantiated for lack of sufficient evidence, 36 were dismissed as a result of refusal of the victims to give evidence, 42 cases were withdrawn, 10 were unfounded and 219 cases were resolved when the misunderstandings between police and victims were found and resolved.
Discussion
The Chairperson stated that the Eastern Cape Province was seriously handicapped with respect to domestic violence. She was of the view that the police did not know how to handle these cases and that the quality of training should be improved.
Mr Mongwe noted that the non-compliance of the Eastern Cape Province police was a challenge. ICD had requested that the training of police on domestic violence be undertaken at the police academies. The proposal had been approved and the ICD would plan to carry out lectures at the police academies on domestic violence. He stated that ICD had introduced a career path programme where investigators would be trained on policing and on domestic violence.
A Member noted that ICD should prioritise awareness campaigns and stated that non-compliance was a sign of lack of awareness. She asked whether ICD had joint programmes with communities on reporting of non-compliance cases.
Mr Mongwe noted that ICD carried out several awareness campaigns to sensitise people on domestic violence and the work of ICD. He stated that ICD took advantage of any public forum held in the provinces to create awareness. ICD had begun to utilise the media to inform the public about domestic violence. In previous years there was no budget in the media for running programmes on domestic violence.
The Member asked to be informed of the time frame within with the research projects undertaken by ICD would be completed.
Mr Mongwe noted that ICD hoped that the research projects would be completed by July 2008.
The Member asked what the ICD was doing in cases where members of the police were perpetrators of domestic violence.
Mr Mongwe noted that the challenge was that police officers were not ready to prosecute colleagues who were perpetrators of domestic violence, nor to confiscate their firearms. In most cases these perpetrators would end up using the firearms to kill their partners. He noted that the ICD would intensify its investigations to ensure the prosecution of police officers who committed domestic violence.
Ms A Van Wyk (ANC) stated that there was still more room for improvement on the reporting of the ICD. She gave an example of the inclusion of rape and custody complaints in the Annual Reports. These did not fit in with the mandate of the ICD.
Mr Mongwe appreciated the advice given by Ms Van Wyk and noted that issues such as rape and custody cases should not be part of the reports. He stated that the ICD would in future restructure its reports, taking into consideration the comments made by the Committee.
Ms Van Wyk noted that the lack of shelter for victims of domestic violence being used as an excuse for exemption against non-compliance reports should not be entertained. It must be expected that each police station had access to a victim support centre.
Mr Mongwe noted that some police stations did not have centres for victim support, and that it was incumbent upon the government, the Departments of Justice, Social Development and Public Works to assist in the construction of safe houses, or the allocation of public buildings to be used to shelter victims of domestic violence.
Ms Van Wyk was concerned about the way provinces were inspected. It seemed that each province was monitored differently and noted that there was need for some uniformity.
Mr Mongwe noted that the ICD was working to a standard proforma that would be used by investigators to ensure uniformity in the monitoring of the provinces.
Ms Van Wyk noted that there was a shortage of staff to investigate cases of domestic violence. She was of the view that the ICD reports were not clear on how many of the cases seeking exemptions were done by the police and how many were instigated by ICD.
Mr Mongwe stated that the reports in future would give a breakdown of the number of exemptions applied for by the police, and those instigated by ICD.
Ms Van Wyk stated that it was right for the public to expect that perpetrators of domestic violence should be arrested immediately.
Mr S Mahote (ANC) agreed with Ms van Wyk
Mr Mongwe concurred with Ms Van Wyk that this public expectation was reasonable.
The Chairperson reiterated Ms Van Wyk’s sentiments on the issue of different approaches taken when monitoring each province. She stated that her Committee had noted that KZN had made good progress on handling cases of domestic violence.
Mr Mongwe was happy to note that the Committee appreciated the work carried out in KZN. ICD was working towards ensuring that other provinces improved their services.
The Chairperson asked what was the role of the research body that was established under the ICD. She noted that the Committee had had reservations on the implementation of this body even before it was implemented, and she requested what value it added to the ICD.
Mr Mongwe noted that the research project had assisted the ICD to engage with SAPS on the findings of the projects. He proposed that he should forward the research findings to the Committee, so it could validate the value of the research projects.
Ms Daniels asked whether ICD had partnered with the Department of Home Affairs, as it sometimes received reports on cases of domestic violence.
Mr Mongwe agreed that such a relationship such as the one proposed by Ms Daniels between ICD and Home Affairs was important, and the relationship would be created.
Ms Daniels noted that the clerks who worked in the police stations should be trained on handling domestic violence cases. She noted that in most cases there was no documentation of reports of domestic violence as the clerks were not trained on the reporting.
Mr Mahote asked why the ICD referred to the issue of lack of shelters when reporting on non-compliance, where they were aware of the lack of shelters.
Mr Mongwe was of the view that it was important for the ICD to report of the issue of lack of shelters to ensure that it did not loose the statistics of such cases.
Mr Mahote asked whether the ICD conducted follow ups to see whether the police were taking into account issues brought out in the workshops conducted, to sensitise them on domestic violence.
Mr Mongwe noted that a major challenge of the ICD was the removal of the regulation requiring the Police Commissioner to give reasons why he rejected proposals from ICD. He stated that this rendered the ICD toothless. ICD was trying to get this regulation re-established. He noted that ICD was working with cluster police to get feedback on whether the police had been sensitised on handling domestic violence cases.
Mr M Moatshe (ANC) noted that some areas were inaccessible and wanted to know how the ICD received reports from these areas, as domestic violence was surely a problem there too.
Mr Mongwe noted that the ICD was in the process of establishment of bases where it would access remote stations through satellite.
Mr Moatshe noted that he had received information that some firearms given to investigators had been confiscated and asked why this was so.
Mr Mongwe noted that investigators were required to comply with the requirements under the Firearms Act. Firearms that were confiscated were held by investigators who had not met the requirements of the Act. He stated that the reported cases arose from complaints by investigation officers trained in policing, who expected to be issued with firearms despite their lack of competence to handle firearms. He stated that the ICD has accredited institutions to train investigators on handling of firearms, and was in the process of doing such training.
The Chairperson thanked the delegation and noted that some of the findings from January 2007 to date would be discussed in the next meetings after the members had had a chance to go through the documents. She thanked Mr Mongwe and hoped that he would hold his position for a while to ensure the finalisation of projects.
The meeting was adjourned