Gender-Based Violence Bills: public hearings day 1
20 October 2020
Chairperson: Mr G Magwanishe (ANC)
- CCL submission
- COSATU presentation
- COSATU submission
- SAPS submission
- ANCWL submission
- Media Statement: Committee on Justice and Correctional Services Continues with Public Hearings on GBV Bills
- Children’s Institute submission
- Children’s Institute presentation
The Committee convened on a virtual platform for day one of the public hearings on the gender-based violence Bills, namely, Criminal Law (Sexual Offences), Domestic Violence Amendment, and Criminal and Related Matters Amendment Bill. Today the Committee heard submissions from the African National Congress Women’s League (ANCWL), Children’s Institute (CI), the Congress of South African Trade Unions (COSATU), the Centre for Child Law and the South African Police Service (SAPS).
The ANCWL was in support of most of the provisions, only raising issues in its submission with the points it differed on. It proposed a number of definitional changes.
The CI emphasised definitions as well, insisting that the definition of stalking should remain in the Bills and called for therapy for victims to be provided by the state. It did not support the idea of a National Register for Sex Offenders (NRSO).
COSATU felt that the Bills contained a fair compromise in the law, although it would prefer more draconian penalties in order to prevent the scourge of GBV.
SAPS appeared to agree upfront however, it took issue with a number of definitions and provisions, arguing that the effect of their implementation would remove police and peace officer discretion to the detriment of victims. This was deeply concerning to the Committee as it felt that SAPS and the Cabinet sub-committees with SAPS representatives, through whom the Bills had passed, adequately agreed on the contents of the Bills. This was a grave concern regarding implementation of the Bills.
The Committee insisted that the Department of Justice and Constitutional Development (DOJ&CD) and SAPS meet again to discuss the Bills in order to alleviate problems identified. It also insisted that after the public hearings, the DOJ&CD would have to appear before it in order to provide its implementation and budgetary plan to the Committee.
Finally, the Centre for Child Law presented, arguing strongly for the protection of children and in particular that children’s names not appear on the NRSO and cited a Constitutional Court case it was involved in, which the Committee found helpful. It also proposed that resources would be better spent strengthening the SAPS criminal records system as it already contained all the requisite information. It felt that doing a criminal record check would be a better alternative to the NRSO.
The Committee invited all of the contributors to supplement their presentations with concrete recommendations and amendments and thanked them for their contributions.
The Chairperson began by addressing housekeeping issues to do with public hearings. The Committee did not expect that there would be a House sitting the next day nor a motion of condolence which would affect some of the Members who served on the Committee, such as the late Adv Hishaam Mohammed. Therefore, from 2pm it would attend the condolence motion then the following day would be the debate on the President’s recovery plan and on Thursday there would be questions to the Deputy President. He said that the Committee is going to try and ensure that it finishes the public hearings; however, some stakeholder hearings may need to be pushed to the next week. He apologised to the stakeholders saying it was not anticipated that there would be changes to the programme in the manner in which it has happened.
He then introduced the organisations presenting beginning with the ANC Women’s League, followed by the Children’s Institute, COSATU, the Centre for Child Law and SAPS.
On Wednesday, 21 October, the public hearings would have the following participants: Freedom of Religion in South Africa; South African Women in Dialogue (SAWID); Research ICT Africa; Rape Crisis; The South African Institute for Advance Constitutional Rights and International Law and others.
He gave the ANCWL 20 minutes to present, after which clarity-seeking questions would be asked for 30 minutes. The questions are merely for the Committee to understand the presentations in detail as the Committee still needs to deliberate after having received all the public input.
Public hearings on Gender Based Violence Bill
Submission by the African National Congress Women’s League (ANCWL)
Adv Nomazotsho Memani introduced herself as the lead presenter of the ANCWL views on the three Bills.
Introducing the team, she said that it is made up of legal practitioners and gender activists; Adv Nothemba Mlonzi, Adv Nthabiseng Sepanya Mogale, Adv Sandra Makosha, Ms Kgwerano Mpamonyane, Ms Philile Ntuli, and Ms Tholi Ngwenya,
Criminal Law (Sexual Offences and Related Matters) Amendment Bill
Ms Tholi Ngwenya covered the following concerns:
1. The scope of the register.
She said that the ANCWL felt that its scope was currently narrow and should be extended beyond employer and employee relations, to include individuals who may come into contact with vulnerable people outside of this context, for example in their own voluntary capacity.
2. Section 2, definition of ‘person who is vulnerable’
The ANCWL felt that the act needs to be more specific in terms of who should be protected including the elderly, women and children and LGBTQIA+ people, irrespective of the perpetrators’ gender.
3. The vulnerability of women who do not have access to social capital in our society simply cannot leave their partners.
These women sometimes rely on shelters where they are catered for. Persons working in these shelters should ordinarily be screened for sexual offences unless there happens to be children living in the shelter. The consequence of this is that these women only gain protection by proxy of their children as they are not included in the current definition. The ANCWL therefore proposed that the definition be broadened.
4. Requested that section 5 relating to sexual assault be more gender specific in order to protect people who form part of the LGBTQIA+ community and thereby ensuring that all people are protected, regardless of the perpetrator’s gender and in cases of intimate partner violence.
5. Lastly, the ANCWL argued that the age included in the definition of persons who are vulnerable ending at age 25 for a person receiving an education at an institution of higher education. It felt that this is not based on research and is therefore, arbitrary.
Repercussions for perpetrators
The ANCWL is of the view that society has little faith in the justice system. As a whole, it feels that it is ineffective and that this could change in the following ways:
The police, who are the most basic unit of the criminal justice system, seem unable to prevent secondary victimisation when victims of Gender Based Violence (GBV) go to police stations.
On bail applications, it submitted that the Criminal Procedure Act (CPA) be amended to place all GBV offences under schedule six as this will ensure that it is difficult for the accused to be released on bail. As much as the public has a misunderstanding of the bail system, this will increase public confidence in the justice system when perpetrators are not released often.
It also proposed a request that a directive by the National Prosecuting Authority (NPA) be issued instructing prosecutors that in all GBV cases, bail must be opposed. It felt that this would be a deterrent to the structural issue of GBV.
It called for the codification of all GBV offenses through inclusion in the legislation.
Generally, the Bill covers the essential concerns, however, the ANCWL felt there needs to be more concerted effort made in addressing systemic issues such as ensuring that the legislation is implemented and by expanding the definition of persons affected by sexual offences and GBV.
Criminal and Related Matters Amendment Bill
Adv Nthabiseng Mogale presented the ANCWL’s views on the Bill as it relates to amendments to the Magistrates Courts Act (MCA), Criminal Procedure Act (CPA) and Superior Courts Act. In relation to the MCA, anything not amplified in its presentation, is something which the ANCWL agrees with.
Magistrate Court Act of 1944
Section 51A 1(c) of the MCA
The ANCWL feels that the verification of the complainant with the biological and mental age of 18 years or below should be the responsibility of the state in the same way that it is responsible for accused persons in line with Sections 77, 78 and 79 of the CPA. Emphasis by these sections on bringing a doctor to court must be the state’s responsibility.
Section 51A (2) of the MCA
Enhances s51A (1) and justice in general and consistency.
Section 51A (3) of the MCA
Requires that the prosecutor, in his notes, ensure that this is done by reporting to the court as part of preliminary issues to be dealt with before going into the merits of the case. It is a good provision.
Section 51A (4) (a) of the MCA
Appointments of intermediaries are a supported development but the ANCWL requested that the intermediaries be auxiliaries in order to ensure that they are accountable to a professional body. It recommended a number of unemployed graduates that can be trained in certain sectors such as; paralegals, auxiliary social workers and counsellors attached to organisations. This should be prioritised by the NPA. It also proposed security clearance in relation to previous criminal records, but not necessarily relating to debt as it understands the reasons women end up in debt.
Section 51A 4(b) of the MCA
A minimum number of intermediaries should be available at the courts at all times to avoid unnecessary postponements and secondary victimisation in sexual cases. This number should be vast. Intermediaries must not only be multi-lingual in South African languages, but also in Southern African Development Community (SADC) languages.
Recordings and reasons
The ANCWL approves of the fact that recordings and reasons be given even when there is no intermediary and these should form part of an appeal in cases where there were no intermediaries and people feel disadvantaged by this.
Section 51B of the MCA
The Code of conduct should take into consideration all of the suggestions in s51A (4) (a) and apply them to s 51B. Apart from this qualification, the ANCWL has no problem with it.
Section 51C of the MCA
The use of audio-visual links in proceedings other than criminal proceedings is very helpful as it will deal with backlogs and will assist in the speedy resolution for people living outside of the Republic. However, it must be borne in mind that there are those who cannot afford technical equipment within the country; hence this should not be a norm, but should be carefully selected in order for justice to be meted out.
Criminal Procedure Act 51 of 1977
Section 59 of the CPA
The ANCWL supports changes to this section because of the inclusion of domestic violence and harassment as crimes to be taken seriously.
Section 59A of the CPA —Bail
This section states that the Director of Public Prosecutions (DPP) ‘may’ authorise the release of an accused person on bail. Although it understood that bail is a right under s35 of the Constitution, it felt that in cases of domestic violence, it would like the same high standards used in schedule five and six offences. Essentially, it requested that the courts consider bail only under exceptional circumstances. The entirety of s60 should be taken into consideration as well as further considerations including type of crime, societal perceptions, expectations of justice; period of violence and ongoing threats to complainants and their families.
It correctly puts the onus on the DPP to prove the need for the granting of bail; however the ANCWL would like the Bill to state the circumstances when bail will be granted.
Section 60 of the CPA
This should also mention ‘all related persons’ as some parts of the act mention ‘all related persons’ and this should be made uniform.
Section 68 of the CPA
Changes are welcome; although similar ones existed under s60 which were ignored by police and prosecutors’, therefore retraining is needed.
Section 158 of the CPA
According to the ANCWL this section is very progressive and will assist in dealing with backlogs and cold cases. It will also cut costs for transportation and accommodation for witnesses. However, care must be taken not to exclude those who do not have access to technology.
Section 299A of the CPA
Proof that conduct was ‘intentional’ falls on the victim, which is not fair.
Section 316B of the CPA
The ANCWL considers it to be a good suggestion however; it would like the act to define ‘grave failures of justice.’
Amendments to Schedules 1, 2 and 7 are supported.
The amendment of Part III of Schedule 2 is inconsistent with other legislation defining a child as someone under the age of 18 and should be brought in line with this.
Criminal Law Amendment Act 105 of 1997
Uniformity with other acts is needed for the age limit in s15 (a) (iii), it should be 18 across the board.
Superior Courts Act 10 of 2013 Section 37A, 37B and 37C
These proposed amendments are welcomed where people can access justice through technology. The ANCWL cautioned however, that the Bill should not make this the mainstream or only option, but rather be one of the many options available to access justice.
The ANCWL commented that the Bill is progressive in recognizing the limitations of older persons, and persons with physical and mental vulnerabilities.
Intermediaries must be multi-lingual in South African languages and also in SADC languages.
Bail still needs to be amended further and the placement of GBV crimes to be placed in schedule five and six needs to be considered.
Amendments made to the Bill need to be monitored carefully to ensure implementation.
Domestic Violence Amendment Bill
Ms Kgwerano Mpamonyane proposed a number of definitional changes and amendments that should be made to update the legislation and deal with patriarchal tendencies which tend to re-victimise victims, including:
The definition of a child in s2(b) to be made uniform with the definition of the child in the Children’s Act.
The definition of ‘coercive behaviour’ to include extortion, blackmail, torture, humiliation, dehumanising acts and threats to induce favours.
The definition of ‘controlling behaviour,’ to include overactive jealousy, belittling, teasing, ridiculing, uncomfortable sexual acts and acts that can put the children’s lives in danger such as stalking and manipulation.
The definition of ‘damage to property’ to include both moveable and immovable property.
Section 2(i)(g)-Removal of stalking for substitution with spiritual abuse
The ANCWL proposes that stalking should not be removed from the Bill as stalking can be part of an act of domestic violence. It noted that stalking retains protection under the Protection from Harassment Act 17 of 2011.
Section 2(i)(h) Exposing children to domestic violence
It proposed that this includes other related persons in addition to children, to cover persons who suffer from limited mental capacity and people without the necessary capacity to act on their own.
The definition of ‘emotional, verbal and psychological abuse’ to include direct or indirect abuse through the use of social media and other intended electronic means.
Insertion of Section 2A and 2B in Act 116 of 1998: 2B ‘Obligation to report domestic violence and to provide information’
The ANCWL supports the establishment of a duty to report instances of domestic violence against children, persons with disabilities and older persons, but questions whether this will not criminalise the failure not to report, as it could limit the agency of friends and family and cause them not to buy in.
Substitution and insertion of Section 3A in Act 116 of 1998: ‘Arrest by peace officer without a warrant.’
Although welcomed for its extension of protection to victims by allowing peace officers to arrest anyone it suspects, the ANCWL cautioned that peace officers should be aware of systematic issues which remain a problem to this day.
The ANCWL generally welcomes amendments relating to this section. In addition, it proposed that s4(3)(a) be further amended to remove the word ‘material.’
Additionally, it called for ‘a specified time period’ to be substituted for the words ‘reasonable time’ because this is an urgent matter.
The organisation felt that the problems faced, that have to do with GBV in South Arica are structural and systematic and that in the absence of a structural overhaul that radically shifts economic, political and relationship dynamics between men and women, the status quo will remain the same.
Ms N Maseko-Jele (ANC) greeted the presenters and the team and proceeded to say that she appreciated and welcomed the presentations and asked the first presenter a question regarding the age issue. She asked what their proposal was on that point and whether they had a specific age proposal, or whether they desired that it be kept open
Ms Y Yako (EFF) asked why the ANCWL took so long to involve itself.
Ms J Mofokeng (ANC) began by saying that she awaits to hear what further substantiation the EFF has for its statement, as it is well known that the ANCWL has been in the forefront of the fight against GBV. She thanked the presenters and congratulated them for a presentation well done. She went on to further say that what would need to follow has to do with protection orders, their implementation, whether there is a need for the existing parole system and how the NRSO is going to be implemented. She concluded with thanks.
Mr S Swart (ACDP) thanked the presenters and congratulated one of the presenters, as they would be admitted as an advocate the next day. He welcomed her to the profession. In general, he said that the training of police and implementers needs to be emphasised. He asked how implementation of legislation can be improved as this is a major issue which the Committee needs to deal with.
The Chairperson asked for the ANCWL to respond and asked that it send copies of its slides to the Committee.
Responding to the question about age, Ms Memani said that the age of a child is not consistent.
Ms Ngwenya said that the Bill speaks to persons who are vulnerable in institutions of higher learning. It felt that there is no scientific reason for being vulnerable and age should not be the determining factor of vulnerability. Hence it is proposing that the provision should not be included as it excludes women over the age of 25 in institutions of higher learning
Adv Sandra Makosha said that implementation of good legislation is constrained by financial barriers. She suggested that it is hard to implement good laws without budgetary follow-through, further noting that it is not the role of legislation to solve the issue of violence and GBV. No single political entity can solve it and this is an issue which needs to be addressed by the country and needs further research. She proposed proportional budgetary allocation according to need.
The Chairperson said that the Department was listening and that by the time the Bills are passed, the Committee would like to see budgets attached to the implementation of the Bill.
Ms Memani asked that Ms Philile Ntuli be allowed to conclude and say thank you on behalf of the ANCWL.
Ms Philile Ntuli thanked the Committee and in conclusion she emphasised the question of power in respect of the availability of budgets. When speaking of the structural impediments of addressing GBV, one is speaking to the question of power. The question of power is about the dominance of patriarchal mindsets, attitudes and power within institutions. The problem being tackled is a problem not only of the law, but of mindsets and the way in which norms are implemented. The law does not stand objectively, on its own, but is subject to implementation by others. Implementers of the law need to be considered, as well as how capacitated they are in working towards the ending of GBV.
The Children’s Institute (CI)
Prof Shanaaz Mathews, Director: Children’s Institute, began the presentation by announcing to the Committee that Ms Lucy Jamieson, Senior Researcher: Children’s Institute, would also be co-presenting.
The Children’s Institute (CI) is based in the Faculty of Health Sciences at the University of Cape Town (UCT). Prof Mathews is the Director at the CI and has 30 years of experience in children and women sectors and has led two national research drives for femicide in South Africa.
Research and a number of statistics formed the basis of the presentation. Firstly, that one in two women have experienced physical and sexual violence by sexual partners and 35-45% of children have experienced violence in the home.
These statistics tend to co-occur in the same home, with similar underlying causes. The intergenerational effects of domestic violence and the CI’s own work and experience informed the substance of its recommendations.
These were made based on its research and experience.
Definitions to include:
Corporal punishment should be included in the definition of domestic violence taking into account the link between corporal punishment and intimate partner violence.
The exposure of children to domestic violence needs to be taken into consideration when aiming to address the long-term effects of domestic violence. There is a need to be looking into therapeutic support and including other related persons who interact in the home as South African families are not always nuclear.
Stalking should not be deleted from the Act as research suggests that stalking increases the risk of femicide occurring and is an important form of intimate partner violence as well as a form of domestic violence.
Children in shelters
When children enter shelters, mothers remain the primary caregiver. The CI called for the removal of the perpetrator from the family home rather than the removal of children and mothers in terms of the Children’s Act. It called for harmonisation between the Acts.
Access to therapy
It called for therapy to be provided for both women and children when they enter shelters.
Seizure of dangerous weapons is welcomed by the CI.
When it comes to sentencing, harsher sentences do not act as a deterrent for domestic violence. Rather the call is for a functional justice system that successfully prosecutes cases and serves the needs of communities
Training of police officers and magistrates needs to be gender transformative and emphasise an intersectional and victim-centred approach.
Recommendations on the Criminal Law (Sexual Offences and Related Matters) Amendment Bill
Ms Jamieson said the right of children to be protected from violence includes an obligation to prevent violence against children.
Screening against the NRSO is not the best way to protect the child from violence
Effectiveness of the register has been monitored for years. The NRSO does not include everyone who poses a risk. There have only been 19 688 cases in total validated between 2009 and 2018/19 versus the 20 000 case per year
The NRSO is not comprehensive. Some crimes against children are held on the National Child Protection Register (NCPR) whilst others are on neither, e.g. a teacher who is only physically violent would be on the NCPR. It is cumbersome and confusing to have to have to check both registers.
The CI felt that requiring a criminal record check provides more security than a register.
The right to protection after abuse
The criminal justice system has an obligation to protect children from further harm, provide support and treatment if they have experienced violence in order to restore them to physical and psychological health.
Clear obligations should be set out in the CPA and the Sexual Offences Act to ensure that child victims and witnesses receive therapeutic services, counselling, court preparation and support, to protect children from secondary trauma and victimisation.
The Chairperson asked if there were any clarity seeking questions.
Mr R Dyantyi (ANC) thanked the presenters for a straightforward and clear presentation however he sought two points of clarity. Although laws can be introduced all the time, he felt that there are critical issues which the Committee must attend to, one of which was highlighted by the CI. This is the issue of a functional justice system. He asked what it has identified which has led it to conclude that the country has challenges with a functional justice system. He also asked what it proposes be done to improve the justice system.
The second area the CI highlighted for the Committee deals with capacity building and the training of police officers and magistrates. He pointed out that he is more interested in the training of magistrates personally, and therefore asked for further elaboration on the point. He asked what it has picked up which has indicated a weakness in the training such that further training is needed for magistrates. The Committee would like to consider these issues and its suggestions.
Dr W Newhoudt-Druchen (ANC) asked whether there should be something in the laws which details that perpetrators should be forced to leave the home. Secondly, she asked whether there were any recommendations that the abusers and perpetrators must receive counselling and therapy. There should be something in the law to this effect.
With gun violence on the increase, she suggested that there may be a need to add in the law that when the abuser comes before the court, there should be an investigation into whether that person has a gun or not and check if that gun is legal. This would be so that the first time the accused appears before the court, their gun is taken away. As lawmakers, they cannot pre-empt whether femicide is going to happen or not and since it is on the increase there is a need to be prevent this right from the start.
Dr Newhoudt-Druchen noted the recommendation that the register under SAPS and the register under the Department of Social Development be combined into one since SAPS has record of all the crimes. She asked whether this register should be held by SAPS or fall under the Department of Justice and Constitutional Development (DOJ&CD), since SAPS is known to be overburdened. The question then becomes, in this case who would be the custodian of the register. Recently, there was a case in Malmsbury, which she raised in relation to the language of children. She knew the CI would be aware that children, and especially disabled children, sometimes do not have the language capability to communicate what happened to them. This sometimes results in cases being thrown out. Where does it see the law being strengthened in this case to protect these children?
Ms Mofokeng said she was partly covered on the issue of the NRSO. She asked for clarity on Ms Jamieson’s mention of the Criminal Records Act. She did not think that children’s names would appear on the NRSO and felt that children should be protected. Another issue which was not raised is that although there is an over-emphasis of teachers, there is little mention of children that do sports and interact with coaches. She felt the Bob Hewitt case should be a lesson for South Africa. Drivers of children as well as other contexts where children are vulnerable should be considered as well. She thanked the CI for its presentation.
Children’s Institute Responses
In terms of children, according to a child abuse tracking study conducted a few years ago, Prof Mathews said that children are not always able to tell prosecutors enough so that cases are dealt with. Sometimes due to development capacity. Therefore, perpetrators get away with acts and this puts them in a position to be able to victimise and re-victimise children.
Ms Jamieson said that prosecutors and magistrates don’t always to have the capacity to listen to children. This is why reining is essential. It is not always that children cannot communicate, but that magistrates and prosecutors do not have the capacity to deal with them.
A study considered a while ago found that the law is not applied consistently and the justice system is not functional. In a case which involved a mother receiving payment for her child to sleep with a neighbour repeatedly over the course of months, the perpetrator was sentenced to community service and allowed to re-gain his gun licence within five years.
The CI said that it does not think that the NRSO or the Child Protection Register are adding any value and it believes that the best register to invest in, is the criminal records register.
The CI confirmed that it is suggesting that perpetrators be removed from the home.
The Congress of South African Trade Unions (COSATU)
Mr Matthew Parks, Deputy Parliamentary Coordinator, COSATU, began by acknowledging the pandemic of Gender-Based Violence against women, children and vulnerable persons. He said that COSATU supported the Bills. Philosophically, the Bills need bold, decisive and harsh interventions as in the past because presently they were erring on the side of the accused; therefore it is good that some elements might propose constitutional challenges.
Criminal Law (Sexual Offences and Related Matters) Amendment Bill
Mr Parks said that COSATU declared that it supports the tightening of incest provisions; extensive provisions; definitions of sexual intimidation and definitions of vulnerable persons; the NRSO and its inclusion of all sex offenders, the granting of public access, and the obligation on job applicants to declare prior offences and restrictions on the type of employment made available to offenders. It did however want more engagement on categories of restricted employment. It also supported the s18 requirement to report suspected offences committed against children and persons with mental disabilities.
It proposed amendments which extend the reporting obligation for sexual offences committed against women and vulnerable persons and protection for vulnerable persons afraid to report.
Criminal and Related Matters Amendment Bill
COSATU once again declared that it supported the appointment of court intermediaries for victims and the use of audio-visual links for court proceedings; the tightening of bail and parole and sentencing provisions.
It has observed time and time again, that magistrates sometimes do not heed these conditions, stating that they can use their discretion. It is concerned that both SAPS and the courts sometimes ignore such conditions and the victims pay the price. It asked that these parties play their role in enforcing the law.
Domestic Violence Amendment Bill:
Mr Parks stated that COSATU supported the tightening of protection orders; confiscation of weapons from suspects and obligations being placed on the Departments of Social Development & Health to provide support in terms of this Bill. However, he felt that engagements on the regulations need to take place between the departments in order for them to fully play the role they are meant to play. It felt that they ought to decide on what the regulations should yield in extremely practical steps as the departments have often treated victims with a lack of dignity and support.
It also supports the electronic serving of notices and electronic databases; empowering SAPS to arrest without warrants and to enter premises without warrants if they believe there is a cause to do so as the law should err on the side of protecting the victim. Lastly, it supports the sexual harassment provisions with qualification.
Mr Parks said that COSATU proposed an amendment that calls for the re-insertion of existing stalking provisions provided for in the Act. Stalking was defined under the Domestic Violence Act as follows: “repeatedly following, pursuing, or accosting the complainant.” It felt that it was better to re-enforce rather than inadvertently omit a useful provision.
Referring to s2(K) which states: ‘harassment' means directly or indirectly engaging in conduct that the respondent “knows or ought to know” and s2(R)(A) which states: unwelcome sexual attention from a person in a domestic relationship with the complainant “who knows or ought reasonably to know” that such attention is unwelcome; COSATU said that the concern of the phrases ‘knows or ought to know’ and ‘knows or ought reasonably to know’ may place a burden on the victim to prove that the perpetrator knew that their behaviour was wrong.
Adults should know the rights of citizens and the rule of the law and therefore there should be no requirement for the victim to prove that the perpetrator knew or ought to have known. It proposed the deletion of ‘the phrase ‘knows or ought to have known’ from s2(K) and ‘ought reasonably to know’ from section 2(R).
It recognised that the society we live in is one with a large prevalence of patriarchy, resulting in the need to sanction the abusive behaviour of men towards women. COSATU felt the emphasis should be on the impact of the perpetrator’s behaviour on the victim, regardless of whether the accused knew this behaviour to be wrong.
COSATU supports the three Bills but feels there is a need to strengthen them.
Speaking on the International Labour Organisation’s Convention 190 on Sexual Harassment at the workplace, it said that it feels that it needs to be tabled at Parliament as soon as possible, as it has already been approved.
Mr Parks thanked the Committee for the opportunity to present and expressed hope that their contribution was helpful.
Ms Mofokeng thanked COSATU for their presentation. She said that she was excited that COSATU was in support and asked if this meant that it would introduce education in work places. Another question she put forward was regarding parole and protection orders. Was it happy with the parole system and what did it think was lacking with the protection orders and how this could be improved.
Mr Dyantyi said that he wanted to address something that was not raised which had to do with the issue of patriarchy and civil society. He said that it is possible that all of these laws can exist yet these challenges continue to persist. Using the example of the Uyinene Mrwetyana case, where someone was arrested, charged, taken to court and convicted, only to find a similar situation of another woman murdered, less than a week later. He pointed out that the issue here is not the law. Since COSATU occupies a key space in civil society, he asked what it is that as lawmakers, they are missing and pointed out that COSATU had been very eloquently silent on this point.
Ms Yako reiterated the previous speaker’s comments in a different way. She said that the police do not apply their role as they are supposed to. She asked if COSATU is willing to put its bodies on the line to make sure that GBV is fought against.
Ms Maseko-Jele acknowledged the problem of magistrates not giving fitting decisions in cases of GBV. On the issue of the training of police, she said that with due respect, the police who turn away those who report GBV may be perpetrators themselves who have not yet been caught as she did not think it would make sense otherwise to take something like this and treat it so lightly. Going forward, she felt that the Committee would have to look carefully into the people who are assigned with such serious responsibilities. She said that she would like people to specialise in dealing with these cases and be identified so that they can be trained and so that it can be ensured that they are equipped with everything needed.
Lastly, she asked Mr Parks what his view is on the requirement of checking the NRSO by employers. Her understanding was, and she said that she was subject to correction, that it only places an obligation upon the employer and the employee to check the register and disclose, respectively. In a case where the employer ignores this and in the long run, something happens, and it is discovered that the employee has done something like this before what does COSATU recommend be done. She asked whether some sort of punishment be attached in that instance for the employer’s conduct.
The Chairperson thanked Members and felt that it was important to note that there is a magistrate who has been found to have given inappropriate sentences in matters to do with the abuse of children. Parliament has already supported the suspension of this magistrate pending a disciplinary hearing. This is a matter which he thought Mr Dyantyi would have raised from the Magistrate’s Commission, as it is a matter which the Committee takes very, very seriously.
Mr Parks said, in all honesty, the Bills will take some time to fund and implement. Members of COSATU are mothers and daughters and even the men experience the violence of GBV. It has been some time since having mass-educational campaigns as the country has been too dependent on the government. There needs to be a reclaiming by activists be it churches, mosques, schools or parents who go door-to-door educating people on their rights otherwise the law will remain hollow.
COSATU’s starting point is that laws should be as harsh and as draconian as possible. It has observed countless occasions where perpetrators were released on bail for a token amount and they go back to abuse the complainant again. If it was up to COSATU, it would remove the bail option entirely. However it accepts the provisions in the law as a reasonable compromise. It thinks the protection orders dealing with the violence; interests of the victim; the history of the accused and the confiscation of weapons and the requirements of consulting with victims for parole are useful. However its usefulness will depend on the Government implementing these laws.
To Mr Dyantyi, he said that he was 200% correct. Law and morality were present in the room, however, in other places, people may not know what on earth they were talking about. Although progressive laws are passed in Parliament, Government then takes a year, or sometimes two or three years to enact the law. COSATU says it has proposed a number of Bills which have been passed in Parliament that Government hasn’t even signed yet, such as the Public Investment Corporation Amendment Bill (PIC Bill), which dealt with corruption and unemployment insurance, amongst others. It took about two years for the paternity laws to be signed and sent to be implemented. This really undermines the work of Parliament, Members of Parliament (MPs) and the public. Even when government does approve implementation, it does not provide the resources or the training. It is a contradiction to say that complainants should be supported and then proceed to cut legal aid. There are other things which can be cut in government such as the salaries of Ministers by 25% and it can leave nuclear power stations alone rather than cutting legal aid.
It comes down to a change in culture. Mr Parks said that COSATU would like to see the example of China or Singapore where it deals very harshly with offenders. There is a former MP who was accused of raping his seven-year-old child and this was not the first report regarding this former MP, as there was an issue when he was an MP. The capacity of the state needs to be built in this regard and he was glad Mr Dyantyi kept him on his toes.
Ms Yako was right and all of them need to be willing to put their bodies on the line so to speak. COSATU and other federations had a National Day of Action recently at which addressing GBV was a key aim. However, more practical work is needed. The South African Democratic Teachers Union (SADTU) has taken the position that if teachers are accused of sexual abuse, it will not defend hearings where members are accused of sexual offences. Teaching is a calling and should not permit sexual abusers as teachers.
It cannot be the case that magistrates have flexibility to sentence those accused of rape. Sentences must be fixed. The courts need to play their part. Although SAPS needs to be addressed on its shortcomings, it must be said that SAPS workers are often over worked. This is further exacerbated by the fact that sometimes after arresting perpetrators, they are released, only for SAPS officials to re-arrest them within two weeks. He also noted that even women SAPS officials need to be trained in sensitively dealing with GBV cases.
In closing it said that the NRSO needs to be an accessible tool to all.
The South African Police Service (SAPS)
Domestic Violence Amendment Bill
Brigadier Magda van Rooyen stated that this Bill is going to be the main focus of SAPS’ concerns, with it offering some considerations about the other two Bills. SAPS is concerned about the ambit of some previsions in the Bill.
It is concerned about the ambit of domestic violence, considering the inclusion of terminology which it thinks is vague. This includes, ‘coercive behaviour,’ and ‘undue pressure’ and how it will be assessed. Further, the inclusion of ‘social isolation’ in the definition of ‘elder abuse,’ and what constitutes it.
It also questions the inclusion of related persons emphasising that it is concerned because of the extension of ‘sexual abuse’ beyond intimate partners. By this extension, people who are not in a domestic relationship will be included and SAPS feels this is an extension of the ambit of the act.
The definition of ‘sexual harassment as it stands currently requires that the complainant be offended. This requirement is an issue as harassment may take place without victims being aware and therefore cannot confirm being offended.
SAPS also took issue with the definition of ‘spiritual abuse’ saying that the fact that people have differing religious views should not be regulated by law as there is a danger that people may react over sensitively to what may not have been an insult.
Clause 3 (obligation to report)
The requirement to report incidents of domestic violence to a social worker or the police is one which requires knowledge of the Act’s ambit, namely, what constitutes domestic violence and who constitutes a complainant under the expanded definition. This may result in matters reported to SAPS that are not domestic violence or where the person involved, does not fall within the ambit of the definition of a complainant.
Since not every act of domestic violence constitutes an offence, the obligation will mean that matters must be reported to the Service even if it does not fall within the mandate of SAPS. It is unclear what the purpose of the obligation is when the incident does not constitute an offence.
Clause 4 (obligation to report)
Not all incidents of domestic violence constitute an offence. Domestic violence at its core is about power and control exerted by the perpetrator over a victim. This breaks down the self-esteem and self-confidence of a victim to the extent that the victim starts to believe that he or she is not of any worth and cannot take any decisions for themselves.
Family members, colleagues and friends in whom the victim has confided may face prosecution, which means that they will have to betray the trust of the victim and this will hamper the effective support structures provided to a victim. The victim may also protect the perpetrator once the matter is reported, for various reasons, possibly resulting in the victim feeling more isolated.
Clause 4 (arrest by peace officer)
The result is that both parties must be arrested in a case when physical force is placed against a perpetrator. Police will have no choice in this regard. SAPS lists a number of consequences, including that children will lose both parents as they are arrested and victims will have to endure the shame of arrest and may only be released after the weekend.
Clause 7 (consider application and interim protection order)
SAPS said that they are concerned about ss(6) and think proof is needed that the respondent knows about the existence of an interim protection order.
Clause 12 (warrant of arrest upon issuing of order)
Due to clause 4 of the Bill, the peace officer has no discretion as to whether to arrest someone reasonably suspected of committing an act of domestic violence. Section 8(5) of the Act gives police officers (since they are peace officers) discretionary power to arrest respondents for contravening a protection order. It is unclear whether the factors in section 8(5) must be considered before deciding to arrest the respondent.
Criminal Law (Sexual Offences and Related Matters) Amendment Bill
Section 12, dealing with incest, states that kissing is considered to be a sexual violation, meaning that greeting with a kiss would be an offence.
Clause 5 Amendment to section 40
Definitions need to be reconsidered.
The Chairperson commented that it sounded as if SAPS generally has a problem with the Bills and asked if this was so.
Brig van Rooyen said it was not and that generally SAPS is in support of the Bills and its presentation only focussed on the provisions it took issue with.
Mr W Horn (DA) said that there are one or two concerns that must be taken on a serious note by the Committee. He asked that the institutions presenting supplement their comments to suggest how the provisions should be amended in order to circumvent the dangers of their argument. Saying this he thought specifically of the compulsory arrest by the police officer of both parties in domestic violence situations and about the fact that the kiss of a mother, father, grandfather or grandmother would be considered incest. He did not fully understand the concern of the extension of the Domestic Violence Act in its inclusion of related persons. He said it seems that SAPS is not in favour of the extension to include those currently only covered by the Protection of Harassment Act. He wanted to make clear that one of the weaknesses of the domestic violence provisions has been the fact that they are limited to those in domestic relationships. He was not sure about the presentation not being in opposition because SAPS has generally not been supporting the struggle against GBV.
The Chairperson said that the Committee should support the provision of supplementary provisions as soon as possible.
Mr Swart said that he was grateful for the role of the police, however improvements can be made. He asked the Brigadier what can be done to improve implementation and the training of police officers. He asked how the Committee can assist, knowing the constraints which SAPS operates under; which have to do with training, sensitivity, caseloads, laboratories, backlogs and other challenges. The Committee would need to look at concerns raised to do with unintended consequences. Further engagements need to be held between the DOJ&CDs legal advisors and SAPS and these need to be held as soon as possible. Clearly, they have already engaged in the Cabinet process, before the Bill came before the Committee. He urged the parties to meet again to discuss it and to address final concerns.
Mr Swart noted that the Bill became known as the kissing Bill when initially drafted because of the inclusion of the clause dealing with it and the law would simply like to prevent unintended consequences around kissing. The law does provide for de minimus non curat lex—the law does not deal with trifles, but the Committee would like to avoid unintended consequences. He also asked SAPS to comment on the costing of implementation given the broadening of the ambit. This needs to be considered clearly because up until this point, GBV has not been fought successfully, which is perhaps why the definitions have been broadened. This is going to have an impact on the resources needed by SAPS and the detectives.
Lastly, he asked for comment on the relationship between law enforcement and the clusters in general. The Committee knows from the presentations received from the DOJ &CD that there are severe challenges with the court process specifically, with the backlogs although prosecutors are doing their best. However, in order to fight GBV more resources and a dramatically improved criminal justice system are needed. Given the financial constraints the country is under presently, these concerns need to be considered further.
Ms Mofokeng aligned herself with the supplementary submissions from the presenters on their concerns. She said that the Domestic Violence register has never been used and she asked whether SAPS is ready to implement what is coming in these new Bills. She had observed that SAPS fail communities as some cases were withdrawn because of instructions given by police, to the affected parties to speak to their families since the perpetrator would either be a father or uncle. Because of this, cases would then be withdrawn. She agreed with communities who argue that from now on GBV cases should not be permitted to be withdrawn.
Noting the challenges of budget, she felt her colleagues were right to suggest that further discussions around the training of police were needed. Additionally, training must be spoken of in tandem with discussions on budget when discussing implementing these GBV Bills. She asked for more to be done by the police as SAPS is the starting point in GBV cases. Although SAPS said it was happy to have social workers working with it, Ms Mofokeng rhetorically questioned how many social workers currently work with SAPS. The answer is that there are none, as here is no relationship between SAPS and social workers. She asked how the battle will be won when SAPS are not ready. She asked Brigadier van Rooyen how they can work together to prevent further failure by SAPS
Dr Newhoudt-Druchen said that as she read the presentation, she became a bit scared because the arguments are not victim centred. As it stands the victim must prove allegations very often. She proceeded to ask what SAPS think about isolation in particular regarding to elderly abused. She asked whether their isolation is enough to know that this is abuse. She noted that not all domestic violence is an offence and wanted to know what domestic violence is from the perspective of SAPS.
Dr Newhoudt-Druchen stated that she recently went to a Thuthuzela Care Centre (TCC) and she asked where the problems are. At the TCC there are resources for counselling and lawyers. She asked whether all SAPS officials know about TCC centres. Using the example of arrest by police officers she pointed out that there are instances where a child pushes an abuser to protect a victim, where for instance the victim is the mother. A SAPS official should use its discretion and act as a social worker to ascertain what has happened. In an instance where someone pushes back against an abuser, she did not understand why both parties would need to be locked up as this is too much trauma to the victim already.
Brig van Rooyen said that the definition of domestic relationship is already quite wide and already includes sex partners. It also includes parents of a child, irrespective of whether the parents are still together and a one-night stand, even when a person is no-longer in the life of a person. Related persons terminology is also in the Protection from Harassment Act and she felt that amendments to the Protection from Harassment Act should also be considered to address some of SAPS’ concerns in respect of relationships wider than domestic relationships. The Domestic Violence Amendment Bill should not be the only legislation to deal with all kinds of relationships. The Protection from Harassment Act would be a more appropriate Act to address these matters, as opposed to the Domestic Violence Amendment Act.
One of the provisions seriously supported is the involvement of other departments. This scourge in our society requires collaboration. When domestic violence is considered, the criminal justice system needs to be considered. The Department of Trade and Industry controls the regulations around alcohol consumption and this has a major impact on domestic violence. Targeting the problem needs to be addressed before there is a problem. This means that even in the homes of those on the platform, there is no differentiation in importance between boys and girls. She noted that bail sentences and strict sentences were very important and a good development. DNA regulations and attempts to ensure proper analysis of forensic evidence, especially in sexual offences cases.
Brig van Rooyen said that it is also important to state that GBV is a priority for SAPS. When considering the implications of GBV, it extends beyond a family and deals with violent crimes. This is a problem in society which SAPS prioritises. SAPS have also already appointed forensic social workers to assist child victims in particular. It has also strengthened the Family, Child Protection and Sexual Offences Unit (FCS Unit). The Police also now have sexual offences rooms, which means victims, are dealt with privately and are not accessible to the public. Here police can even assist with finding accommodation for the night. This is also to limit secondary traumatisation.
She said that she was sorry that Ms Mofokeng had this perspective but noted that SAPS is on duty 24/7 and the collaboration from other departments, which are not required to be on duty 24/7 would aid in assisting the SAPS. Responding to the earlier question about elderly isolation, Brig van Rooyen said that SAPS is not opposed to the idea of elder isolation, it simply wanted clarity on what this is. There is no offence in South African Law termed ‘domestic violence’. Domestic violence has two requirements. Firstly, there must be a domestic relationship, and secondly, there must be some sort of conduct. In terms of the law, if a person hits another person, the offence is assault, and not domestic violence. Certain kinds of domestic violence do not constitute an offence. For example: Someone who squanders their salary because they have a gambling problem, resulting in there not being any money for food for the family. This is not an offence, but it is domestic violence. This means a person can apply for a protection order.
For the past couple of months, there has been a heightened awareness of GBV in the media as part of educating people which is very important. In the example given by Dr Newhoudt-Druchen, where a child pushes away a perpetrator who is abusing their mother, according to the legislation, the child would have to be arrested. The pushing away of perpetrators is a problem because the legislation does not give peace officers discretion in arrest. Furthermore, legislation requires that people are taken to prison cells and not to safe houses.
Dr Newhoudt-Druchen noted this.
The Chairperson thanked SAPS for its response but noted his concern about the posture with which SAPS is addressing the issue of GBV. The Minister is part of the JCPS cluster and now the police are raising issues which should have been dealt with in those stages. He felt that there are strong indications of silo-mentality from the police. He asked whether the police’s concerns were considered when cabinet passed this Bill. The concerns raised indicate that serious disaster is imminent as all parties need to be on the same page. He was surprised that the Bills went through several bodies including SAPS, sub-committees and Cabinet yet they appear to have very divergent views. He felt that the leaders from both DOJ&CD and from SAPS should appear before the Committee so that it can get a sense of how these Bills will be implemented. There is no point in the Committee trying to push to meet the deadlines to pass Bills which are not going to be implemented because there are such divergent views. This indicates that the systems and processes of government have not been able to deal with this. He emphasised that this is something which the Committee needs to return to because he was very concerned.
Mr Dyantyi supported this suggestion and process. He agreed that the public hearings should be completed and this issue parked. He recalled that when the Department came before it, it asked them about its capacity to implement these Bills. He said that the Committee should highlight this issue when it next deliberates with the Department otherwise the work they are doing is just play.
Ms Maseko-Jele also supported everything said by the Chairperson and Mr Dyantyi.
Ms Mofokeng thanked the Chairperson for his summary, saying that she is was very disappointed. She agreed with her colleague’s views and went on to say that there was a Director General present in the submissions with Cabinet yet something like this has come up. The Committee has a responsibility to ensure that the Department appears before it again because what is coming out today is a disappointment to the three GBV Bills. She insisted that SAPS have both good men and bad men, but from the meeting it has seen that if this is not shaken up, there will be a regression contrary to its goals. The good police officers should work, however those who are not willing to co-operate are undermining Parliament and Cabinet.
Mr Swart said he understood and agreed with the work done by the Cabinet on the Bills which they have gone through, however, given its timelines, it is very important that the police and the DOJ&CD meet in order to discuss and alleviate differences as soon as possible. In the normal process of public hearings, as issues come up, the DOJ&CD will consider them and meet with other parties to try and alleviate them. On the implementation side, he agreed that this was a massive concern for the Committee as legislators.
The Chairperson said that he thought the Department was here and was listening and proceeded to invite the next speaker.
Centre for Child Law
Ms Zita Hansungule operates from the Faculty of Law at the University of Pretoria and has worked towards to the protection of children in various instances.
Ms Hansungule said that the Centre’s focus is mainly on proposed amendments to the Criminal Law (Sexual Offences and Related Matters) Amendment Bill.
Criminal Law (Sexual Offences and Related Matters) Amendment Bill)
On the NRSO, it felt that more resources need to be allocated to the running of the NRSO. Children who commit offences should be treated differently because, as the Constitutional Court has said, children are more likely to be rehabilitated. It feels that the NRSO is not being used to its potential.
Other serious offenders need to be excluded from working with children, including the example raised earlier of drunk drivers as school bus drivers.
Ms Hansungule submitted that the SAPS system contains information of any crime against any person rather than the NRSO. Using this system would ensure that the resources across departments are pooled in order to strengthen the system which has been working sufficiently for a number of years. Instead of reference in the Bill to the NRSO, it would refer to the SAPS register. She added that care workers and teachers also work with vulnerable groups.
The Centre for Child Law and Others v Media24 and Others  ZACC 46 was a case where the Constitutional court required that children’s names not automatically be placed on the register and that children be treated differently to adults.
Focus on the SAPS system would be a better use of resources and man-power. The Children’s Centre was of the view that SAPS system is currently functioning and that when an offence takes place, fingerprints are taken and details inputted.
Revealing of children’s identity was found to be unconstitutional and ordered the amendment of the Criminal Procedure Act in this regard.
Definition of ‘vulnerable persons’
The Centre found that the definition could be broader to include women, sex workers and LGBTQI+ people. The SAPS system already has this information.
Proposed amendments open the door to increase the amount of historical data that will have to be moved to the NRSO. This in turn has an effect on capacity and resources and could result in some people being placed on the register and others not. The amount of time and resources needed to place the information on the NRSO, update and sustain it could be extensive.
The Centre for Child Law felt that relying on the SAPS criminal records system would be better and would remove chances of claims of discrimination as some people may not be placed on the register. With regards to the duration of someone’s details remaining on the register, it took issue with the fact that the proposed amendment assumes that everyone and children in particular, would have the resources needed to ensure the removal of their names from the register.
Ms Mofokeng thanked the Centre for Child Law for their presentation as it flowed well from the other presentations.
Ms Maseko-Jele said that the concerns around children needing to remove themselves from the register and the rehabilitation of children is very helpful and needs to be considered more by the Committee.
The Chairperson thanked the Centre for its presentation and for drawing the Committee’s attention to the Constitutional Court judgment. He asked that members remain to discuss the way forward as this was the last presentation it would be receiving today. He called for a five-minute break whilst presenters left the platform and asked the Committee members to remain in order to discuss how it should proceed.
After the break, he thanked the secretariat for the manner in which she asked whether immediately after the hearing with the Deputy President, the Committee could deal with two or three submissions. He asked if they could start at 4pm after the hearings of the Deputy President and end around 6pm. He said that the following day they would need to push until 13:00. The Committee would be left with plus or minus 10 submissions which he suggested be distributed between Thursday and Friday. He also realised that the Department needs to be appraised of all of these submissions. He asked members whether they agree so.
Ms Maseko-Jele agreed and recalled that some members sent apologies for some days in the next week.
The Chairperson thanked her for that reminder and said the Committee should use the times where members are available to complete the work. He noted many members would not be available on the 30th and that there were a number of Departments that need to be consulted.
Mr Horn said that according to his understanding a meeting on Friday in the late afternoon would be difficult for Adv G Breytenbach (DA), who historically could not avail herself on Friday late afternoons for religious reasons. He suggested that the Committee meet briefly after the sitting on the next day.
The Chairperson noted this proposal and asked the Committee what it thought.
Ms Mofokeng agreed that the Committee should try and meet tomorrow after the joint sitting if the secretariat can make it work.
The Chairperson asked whether everyone was covered and asked the secretariat
In total there were 1 949 submissions and the majority are yes or no responses with very little substantive responsive. Substantive responses that were sent to the Committee amounted to about 51.
After the public hearings, the Committee will then wait for the Department to respond.
He asked that next week be treated lightly and asked Mr Dyantyi whether the next week should be converted to be a week for correctional services. Since the latter was not there and upon the realisation that DA Members would not be available in the week to come, he concluded by asking the secretariat to communicate the times it is meeting and with whom between today and Friday.
The Chairperson adjourned the meeting.