Gender-Based Violence Bills: public hearings day 2
21 October 2020
Chairperson: Mr G Magwanishe (ANC)
- International Womens forum submission
- Research ICT submission
- FOR SA submission
- Rape Crisis submission
- Sonke Gender Justice submission
- Media Statement: Committee on Justice and Correctional Services Continues with Public Hearings on GBV Bills
- CGE Presentation
- CGE Criminal and Related Matters Bill submission
- CGE Domestic Violence Amendment Bill submission
- SAIFAC Submissions
- Lisa Vetten Presentation
- Lisa Vetten Submission
- B16-2020 - Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill
- B17-2020 - Criminal and Related Matters Amendment Bill
- B20-2020 - Domestic Violence Amendment Bill
On the second day of the public hearings on the three gender-based violence (GBV) Bills – the Domestic Violence Amendment (DVA) Bill, the Criminal Related and Matters (CRM) Bill and the Criminal Law (Sexual Offences and Related Matters) Amendment Act Bill – the Committee was briefed by eight organisations. The organisations were the Freedom of Religion South Africa (FORSA), Research ICT Africa, Rape Crisis (RC), the South African Institute for Advanced Constitutional Law (SAIFAC), Lisa Vetten and others, Sonke Gender Justice, the International Women’s Forum of South Africa (IWFSA) and the Commission for Gender Equality (GCE).
There was disagreement between FORSA and SAIFAC on the inclusion of “spiritual abuse” in the DVA Bill. FORSA said that it opposed its inclusion on the basis that the behaviour in nature was already prohibited by a multitude of existing laws. As a result, its inclusion would only create confusion in the laws. SAIFAC, however, felt that the inclusion of the term would add to the protections afforded by the existing legislation. The organisation argued that spiritual abuse was different from other forms of abuse, and that this should be recognised. Members agreed with SAIFAC that spiritual abuse needed to be recognised as a different form of abuse in the legislation. They highlighted that this type of abuse was prevalent in religious settings, and all people needed to be protected from it.
All of the organisations called for the tightening of punitive measures in sections of the legislation, to ensure that individuals accused of committing GBV received harsher sentences. Many of the organisations also called for the tightening of bail conditions, to ensure that accused perpetrators were not able to pose further danger to their victims. Furthermore, they hoped that more training and education could be provided to law-enforcement officials, to ensure that they were equipped to deal adequately with GBV cases.
The Committee recognised that more needed to be done to ensure an increase in the number of cases finalised, and convictions. However, Members indicated that it was important to first improve the investigative process and the collection of evidence, to ensure that prosecutors had a strong docket to successfully prosecute accused perpetrators. They feared that if these steps were not taken, several victims would have to endure the difficulties of a sexual assault case, without gaining justice.
Members were informed by Research ICT Africa about the prevalence of online domestic violence, and indicated that they were ‘curious’ about this concept. They thought that some of the definitions found in the presentation were helpful. They requested the organisation to provide more statistical data on the issue, which would assist the Committee in establishing the prevalence of such abuse in the country. The organisation indicated that it and other organisations were currently collecting data on domestic violence as a whole. Once that process was complete, it would be willing to share the data with the Committee, as the information would also assist law-enforcement agencies in tackling the problem.
The Committee was pleased with the input received from all of the organisations. Members indicated that this would assist them during their deliberations on the three Bills. They assured the public that Parliament would continue to play a significant role in tackling GBV in the country. However, they commented that tackling GBV required the efforts of the whole of society.
FORSA submission on Domestic Violence Amendment Bill
Ms Daniela Ellerbeck, Parliamentary Advisor: Freedom of Religion South Africa (FORSA), briefed the Committee on FORSA’s submissions on the Domestic Violence Amendment (DVA) Bill [B20-2020].
She said the organisation took issue with the definition of coercive behaviour under clause 2 (C) in the Bill. It felt that the term “undue pressure” was problematic, as it was difficult to define. It recommended that the term be removed completely from the Bill. Another recommendation was that the phrase “regulating his or her everyday behaviour” under clause 2(d), be removed.
FORSA also took issue with the inclusion of the term “spiritual abuse” in clause 2(w), because the behaviour in question was already prohibited by a multitude of existing laws, such as the Intimidation Act and the Equality Act.
Mr W Horn (DA) said that the views included in the proposals submitted by the organisation could serve to undermine religious freedom. He asked them whether they had thought about the balancing of rights. There was broad agreement that GBV was a scourge within the country. He asked whether addressing GBV would justify the limitation of other rights.
He asked whether they had considered that religious practices had protected the dominant role of men over both women and children, and how religion had given them the authority to act coercively. Several of the perpetrators used God’s name to justify their actions. How would the Committee be able to balance practices that were not line with the Constitution, but formed part of religious practices?
Ms Y Yako (EFF) said she was disturbed that the ANC Women’s League had been able to present its submissions the previous day, while the EFF, which had made submissions to the Committee, had not been given the opportunity to present. She asked what the process for making submissions was. It was not fair that certain political parties were able to make presentations, while others were not able to.
The Chairperson said that when the Committee advertised the public hearings, they had mentioned that any individual or organisation that wanted to make an oral presentation should indicate this in their written submission. No one had been favoured during the process, and the Committee strived to fulfil the obligation of participatory democracy.
Ms Yako said that the EFF had indicated in its submission that it wanted to make oral presentations on the Bills, and it still did. It would welcome being given the opportunity to conduct its oral presentation.
The Chairperson asked Ms Yako to follow up with the Committee Secretary.
Mr S Swart (ADCP) said that it was important to look at whether the definition of spiritual abuse should be included into the legislation, as that type of abuse had already been covered in other legislation. He asked whether it would be informative for the public if it was inserted into the Bills.
He asked what role religious organisations could play in combating gender-based violence (GBV) as a whole. GBV was a societal issue and could not be solved only by the legislature. Civil society also had a significant role to play.
Mr R Dyantyi (ANC) said that he had two issues to raise. The first was on the definition of undue pressure. FORSA had proposed that the Committee do away with the definition, but they had not given an alternative. He asked what the organisation was asking the Committee to do. He was not convinced that the definition needed to be removed.
The second issue involved their request not to include spiritual abuse in the Bill. Various religious organisations had provided the Committee with recommendations on the protection of spiritual abuse. He commented that abuse could be financial, emotional, physical or spiritual. He asked what fear they had in including spiritual abuse in the Bill, and what harm the inclusion of the definition in the Bill would have.
He informed the Members that the Portfolio Committee on Youth, Women and People living with Disabilities, was present in the meeting.
The Chairperson thanked him for alerting the Committee about the presence of Members of this Committee. He indicated that the rules of Parliament allowed them to ask questions, as they too were Members of Parliament.
Ms W Newhoudt-Druchen (ANC) said that even though FORSA had mentioned that the current Bills had covered spiritual abuse, GBV did occur in churches. As she had studied at a Catholic school for the deaf, she was aware of many incidents that occurred. This form of abuse could be found anywhere. If spiritual abuse was not present in the Bill, how would it be enforced, as it did exist? She asked that they motivate why they did not want it included in the Bill.
Ms J Mofokeng (ANC) agreed with the previous Members, and said FORSA should motivate why they did not want the definition of spiritual abuse included in the Bill. The case of Mission KwaSizabantu was an example of spiritual abuse, and highlighted its importance. If it was not included, it would allow for people to use religion to justify wrongdoing.
She asked why FORSA had not advised or dealt with religious authorities who had been accused of abusive practices. There had been several accusations about bishops abusing Sunday School children.
Ms N Maseko-Jele (ANC) said she agreed that the issue of harmful practices found in churches should be addressed. Abuse remained abuse, whether or not it occurred in a church or a house. She highlighted that there was abuse that occurred when individuals were being initiated to become iSangoma. It was important that spiritual abuse was included in the Bill, to highlight this issue. She asked what their view was on how such abuse during the iSangoma initiation could be accounted for in the Bill, as this initiation occurred in a home setting.
The Chairperson said he hoped that the Department of Justice (DOJ) was listening so that when they next appeared before the Committee, they had applied their mind on some of the issues raised during the meeting.
Ms Ellerbeck said that undue pressure needed to be redefined, as the current definition was subjective. The new definition had to be objective. She would need to think about possible alternatives to the definition of undue pressure before she gave the Committee a recommendation.
On the inclusion of spiritual abuse in the Bills, she said that it could be limited only if it passed the Section 36 limitation test in the Bill of Rights. As there were existing laws that covered similar acts of abuse, it would not pass the Section 36 limitation test. The fact that one was a pastor did not change the meaning of the abuse. For example, if one was emotionally abused by one’s pastor or sexually abused by a spouse, it was still abuse. Naming abuse spiritual in nature because it had occurred in a religious setting would only lead to confusion. Referring to Pastor Tim Omotoso – who was standing on trial for rape – she mentioned that emotional abuse formed one of his charges. His case was an example of how using the term spiritual abuse would not make a difference.
She suggested that the Committee consider passing laws that would strengthen the legal landscape. Furthermore, what was needed was educating religious leaders like pastors and imam’s, and to ensure that these messages filtered down to the rest of society. The South African Police Service (SAPS) officials should also be better educated. She suggested that one law that covered all aspects should be implemented.
She said that the law of unintended consequences concerned her when thinking about the inclusion of spiritual abuse in the Bill. The Committee would not want a case where the term was included in the legislation, but certain consequences had not been accounted for.
Referring to the role that religious organisations could play in combating GBV, she said the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (CRLC) – which was a Chapter Nine institution – was ideally placed to address matters relating to GBV and to educate people on the legislation. FORSA had highlighted in its written submissions that it was pleased that third parties could not apply for protection orders on behalf of others.
Responding to the question on abuse taking place during the iSangoma initiation, she said that it was the CRL Commission’s duty to ensure that the initiates were educated on the potential dangers.
The Chairperson asked that Members to be concise when asking questions, to prevent exceeding the allocated time. Members would have the opportunity to debate these matters in the deliberations.
He requested that the organisation look at the case law on undue pressure, and include the definition in their submission.
Research ICT Africa submission on DVA Bill
Ms Chenai Chair, Researcher: Research ICT Africa, said the phenomenon of online domestic violence was a problem that lawmakers in the country needed to take note of. In a 2015 resolution on eliminating domestic violence, the UN Human Rights Council had recognised that the act of domestic violence included cyber-bullying and cyber-stalking.
She said the submission had four recommendations. These were:
- Ensuring that the Bill adopts a nuanced and evolving understanding of online domestic violence and domestic violence aided, facilitated or abetted by information communication technology (ICT).
- Reporting responsibilities in relation to directions.
- The need for data protection requirements in respect of the integrated electronic repository for domestic violence protection orders.
- To widen the definition of domestic violence in the Bill
The Chairperson suggested that the representatives from ICT Africa should read the draft Cyber-Crime Bill, as it covered many issues relating to cyber-crime.
Ms Chair indicated that the presentation did respond to the issue of cyber-crime.
Mr Dyantyi said that he was curious about the concept of online domestic violence, and he thought that some of the definitions found in the presentation were helpful. He asked how prevalent, statistically, online domestic violence was. If the organisation had further material to help the Committee to understand, he asked that they submit this to the Committee.
There had been emphasis in the presentation on the word “former,” and he said that the issue of domestic violence went beyond who one was involved with. He asked for clarification.
Ms Mofokeng said she appreciated the points on tech-assisted violence and online domestic violence. She said that online domestic violence had been a problem, and several individuals had committed suicide as a result. The Act should look at dealing with this problem.
Referring to the online report, she asked if it would be an advantage for women who did not have access to the internet, as the ICT would be able to register the matter on their behalf. She was pleased that instances of domestic violence could be registered by a third party. She mentioned that she subscribed to the Human Rights Council Resolution made in 2015.
Ms Newhoudt-Druchen referred to slide number nine, and asked if the statistics presented were for South Africa. As those who controlled the social media platforms were not based in SA, she asked how it was possible to regulate online domestic violence. In addition, did Research ICT Africa provide interventions to those social media controllers who were overseas?
She said that the pictures shown on the slides were good for children. Many parents were not aware of online bullying and its effects. She asked whether they provided any interventions in this regard, and if so, what the interventions were.
She asked what examples of the expanded definition on slide 11 were.
Mr Horn asked for clarity on the use of the term violence in relation to activities that occurred online and virtually. He recommended that the organisation should not try to muddy the waters on what constituted violence.
Research ICT Africa responded that digital divides came with a variety of complications. For instance, individual digital illiteracy served as a barrier for people who were not literate to access the online world. Research ICT Africa had looked at developing education campaigns to equip parents/caregivers and children with the necessary digital skills, as well as to equip parents with knowledge on cyber-bullying and the harms associated with it. Itwas pleased that several civil society organisations had already initiated such campaigns.
Digital literacy was a serious problem in SA. However, as the Independent Communications Authority of South Africa (ICASA) was allocating more and more spectrum and the Competition Commission was looking at lowering data prices, it was likely that more people would come online.
Dr Andrew Rens, Senior Research Fellow, Research ICT Africa, mentioned that it was not entirely possible to prevent abuse that occurred across countries. Draft 5b in the DVA Amendment could prevent online domestic violence to an extent. In some cases, service providers could prevent the issue from occurring. Research ICT Africa’s submission included definitions that could be added to the Bills in order to prevent issues of cyber-bullying and online domestic violence from getting worse in the future, as these were problems which were constantly developing.
Referring to the question on the online report, he said that it afforded people protection orders where they were possible, and also where it was possible, to order service providers to block content. There was a distinction between the Cyber-Crime Act and the DVA, which was that the former gave agency to individuals to protect themselves. As Research ICT Africa understood the act and its amendment, they were suggesting that their additional definitions could fit directly into the violence category -- for instance, the sharing of malicious images. He suggested that there could be sub-categories of violence as well in the legislation. However, their view was that the definitions should be included in the master categories in the Act.
Ms Chair apologised if she had caused confusion by using the words “former” and “present”. Both words had been used in context, and did not mean that that was what had occurred in the situations she had referred to in the presentation.
She commended the Committee for wanting to have all the information on online gender-based domestic violence. Reporting domestic violence in context was a difficult task, as the systems in place impacted on the evidence on online domestic violence and general violence.
Referring to slide nine, she said that the study quoted had been commissioned as a high-level urban study, which looked at the inductiveness of online GBV. In their research, they had recognised that the nuance in issues made it difficult for people to tick and indicate that they had experienced online GBV. The organisation would share the information with the Committee.
The collection of data on domestic violence was occurring, and this had provided an opportunity to have disaggregated data on what the extent of tech violence, for instance, was in the country. It would assist in illustrating factual data on the issue. ICT Africa would continue to work with other organisations to document the problems, and to provide solutions. Such data would assist law enforcement agencies in dealing with the various issues related to GBV.
The question they asked was how to ensure that online tech violence was included in the legislation.
The Chairperson said that all the submissions would be taken into account when the Committee deliberated on the Bills.
Rape Crisis submission on CRM Bill
Ms Jeanne Bodenstein, Advocacy Coordinator, Rape Crisis (RC), briefed the Committee on its submission on the Criminal and Related Matters (CRM) Bill.
She said RC submitted that increasing minimum sentences deterred crimes, including sexual offences. It recommended that more focus should be placed on what occurred before conviction, to ensure that the maximum number of sexual and gender-based violence and femicide (SGBVF) victims had access to justice.
In its submission, RC also highlighted that the number of cases finalised with a verdict had dropped from 7 372 in 2014/15, to 5 451 in 2019/20. In addition, the number of actual convictions during the same period had dropped from 5 084 to 4 098. RC was concerned by these statistics, as this indicated that fewer alleged perpetrators were being prosecuted.
RC called for the establishment of specialised forensic units which would deal specifically with SGBVF. In their opinion, this would lead to improved collection of evidence in SGBVF cases and better dockets for prosecutors.
The Chairperson said that the presentation would be used as part of the oversight. He explained that this public process was being conducted to ensure the strengthening of oversight of the effective implementation of the Bills by the law enforcement agencies.
Ms Mofokeng said that she had not heard what the organisation’s views were on parole. She asked for clarification of their view on the matter.
She agreed with them that specialised forensic investigative units needed to be established.
She asked whether RC was pleased with the rape kits currently available in police stations. In addition, did they believe that there could be any improvements to them?
Ms Maseko-Jele agreed that the presentation assisted the Committee with the challenge of implementing the Bill.
She asked if they had suggestions on methods that could be used to make it difficult for one to gain parole or bail.
Mr Horn agreed that this helped the Committee to understand how to deal better with sexual violence in the country. He asked if they agreed that the proposed legislative amendment of specialised forensic units should be considered in the Bills, and whether the setting up of these units was a policy process that should be elevated to the Minister of Police and the security cluster.
Mr Dyantyi said that preventative measures were important to stop sexual assault cases. The Committee had been surprised by the drop in the conviction rate of alleged sexual offenders. GBV could be curbed only through the efforts of society as a whole.
He said that the Committee had to be involved in defeating the GBV pandemic.
Ms Newhoudt-Druchen said that prosecutors who did not put GBV cases on the roll because there was no prospect of winning the case, denied victims the opportunity of having their day in court. She asked what should be done about that. She was concerned that this would allow perpetrators to continue their crimes because they were not punished. Furthermore, this could increase the number of the abusers and the abused.
She commended the work efforts of the Thutuzela Care Centres (TCCs), and said that there needed to be more of them. She recommended that if a victim reported a case, they should first go to a TCC, as they had the kits and could collect evidence. Officials from the National Prosecuting Authority (NPA) should also be present at the centres.
She asked whether there was a record of the number of people who took their case to court but decided later to withdraw it. In addition, if there was evidence in the withdrawn case, was it possible for the complainant to reinstitute the case and still be successful?
She asked whether audio visual court hearings were feasible.
Adv G Breytenbach (DA) said that generally prosecutors were sensitive to GBV, and if they did not place a case on the roll it was because there was no prospect of winning the case. Prosecutors did consider the feelings and emotions of everyone involved in the matter, particularly the complainants. GBV cases, particularly rape cases, were emotionally challenging for complainants as they had to discuss personal details and undergo a difficult cross-examination. It would not be right for a prosecutor to put a case on the roll simply to give the complainant her day in court, with the full knowledge that the case could not be won.
The Chairperson said there was a need to consider the value chain of how sexual violence cases were investigated, and why a prosecutor would decide not to prosecute a case.
Ms Bodenstein said that the organisation proposed the establishment of specialised forensic units to ensure that there were more cases that could be prosecuted. This would improve, for instance, the collection of evidence.
Rape Crisis had noted that victims who went to a TCC before going to the police had better outcomes. The problem was that there were not enough centres available around the country.
The DOJ had made a commitment to established specialised forensic units. She agreed with the Chairperson that when considering why sexual violence cases were not prosecuted by prosecutors, one had to look at the entire value chain of the criminal justice system. She cautioned that the citizens of the country should not be lulled into a false sense of safety because of the government’s pronouncements that there were stricter sentences and laws that dealt with GBV, particularly as this did not add up to the reality.
At a policy level, lawmakers had to be creative about how to establish the forensic units, to ensure that all survivors had access. The role of the Committee was to ensure that the various role players were held accountable. This should include monitoring the performance targets of the prosecutors. It was important that the Committee considered how it would exercise its oversight ability in this matter.
Referring to the question of withdrawn cases, she said that often the complainant was the only witness for the state and as a result, the prospect of pursuing the case was no longer there.
Ms Sanja Bornman, Managing Attorney: Gender Equity Programme, Lawyers for Human Rights, said that when it came to parole and bail, as provided in the draft Bill, the organisation did not take issue with the provisions that would make it difficult for alleged perpetrators of GBV to gain parole and bail. Having stricter provisions was appropriate and suitable. They were concerned with issues such as strengthening the investigative process, the building of a strong docket and the successful prosecution of the matter.
RC had found that there were not enough rape kits available at police stations. Another issue was the chain of evidence, such as what happened to the children, how they were transported, whether they had arrived where they needed to be, and how long it took to process each kit. They believed that this affected prosecutions.
SAIFAC submissions on the three Bills
Dr Mispa Roux, Deputy Director, South African Institute for Advanced Constitutional Law (SAIFAC), and Ms Ropafadzo Maphosa, Researcher at SAIFAC, briefed the Committee on its submissions on the three Bills.
They stated that SAIFAC supported the inclusion of spiritual abuse in the DVA Bill. However, it did not support the suggestion to remove stalking from the DVA.
It welcomed the fact that the public now had the ability to report instances of domestic violence, but felt that this might reinforce societal views on the issue, as SAPS officers were not well equipped to deal with such matters.
SAIFAC also welcomed that the disciplinary action could be taken against police officers who had not followed their duties when handling a domestic violence case, but they were concerned about the implementation of the action. As it would be SAPS officials who would be in charge of disciplining their own officials, SAIFAC recommended that another oversight body should monitor the disciplinary proceedings.
They suggested that women be included as vulnerable persons in the National Register for Sex Offenders (NRSO), as this covered only children and people with mental disabilities.
Ms Maseko-Jele said that people within the communities reporting acts of GBV could be faced with threats from the alleged perpetrators. There had been allegations made to the Committee that once people reported criminal activities occurring in their community, that information was leaked. The person who had been reported then became a threat to the individual who had reported them. She asked for their view on public reporting.
In their presentation, the organisation had indicated that they were against the information on the sex offenders register being published. She asked whether the organisation had considered the rights of the victim and those of the perpetrator in coming to this conclusion. Had they not seen publishing the information as a deterrent for others to commit acts of GBV?
Ms Mofokeng thanked them for supporting the inclusion of spiritual abuse in the Bills.
The Committee had been informed that it had been difficult to implement disciplinary proceedings against SAPS officers who had not performed their duties. She asked why the organisation had suggested in its submission that the Commission for Gender Equality (CGE) and not the Independent Police Investigative Directorate (IPID) should provide oversight over this matter.
Dr Roux said that publishing the information on the NSRO could prevent victims of domestic violence from reporting cases of abuse, out of fear that the information would not be confidential. Very often, victims did not want it to be known that they were victims. While she was pleased that third parties could report instances of domestic violence, she was concerned that in doing so, they put themselves in danger. The legislature should be aware of the issues at hand.
She clarified that the organisation had not suggested that the CGE should take charge of the disciplinary proceedings against the police officers, but rather that they should play an oversight role to ensure that disciplinary action was taking place in line with the legislation, and also that reporting took place.
Ms Maphosa said that in their submissions, the organisation had also included a Section 36 limitation exercise, balancing the rights of victims and perpetrators. They had acknowledged that they had to protect victims, but they had found that the extent of the limit was unjustifiable, as it limited the rights of perpetrators. This did not mean that the rights of perpetrators were more important than those of the victims, but they had to consider to what extent such a limitation would be enforced. The register, as proposed in its current form, sought to protect children and people with mental disabilities. This was already done by the National Register for Sex Offenders (NRSO). If the provision were to be brought forward, it would be constitutionally challenged.
The organisation had considered the deterrent value of publishing the register, but research from other jurisdictions which had published such information indicated that there was neither a rehabilitating nor a deterrent effect.
Lisa Vetten and others: joint submission on DVA
Ms Lisa Vetten, Research Consultant, University of Johannesburg, briefed the Committee on her joint submission on the DVA. She clarified that it was not an individual submission. They had looked specifically at complainants’ rights to dignity and equality, and to the extent that the proposed amendments upheld these rights. They had focused on the new sections 2 (a)(b), the existing section 18 and the new section 18 (b). Some of the provisions denied the complainants control over their lives and the decisions that affected them, while at the same time there were provisions that did affirm and empower the decision-making of complainants.
There had been a conflation of the mental and physical disabilities that existed between people. Disabilities ranged from mild, to moderate, to severe. People with mild to moderate physical disabilities should also be provided protection.
Referring to adult reporting, she felt that this would affect women primarily, because they were overwhelmingly the victims of domestic violence. The legislation could also allow for other people to override the decisions of women, and this would amount to a form of public paternalism. It should be the decision of the victim to decide whether they should report domestic violence or not. They were suggesting that instead, women should be provided with better support mechanisms so that the relevant practitioners could gain an understanding of why the women had refused to report that they had suffered domestic abuse.
The organisation supported instances where an adult victim consented to a third-party reporting that the victim had suffered domestic abuse.
Mr Horn said that the overwhelming victims of domestic and sexual violence were female. In light of this, he asked if their negative stance on gender-neutral legislation should be adopted.
He noted a contradiction in their view on mandatory reporting in the presentation. In certain domestic violence cases, the very element of intimidating, threatening and harassing female victims was of such a nature to silence them. Not supporting mandatory reporting for those who were on the periphery of the lives of these people could perpetuate the abuse in the relationships. Yet the organisation did not support reporting, as it believed that it took away the authority of these victims over their own lives. That seemed to be a contradiction.
Further, on mandatory reporting, concepts such as ‘Ubuntu’ that were found in customary law placed a responsibility on those who saw violence to come forward and report it. He asked whether this moral responsibility should be codified. He did not understand the rationale behind their argument on this issue.
Ms Maseko-Jele asked for their view on the withdrawal of cases by female complainants.
Mandatory reporting would benefit only certain groups of women, as some women were in disadvantaged positions, while others were not. As a result, there was no one answer to the problem.
Referring to the confidentiality of individuals, she asked whether they had considered the rights of the children who experienced domestic violence in their homes. In addition, what was their view on what could be done to assist those children?
As many women had low self-esteem and had a fear of speaking out, she asked what they thought could be done to assist them.
Ms Newhoudt-Druchen said she would like clarity on what they were referring to when they spoke about people with disabilities. She did not want the law to limit people with mental disabilities. She was pleased with the term ‘vulnerable groups,’ as it covered all people who were vulnerable to an abuser. The abuse of children who were deaf was prevalent, as the perpetrators knew that they were unable to express themselves without an interpreter.
Ms Mofokeng said that the Committee had noted their recommendation on adult mandatory reporting, and it would look further into this matter.
Most of the women who were abused found themselves without resources. She asked if the state would bear the cost of taking care of these women. New Zealand had just passed legislation that would grant victims of domestic violence ten days’ paid leave as they moved out of the household. This was in contrast to SA, where victims were encouraged to move out. This was a problem, as the abuser usually had the financial resources, not the victim.
Ms Vetten, referring to the gender-neutral legislation, said it was correct that both men and women could be abused, but GBV proportionally affected women more than men, and that, in part, had to do with how the law had been structured. It was wrong to take away from an adult person the right to have autonomy over their lives, whether it was a woman or a man. She was concerned that it would disproportionately affect women and reinforce gender hierarchies.
She did not believe that mandatory reporting was a good form of intervention. Other interventions in domestic violence cases should be considered. For instance, health workers who had had to deal repeatedly with the same patient because of recurring abuse should be able to ask personal details, such as what was happening in their lives at home. Once they had established that the abuse was recurring, they could then provide a referral for the victim to be assisted. The nature of interventions needed to be thought through.
An obligation to report on children already existed, so children with disabilities would be included, as well as older persons.
Responding to the question on adult mandatory reporting, she said that her submission had included suggestions on how men and women could be given support to leave a relationship, or be provided with other mechanisms to protect themselves within a relationship. Women who were not provided with the right support needed, tended to be withdrawn. There would be no point in making reporting mandatory if support was not provided.
The case of New Zealand could be seen as an option. Another option was for the Committee to encourage the Department of Human Settlements (DHS) to implement its social housing needs policy, as the policy paid attention to fast-tracking the process of placing victims of domestic violence in housing. It would be helpful to ensure that the policy was implemented, as it had been dormant since 2015. In addition, the Committee should look at considering other support mechanisms for women in abusive relationships, as this would empower their decisions.
She encouraged the Committee to think about strengthening the provisions of the DVA, rather than taking the decision of mandating women to report.
Clarifying their points on people with mental disabilities, she said that it was a problem that people with disabilities were all treated in the same way and people did not recognise that there were differences in the range and severity of mental disabilities which would have implications for the kind of support provided. There was inadequate protection for people with severe to profound disabilities and for those who had multiple disabilities. Some of the legislation that dealt with health looked at this, but there was no duty to report or think about how those people might not be in a position to report. There needed to be greater emphasis on looking at this problem.
While the Children’s Act covered children with disabilities, when the children became adults these protections fell away. There needed to be thought put into this. It had been assumed that individuals with physical disabilities also had diminished intellectual capabilities, which she found to be insulting. New ideas on how to provide care to people with disabilities, noting the differences, were required.
Dealing with domestic violence was not only the responsibility of the police. The question was how social development and health services could be used to assist women who found themselves in these positions.
Ms Vetten said that the Act covered risk assessment, but the notion of it must be developed through directives and instructions that would be located by people who worked in counselling services, as they were in a better position to assess risk. The question was how to integrate a system where the police, the courts and safety shelters were put together. In other cases, around the world, there were multi-agency risk assessments that looked at this integrated system of protection.
Continuing her point on risk assessments, she proposed that in their six-monthly reports, the police should indicate the number of women who were abused or killed whilst being in possession of protection orders. That would assist with understanding the risk -- who was at risk, and what measures needed to be added for that category of women. This would allow for an expanded system of protection for victims of domestic abuse.
Sonke Gender Justice submissions
Ms Kayan Leung, Manager: Policy, Development and Advocacy Unit, Sonke Gender Justice, said that as the National Register for Sex Offenders (NSRO) had been poorly managed since its inception, Sonke proposed that proper maintenance needed to be implemented to ensure its effectiveness. In addition, they proposed that the full name, surname, identity number, and the sexual offence of very person whose particulars had been included in the register, be available on the website of the Department of Justice and Constitutional Development (DJCD).
In its submissions, Sonke indicated that it did not support the proposed amendments to Section 59(1) seeking to require the accused to remain in custody until trial, unless the accused could show evidence that satisfied the court that it would not be in the interests of justice to detain the accused further. They argued that this went against the Constitution, as this amounted to an unreasonable limitation of the accused’s right to be released on bail. They were also concerned that such a measure would worsen overcrowding in jails, which would not create a space where the accused could rehabilitate.
Mr Horn asked whether there should be a blanket prohibition on affording bail in GBV cases, and whether this would be in line with the Constitution. He cautioned that the Committee should not be dissuaded by the argument of overcrowding in jails when it considered the provisions in the Bills, as the process should be focused on correctional justice.
There were several instances where accused individuals who were released on bail were then rearrested for serious crimes. He wondered if this went against their argument of tougher bail conditions not being effective.
In the case where bail protocols were tightened, he asked whether one should not consider whether the individual had a criminal record, or had been charged/arrested for a GBV-related crime.
Ms Mofokeng asked what they thought of instances where a condom was removed during intercourse. She expressed concern that this posed a risk to the woman in that situation.
Ms Maseko-Jele thanked them for their presentation.
Sonke Gender Justice’s response
Ms Leung said that the organisation supported the NPA opposing bail in cases where the accused had previous criminal records relating to GBV. Their support was based on the fact that there was a history of violence. The accused would have to prove that in the interests of justice, they should be provided bail.
Section 35 provided that one was innocent until proven guilty, and Section 31 (f) stated that an individual had the right to bail. She conceded that they could not rely on the challenge of overcrowding in jails as an argument against a blanket prohibition in affording bail in GBV cases. As the organisation was looking at ways to develop a society that was violence free, it believed that it was crucial to look at the issue with a multi-pronged holistic approach. With overcrowding, there was an increase of violent behaviour. The organisation recommended that bail should be considered within the existing constitutional framework. All relevant stakeholders needed to look for methods to include facilities that provided rehabilitation to perpetrators in the long run. The criminal justice system should not be geared only to incarcerate them.
She explained that “stealthing” was a form of sexual assault where there was an attempt to deliberately remove the condom. This
was easier to regulate, whereas it far more difficult to regulate cases where the condom was worn but slipped off during sexual intercourse.
The Chairperson thanked the organisation for the presentation and said that it would assist in the Committee’s deliberations.
The meeting was adjourned until 18h00.
IWFSA submission on the three GBV Bills
Ms Nicqui Galaktiou, Director and Founder, NGInc law firm, briefed the Committee on the International Women’s Forum of South Africa’s (IWFSA’s) submission on the three GBV Bills.
On the Criminal Law (Sexual Offences) Bill, it welcomed the recommendation that any person who had committed a sexual offence be included in the NSOR. Section 42 (3) of the Act stated that the registrar must make the full names, surname, identity number and sexual offence of any individual on the NSOR available to be published on the website of the DOJCD. IWFSA proposed that this should include the conviction, and the date of the conviction. It also proposed that section 44 should qualify that the information would not be open to the public, but only to the persons identified in Section 44 a (2)(b), as IWFSA was concerned that this could endanger the lives of the perpetrators.
The definition of stalking had been removed from the Bill. IWFSA supported the retention of the definition in the Bill. The words “a pattern of” and “repeatedly” had been deleted in the definition of harassment. IWFSA believed that they had to draw a balance between harmful, repetitive conduct and a once-off incident. IWFSA did not have a proposal on the matter, it only highlighted the issue. More clarity was needed on the punishment of a once-off incident of harassment and repetitive harassment.
Mr Horn said that he had three issues.
Firstly, he asked that the forum provide the Committee with a proposal on the proposed amendments to the definition around harassment, and whether a once-off incident should be classified as an offence. He agreed with them that harassment, in certain circumstances, could take place in a once-off incident, but one should be very careful not to make an offence out of something that should not be one.
Secondly, he agreed that the term “an obligation to report” could lead to abuse. He asked that they provide a proposal as well. It would assist the Committee in considering the matter.
Thirdly, he asked them to elaborate on the criticism of the discretion of SAPS officers who decide not to arrest when there is a breach of protection orders. He suggested that not providing the officers with discretion might also lead to an abuse of the system, such as people filing false complaints. The Committee was mindful of incidents where SAPS members inappropriately used their discretion in GBV matters, and had acted as quasi-mediators instead of acting as law enforcement officials. These acts went against the prescriptions made by the domestic violence legislation.
Ms Maseko-Jele asked for their view on shelter and housing. There had been several incidents where victims who had been offered a home, but after spending time in a shelter, they had not taken up the offer. She asked if the CGE would look into the matter.
Ms Mofokeng suggest that if the national register of sexual offences was not made public, then complaints could arise that it may have been manipulated, or that registered offenders could not be found.
Secondly, on the disciplinary action against of SAPS members who did not fulfil their mandate, she asked who should provide oversight on that matter.
Ms Galaktiou said that she did not have responses to Mr Horn’s questions. IWFSA had considered the questions, but still had no answers. With harassment, one had to consider whether it was a pattern or a once-off incident. There were examples where a once-off incident was enough to put the person’s life in danger. To remove the definition of harassment from the Bill would be the preferred option. IWFSA could not provide a concrete answer on what the new wording would be for the definition.
At face value, one should provide police officers with full discretion. However, the difficulty lay with police officers who were not using their discretion correctly. As a result, she had ‘erred’ on the side of caution, and had suggested that the police should not have discretion.
Ms Mofokeng asked what should occur to magistrates who made mistakes when issuing protection orders. In certain instances, an arrest warrant was not accompanied with the order.
Ms Galaktiou said that the previous day, the Chairperson had indicated that a magistrate was being disciplined for not providing a protection order when required to do so. She said that there was no easy answer to that question. She suggested that each issue should be looked at individually.
The Chairperson clarified that he had said there was a magistrate who had given inappropriate sentences in sexual offence cases, and the Magistrates Commission had instituted disciplinary actions against the magistrate. As required by law, Parliament had agreed to her suspension. He explained it was the duty of Parliament to rectify the removal of a magistrate if it had been recommended by the Magistrates Commission.
Ms Galaktiou asked that Ms Mofokeng clarify her question.
Ms Mofokeng said that it was important to note that magistrates and police officers did make mistakes when dealing with cases, including GBV cases. She asked what should be done to educate victims on what to do if they were provided a protection order, but had not been told what steps to take afterwards. She had heard of a case where an individual had been provided a protection order, and no arrest warrant had been issued. Afterwards, the victim had been harmed again by the perpetrator.
Ms Galaktiou said the process of protection orders was poor, as several magistrates were lacking in knowledge of the practical process and in some instances, the magistrates were not even present in the court. She believed that education and training were required to improve the process. If no warrant was issued by a magistrate, it was either negligence or because they had lacked the knowledge. Police officers also required more education on handling the process.
The Chairperson asked that all the slides be emailed to the Committee, as Ms Newhoudt-Druchen could not engage without them.
Ms Galaktiou said she would do so.
The Chairperson reminded her of the question of who she thought should have an oversight role over policemen who did not implement the domestic violence legislation.
Ms Galaktiou said that the relevant authorities should provide oversight over the discipline of SAPS officers.
The Chairperson reminded her of Ms Mofokeng’s question on temporary shelters.
Ms Galaktiou said that IWFSA had proposed that victims should not be removed from their residences, and that only the perpetrators should be removed. The current rules indicated that the complainant should move out of the home. Where there was violence and threatening action from the abuser, the victim should be moved to a shelter. The IWFSA was not stating that permanent housing should be provided, only that temporary housing should be provided to victims of abuse. The issue of the primary residence would have to be addressed if the couple decided to separate.
The Chairperson said that the Committee would await further submissions from the organisation.
Ms Charmaine Houvet, Senior Public Policy Director of Africa, Cisco Systems, & Commissioner at Presidential 4IR Commission, thanked the Committee for allowing them to present. Close to 100 members had provided input into the submissions. They had anticipated all the questions from the Committee, and were pleased that the Members had paid attention to the input made by the organisation.
CGE’s submissions on the three Bills
Ms Tamara Mathebula, Chairperson, Commission for Gender Equality (CGE), said the CGE had concerns about whether some of the provisions in the CRM Bill would assist in achieving its intended objectives, specifically with regard to the sentencing of perpetrators. The CGE was concerned that in the long-term, this might over-burden the country’s correctional services’ facilities.
The CGE was pleased with the introduction of the centralised recording of all protection order applications, and other orders in the DVA.
The CGE raised its concerns about the proposal to expand the NSRO further, as it had not been managed appropriately in the past. As an alternative, the CGE recommended that the South African Police Clearance Certificate (PCC) system be used, as it was more functional than the register.
Mr Horn addressed the support by the CGE for recommendations of no bail. Given that they were one of the Chapter 9 human rights bodies, he hoped that before supporting the no bail proposal they would have considered whether the rights afforded to people to a fair trial and presumption of innocence would not be undermined by the legislative framework. He asked that they comment on this matter.
He took note of their opposition against the mandatory obligation to report. He asked them to explain their reasoning for their opposition.
Ms Mofokeng mentioned that much had been said about other forms of abuse, except economic abuse. It was a serious problem, as wealthy and abusive husbands used their economic advantage against their wives.
She asked if they agreed with the idea that the police required officers who were equipped to deal with matters of GBV.
Referring to centralised orders, she asked why the CGE had supported centralised orders. Had it supported this proposal to ensure that law enforcement officials were aware of serial abusers’ criminal history?
Ms Mathebula agreed with Ms Mofokeng that attention needed to be paid to economically empowering women who, in most instances, were the victims of sexual abuse and GBV. The CGE had looked at how it could assist with relocating perpetrators from their homes into shelters which provided support mechanisms for rehabilitating them. This would allow for the victims and their children to remain in the home.
During the lockdown period, two centres had been built in Gauteng. These centres not only provided shelter for perpetrators, but also provided interventions such as counselling. These men came to the centres out of their own will. The CGE was also looking at ways to ensure that women were empowered and self-reliant, as these were some of the drivers of women remaining in abusive relationships. There should be a collaborative effort by government and civil society institutions.
The CGE had engaged with the SAPS, particularly the nine commissioners in all of the provinces. Both had discussed what needed to be taught to police trainees, to ensure that the police who emerged from the academy had specialised training on the various aspects of GBV, and also to ensure that each police station had individuals who were equipped with the correct training.
GBV was the second pandemic, and both financial and human resources were required to deal with the scourge.
Mr Dennis Matotoka, Legal Researcher, CGE, said that the CGE agreed with Section 35 of the Constitution, which states that an individual was innocent until proven guilty. It also believed that accusations of crime must be proven beyond a measurable doubt. Stricter measures were required before bail was granted by the courts, as granting bail too easily created the impression in the community that the system was failing, and people then resorted to taking matters into their own hands.
The CGE also felt that too much reliance was placed on the versions provided by the investigative officers (IOs). In certain cases, before the courts, the CGE had observed that IOs had not verified the addresses of the perpetrators. Furthermore, the IOs had not ascertained whether the perpetrators had been previously released on bail for another case, which placed the victim in danger. It recommended that discretion should not be given to IOs.
Ms Mofokeng said that the question was on why they had recommended centralised orders.
Mr Matotoka said that it was important to have a centralised system in the country so that if, for instance, an accused was standing in a court in the North West province, there could be records of the orders that had been issued by the court. With the lack of a centralised system, they had found that physical files were missing, so they could not link the accused to other crimes in other regions. Information stored on a centralised system was easily accessible, and ensured that justice was implemented.
The Chairperson asked who would be presenting the following day.
The Committee Secretary advised the Committee that the MOSAIC organisation and the South African Bishops Conference would present the following day.
The meeting was adjourned.