Gender-Based Violence Bills: public hearings day 4
23 October 2020
Chairperson: Mr G Mangwanishe (ANC)
- Wise 4 Afrika presentation
- Wise 4 Afrika submission
- Embrace Project submission
- Teddy Bear Clinic for Abused Children submission
- Professor Ann Skelton presentation
- Women’s Legal Centre submission
- EFF submission
- EFF presentation
- Voice it in action submission
- Voice it in action presentation
- SA Women in Dialogue submission
- SA Women in Dialogue presentation
- 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
In this virtual meeting, the Committee heard public input from the EFF, the Embrace Project, Wize4Afrika, the Teddy Bear Foundation (TBF), Voice it in Action (VIIA), the Women’s Legal Centre (WLC) and Professor Ann Skelton on the Gender-Based Violence Bills.
The EFF largely agreed with the Bills, but proposed making it so that offenders could only be removed from the sex offenders’ register by a court. It suggested expanding the list of sexual offences to include ukuthwala (forced marriage) and ukungenwa (marriage “inheritance”), as well as refusal to pay sex workers. The EFF argued that bail should not be considered for perpetrators of GBV. Members’ input focused on this final issue as well as the EFF’s submission on parole, with members fearing that the non-consideration of bail would be against the Constitution.
The Embrace Project was overall in favour of the bill, but proposed amendments including better consideration of cybercrimes, better sensitisation training and monitoring, harsher legal penalties for GBV and more rehabilitation programmes for convicts. It agreed with proposals to make the National Register of Sex Offenders (NRSO) public.
Wize4Afrika’s submission stressed training, implementation and consequence management, highlighting the importance of proper funding and capacitation of agencies tasked with implementing the Bills. Wize4Afrika noted frequent issues with the agencies tasked with dealing with GBV, including police incompetence or hostility, and prosecutorial weaknesses, combined with bias in the judiciary. It accepted that bail was a constitutional right but argued that the state should systematically oppose bail for GBV accused. It proposed making the NRSO public.
TBF argued that violence against women and violence against children were intimately linked. TBF stressed that training for first responders, as well as adequate support for these front-line workers, was essential. TBF recommended the inclusion of ukuthwala and virginity testing in the list of offences. It also noted that making the NRSO public would require a lot of work and a significant amount of resources, and stated its reservations over possible victimisation and vigilante justice in its aftermath.
VIIA welcomed the Bills but saw them as not delivering a sufficiently urgent solution. It thus proposed declaring GBV a State of Disaster and using a similar approach to the one government had used during Covid-19. It proposed that economic interventions and public education were key to defeating GBV.
The WLC raised the issue of the extremely low conviction rate for GBV cases and the high proportion of cases which fell away, proposing that the NPA was not fulfilling its duties correctly. It generally agreed with the Bills, arguing for a more consistent approach to bail hearings. The WLC supported the expansion of the NRSO, but noted that its legal purpose was for employment, and as such could not be made public without significant legal changes. It noted its concern over mandatory reporting requirements for cases of adult victims of domestic violence, clarifying that evidence seemed to indicate this ended up being counter-productive and bad for the victim.
Prof Ann Skelton also mostly agreed with the Bill, but had a number of issues with the NRSO. Firstly, she proposed that the NRSO was a far less complete and useful tool than SAPS’ Criminal Record System, which was automatically populated. She proposed amending the Bills to this effect. Secondly, she stated some serious reservations over both the legality and desirability of making the register public: this was most likely unconstitutional and against the provision of the Sexual Offences Act as it stood. She argued that making the register public would require multiple legislative changes and a substantial body of evidence from the Department regarding the purpose of making it public. Issues of vigilante justice and harassment of victims were also raised.
The Committee noted the need to identify issues in the Bills which may be subject to constitutional challenge, for instance the proposal around bail and the public availability of the NRSO. They further noted that concerns about implementation and budgeting must be taken seriously.
The Committee referred the report on the remuneration of the Deputy Public Protector to the Parliamentary Legal Advisers for advice.
The Chairperson opened the meeting, clarifying time limits to presenters. He ceded to the EFF for its submission.
Ms Poppy Mailola, Deputy Secretary General of the EFF, introduced the presentation, highlighting the importance of the Criminal Law (Sexual Offences and Related Matter) Amendment Act Amendment Bill. The EFF noted that the scourge of violence against women, children, LGBTQI people, the disabled and elderly people was out of control. The vicious circle of triple oppression based on race, class and gender had not been broken for black women in particular. Black women suffered the most from gender-based violence (GBV).
The high levels of GBV also reflected violence against sexual and gender minorities. In particular, “corrective rape” resulted in significant harm to lesbian, gay and transgender people – this was a sex crime and a hate crime.
The EFF’s Founding Manifesto stated its opposition to oppression of anyone based on their gender, gender expression or sexual orientation. The EFF opposed any cultural or religious practices that promoted the oppression of anyone.
The EFF welcomed the inclusion of the National Register for Sex Offenders, and the prohibition of these people working anywhere they would be in contact with vulnerable. The EFF felt that section 2 of the Act should be tightened to make it explicit that the Register was for anyone who committed sexual offences. The EFF proposed an alternative register for those whose cases were still active.
The EFF welcomed the expansion of the definition of incest, to include cases where a child was sexually violated, even if there was consent. The EFF proposed expanding this offence to include a charge of rape, as children could not give consent.
The EFF did not agree with S51 of the Bill, submitting that offenders should only be removed from the register by a court.
The EFF proposed that the amendments to S54 were progressive, but should be expanded to include an obligation to report sexual crimes against women generally. The EFF submitted there should be an addition to the list of sexual offences, including sexual coercion by a partner, forced marriage, ukuthwala, ukungenwa, refusal to pay a sex worker and sex for jobs.
Ms Sharon Letlape, EFF Member, presented the EFF’s submission on the Criminal and Related Matters Amendment Bill. The EFF welcomed the amendments to the Magistrates Act and Superior Courts Act allowing intermediaries for vulnerable witnesses.
The EFF noted the stringent conditions to the amendments to S59, S59A and S60 of the CPA concerning bail for those accused of sexual offences. The EFF proposed that the Bill did not go far enough and did not recognise toxic societal pressures on victims. The EFF submitted that those accused of sexual offences should not be considered for bail at all. The amendment to S299 of the CPA should not include possibility of parole for sexual offenders at all, and the EFF proposed life sentences for those guilty of sexual offences.
Ms Mbali Dlamini, EFF Member, presented on the Domestic Violence Amendment Bill. The EFF welcomed expanded definitions to domestic relationships and domestic violence.
The obligations created amendments to S2A and S2B were comprehensive and would establish a societal pact to report cases of domestic violence. The EFF was also happy with S3 and S3A of the Act, expanding powers of peace officers. The EFF also supported the section on protection orders.
Ms Mailola concluded, arguing that matters of GBV were prevalent and had to be addressed immediately. The legislative propositions would go a long way in curbing violence against women. However, there had to be other commitments by both the executive and legislature. Parliament should take a proactive role in holding the executive to account on implementation of the bills.
Ms Y Yako (EFF) highlighted the issues of rural practices which oppressed women including ukuthwala. She agreed that offenders had to be left on the register for life unless acquitted by court. She emphasised that the Committee should take implementation seriously, especially by the police.
Mr X Nqola (ANC) noted an issue with the EFF’s call for no bail for perpetrators of GBV, given that this was inconsistent with the right to bail in S35 of the Constitution. This section also gave the right to be presumed innocent until proven guilty. He argued that the Committee could not draft legislation that did not comply with these rights. He further noted the EFF’s conditioning of its support for the Bills on its proposals being included, asking if it would withdraw its support if this was not the case.
Ms J Mofokeng (ANC) noted the EFF’s call for no parole for sexual offenders. Regarding the EFF’s submission on parole, she asked if the EFF was happy with the existing parole system. She further enquired as to who should execute oversight on SAPS officers not complying with new provisions.
Ms Mofokeng asked if the EFF agreed that court orders should be centralised to stop serial perpetrators.
Mr R Dyantyi (ANC) noted that GBV was a societal challenge, and that it could only be solved if the Committee took matters of patriarchy seriously. He noted that there was a pattern where laws were tightened but GBV persisted or worsened. He asked the EFF what else could be done as society to fight GBV. Resources, money and laws alone could not defeat the issue of patriarchy.
He repeated Mr Nqola’s question about the EFF withdrawing its support if the Committee did not include its submissions in the bills.
Ms N Maseko-Jele (ANC) asked the EFF for its views on mandatory reporting and intermediaries, and the classification of all women as “vulnerable”.
Ms Mailola replied to Mr Dyantyi on the matter of tightening the Bills’ provisions. The Bills had not brought the solutions they were intended to when they were drafted. The Bills had not curbed violence against women and children. Why would Parliament tighten a failed bill, rather than replacing the bill? She proposed the need to engage in an entirely new legislative process to address the issue of GBV. There was a need to understand the psychology of perpetrators of rape and GBV. She argued the Bills were not speaking to immediate interventions and responses that government should be looking into.
When women went to police stations to report incidents of GBV, they faced challenges in the police station. The problem may be that police were not trained properly to deal with issues affecting women and children. The training system did not have proper programmes in this regard. GBV cases were not prioritised in court, and perpetrators were given bail. The problem started with the police not investigating GBV cases properly. She noted an example of a murder in Orange Farm where the police had not taken any forensic evidence. She also raised the issue of backlogs in forensic laboratories. When the NPA went to court without evidence from the police, it was quick to ask for postponement. This left women alone to fight GBV issues, with no help from the state.
During the Covid-19 lockdown, there were soldiers and police on the street. When the government dealt with issues of GBV and violence against children, the government did not take the same scientific approach.
Ms Letlape answered questions on the matter of no bail for sex offenders: she argued that South African law was far too protective of perpetrators rather than victims. Victims had to share spaces with perpetrators out on bail days after they had opened a case. The police displayed a very casual attitude towards cases of sexual violence. The EFF was against bail for sexual offenders.
Ms Leigh-Ann Mathys, EFF Member, argued that the Constitution was not written in stone, and the Constitution could be amended to allow for no bail for sexual offenders. She argued that the ANC government would never take the issue of GBV seriously. The courts system had to be properly centralised. Raising issues of the societal challenge was a cop-out. It was the government’s mandate to attempt to address GBV, and it could not foist this responsibility on society at large. She disagreed with Ms Mofokeng, arguing that all women in South Africa were vulnerable.
Ms Dlamini highlighted the matter of repeat offenders. She also noted that SAPS’ response to GBV was vastly insufficient, and it claimed a lack of resources for its faulty response. She argued that the traumatic nature of GBV meant cases had to be treated specially. She added that the ANC’s politicisation of GBV was disappointing.
The Chairperson reminded members that this was a public hearing, and not a political platform – politicking could take place at a later stage.
Ms Lee-Anne Germanos, Director, Embrace Project, lamented that the Bills only focused on punitive sanctions, and not on preventative measures. In many cases, this was too little, too late.
South Africa had a culture of violence due to its violent past. The South African population also may have an ambivalence towards the law due to the use of the law as a tool of oppression under apartheid and colonialism. Inequality had become institutionalised in South Africa. GBV was about exerting dominance and control from a stronger perpetrator on a weaker victim. Violence was a learnt behaviour, and millions of South African children who grow up in violent households became likely to perpetrate violence into adulthood. South Africans all grew up in a culture of violence and a rape culture.
Ms Cassandra Guerra clarified that the Embrace Project’s major recommendations across all the bills focused on four areas: implementation, sensitisation training, effective accountability mechanisms and preventative measures.
Ms Germanos continued that, in terms of the Sexual Offences Amendment Bill, the Embrace Project proposed that consent should be defined, as should “coercive circumstances” where consent could not be given. She also proposed at a minimum the decriminalisation of the sale of sex work, given that sex workers were discriminated against by the criminal justice system.
The Embrace Project proposed the criminalisation of the viewing of child or mentally disabled pornography, which was a loophole in the law. Ms Germanos suggested taking provisions allowing electronic access from the Domestic Violence Amendment Bill on this matter and transplanting them into the Bill.
Ms Germanos proposed the inclusion of cybersexual offences in the definitions of the individual offences, and the expansion of the offence of sexual exploitation to include migrants, refugees and asylum seeker. It suggested the expansion of the definition of vulnerable persons to migrants, refugees, asylum seekers, sex workers and LGBTQIA people. There was a contradiction in the definition of vulnerable persons setting the limit to women under 25.
The Embrace Project noted that the National Register for Sex Offenders had not been made public, and that certain particulars should be made available on the Department’s website.
35.5% of sexual offences were reported to SAPS, 40-60% were withdrawn by either SAPS or the NPA, and only 8.6% of prosecuted cases saw successful convictions. Sensitisation training and monitoring mechanisms were provided for but had proven ineffective.
In terms of the Criminal and Related Matters Amendment Bill, the Embrace Project proposed:
that a complainant in a case of domestic violence should always be informed of a perpetrator’s parole consideration.
That S316B clause 10 made appeals more onerous and should be amended.
Rape, compelled rape and sexual exploitation should bear a minimum sentence of life imprisonment.
In terms of the Domestic Violence Amendment Bill, the Embrace Project argued that criminal penalties imposed for failure to report domestic violence could prove counterproductive. It also noted that public education and sensitisation training had to be escalated at the NPA and SAPS.
The Embrace Project proposed rehabilitation programmes for sex offenders and an overhaul of correctional services facilities, so they did not release unrehabilitated perpetrators. It also noted the need for compulsory and regular sensitisation training for the entire criminal justice system (SAPS, NPA, judiciary and correctional services officials). The Embrace Project also recommended public education campaigns and specialised school curricula. It proposed that the law should be more victim centric.
Mr W Horn (DA) asked Embrace Project at what point should the country start considering, given the severe impact of GBV, including policy considerations to address issues such as mandatory rehabilitation or sensitisation programmes in legislation. He argued that it might not be wise to include matters of evidence in criminal legislation rather than in separate legislation or rulemaking.
Dr W Newhoudt-Druchen (ANC) argued that the country could have the best laws, but still not be able to break the cycle of violence. Many incidents of GBV occurred in the home, which could not be policed. Where did the law have to get tightened to break this cycle of violence? She noted the increase in GBV online. She asked what could be done to ensure that cases appearing before the police made it through the justice system rather than being withdrawn. She asked whether rehabilitation should be made compulsory for all cases of GBV.
The Chairperson noted the examples raised of miscarriages of justice in judgments on rape cases mentioned by the Embrace Project – he suggested they bring these examples to the attention of the Magistrates’ Commission and Judicial Service Commission. This could assist these bodies in carrying out their duty. He agreed that there was a need for training across the criminal justice system.
Ms Germanos replied that after a matter being reported to the Magistrates’ Commission, it took up to a year to suspend the individual in question. The JSC had similar issues with enforcement and sanctions of judges.
In reply to Mr Horn, Ms Germanos noted that provisions on sensitisation training for the NPA and SAPS had actually already been enacted into law elsewhere, including in the Domestic Violence Act. She argued that the law of evidence was not victim-centric, and that perhaps a separate piece of legislation was best to deal with this issue.
Ms Germanos agreed with Ms Newhoudt-Druchen that one could not police what happened in the home. In this regard, the Embrace Project had made a raft of propositions to DSD on introducing school curricula.
Ms Germanos noted that the issue of resources for SAPS and the NPA was one to be dealt with by budgeting, not legislation.
The Chairperson thanked the Embrace Project, noting that the Committee comprised members of both the JSC and Magistrates Commission who had taken note of the examples of miscarriage of justice raised by the Project.
Adv Brenda Madumise, Director, Wize4Afrika, stated that the Bills did not exist in a vacuum, and laws alone could not be decisive against GBV. Laws existed to address certain challenges faced by society itself. Amendments came out of the work done in the National Strategic Plan on GBV. The Plan had six pillars: South Africans had a role to play in all 6 of them. Amendments were nevertheless necessary and important to strengthen laws in response to what was occurring on the ground.
Regarding training, Adv Madumise raised serious issues. She noted that she could not gain access to the specific training manual on GBV used by SAPS, if this existed.
Wize4Afrika was fully cognisant that laws could never stop GBV.
Adv Madumise stressed the need for the bills to be properly funded. Resources had to be made available for this to happen. If there was inadequate funding, the Bills were dead in the water.
Ms Onika Makwakwa, Director, Wize4Afrika, continued the presentation. Wize4Afrika’s submissions were focused on implementation and consequence management for failure to implement.
Regarding the Criminal and Related Matters Bill, Ms Makwakwa saw a lack of clarity in S51 in the selection of intermediaries. Wize4Afrika proposed the use of a panel for vetting and selection. She welcomed the use of multimedia platforms for hearings. A technical capacity similar to invigilation would be needed to ensure accurate testimony.
Ms Makwakwa highlighted S59 in terms of consequence management, arguing there were unclear consequences for failure to implement. She noted frequent abuse of processes by perpetrators, and proposed a need to punish police officers and prosecutors who collaborated with prosecutors. She agreed with the right to bail, but stressed that the state should systematically oppose bail for GBV perpetrators, and there should be stringent conditions for those out on bail, including psychotherapy and checking in at police stations.
Ms Makwakwa saw the need to disarm people (including law enforcement officers) who had protection orders against them, raising the example of Leighandre Jegels, murdered by her police officer boyfriend.
Ms Makwakwa was concerned about the definition of vulnerable persons excluding women aged 26-59, who were key targets of GBV, as were members of the LGBT+ community. Women’s economic vulnerability was also not addressed.
Ms Makwakwa welcomed the expansion of the NRSO. The registry should not be only about employment, but also about communities. Wize4Afrika proposed including images of perpetrators on the registry. Ms Makwakwa also saw issues with the removal of people from the registry. She proposed a blanket 20-year presence.
In terms of S54 obligations to report sexual offences, Wize4Afrika wanted the act to identify professions required to report knowledge of sexual abuse. This would require training of those obliged to report.
Adv Madumise continued presenting on the Domestic Violence Amendment Bill. She proposed that the key issue was re-establishing trust in the police. Wize4Afrika was proposing the installation of CCTV cameras in stations and body cameras for police officers, to enforce better compliance. Wize4Afrika wanted the committee to focus on the granting of interim protection orders after reporting of domestic violence. She stated that stalking and online violence were currently absence from the DVA Bill. The DVA Bill should have synergy with other bills.
The right to safety was not being realised for citizens. Wize4Afrika was taking on negligence of the police in acting on instances of domestic violence in court.
Spiritual abuse was also a reality for many South Africans. Charismatic churches had been a breeding ground for sexual violence.
Mr Horn assured presenters that the Committee did not see the Bills as the only answer to GBV, noting the need for an integrated approach. In respect of Wize4Afrika’s support for no bail for GBV offences, he asked whether this could be legally justified in light of the presumption of innocence and the development of the law in a very specific manner regarding bail. He asked whether this could be practical given that GBV took place on a continuum. Whilst all forms of GBV were unacceptable, there were degrees of violence and violation which had to be taken into account by the law.
Ms Mofokeng commended Wize4Afrika’s involvement in the National Strategic Plan. She asked whether the R1.6bn appropriation for the Plan would be sufficient. She enquired as to who should be responsible for consequence management in implementation of the Bills. She proposed extending training to judges and magistrates. On the current legislation, why did economic vulnerability not get considered?
Dr Newhoudt-Druchen asked whether registers should be amalgamated into one single register. She asked Wize4Afrika for input on the Thuthuzela Care Centres.
Adv S Swart (ACDP) noted that not all charismatic churches were breeding grounds for GBV. He asked how MPs could improve oversight of implementation of the bills. Regarding obligations to report, one could find issues with forcing victims to be involved in reporting.
Mr Dyantyi noted his interest in prevention, agreeing with Wize4Afrika that the Bills alone could not achieve the end of GBV. He proposed that the ultimate solution was the emancipation of women and the end of patriarchy. He requested input from Wize4Afrika on what the mobilisation agenda against GBV should be.
Mr Dyantyi asked Wize4Afrika for its input on magistrates, noting his involvement in processes addressing systemic issues at the Magistrates Commission. What was missing from training? SAJEI was involved in training magistrates on GBV as part of their judicial education.
The Chairperson noted that vetting of intermediaries would usually have a timeframe – how long would Wize4Afrika propose this period be?
Adv Madumise stated that some responses would be submitted in writing. For Wise4Africa, one of the key demands was that no one with a history of sexual offences should be in the civil service. Wise4Afrika’s mention of R1.6bn was referring to the President’s pledge to allow Departments to reprioritise and focus on emergency response. The three bills on the table were part of this programme.
Adv Madumise agreed with Adv Swart that not all charismatic churches had GBV problems, but in her work the number of incidents of GBV coming out of charismatic churches was far too much.
Adv Madumise argued that there was a lack of pride in work amongst police officers and prosecutors involved in GBV cases. It had to be made clear that professionalism and pride was what the nation expected of those involved in the criminal justice system. She found it quite telling that when the police were confronted with issues of GBV, they froze.
Adv Madumise recognised that bail was a constitutional right, but it seemed that in most GBV cases bail was taken for granted, and prosecutors did not seem to be willing to fight for bail not to be granted. She proposed that systematically prosecutors should be opposing bail for perpetrators of GBV. Adv Madumise noted that the trial times for sexual offences were far too long, and that cases should be resolved much faster.
Ms Makwakwa noted that in terms of consequence management, Wise4Africa was looking at impunity for penetrators. IPID resolving pending cases against police in terms of GBV had been a request of Wise4Africa six months prior. Impunity existed amongst both perpetrators and authorities. The constitutional presumption of innocence was acknowledged, but women had to be granted their constitutional right to safety as well.
Teddy Bear Foundation (TBF)
Dr Shaheda Omar, Board Director, TBF, noted its work constituted working with child victims of sexual offences as well as child sexual offenders. The TBF tried to ensure that the constitutional rights of children remained protected.
TBF endorsed the submissions by Prof Ann Skelton, the Centre for Child Law and the Shukumisa Coalition.
TBF proposed that the monitoring and evaluation components of the Bill would be essential to its success.
More than 50% of children coming from situations of domestic violence were at risk of being abused or violated. Violence against women and violence against children reinforced each other. The NSP spoke to both violence against women and children. TBF highlighted that children were hurt but not heard.
It was often difficult for victims to report domestic violence in terms of economic and personal means. Whilst the Domestic Violence Amendment Bill increased protection for victims, it had to be enforced with a commitment by all stakeholders concerned. There had to be a system in place to ensure all cases were treated professionally. Training was key, as were specialist officers – the SAPS charge officer may not have the skills to handle GBV cases.
The need for first responders was complemented by the need for support for these first responders, as officers on the frontline also suffered trauma and vicarious trauma.
The matter of false reporting had to be decided by courts, not officers. Crime statistics were inaccurate as a result of cases being dismissed or dropped. There was a lack of follow up on complaints received, especially those from the LGBTQIA community.
TBF recommended the inclusion of same sex couples, that ukuthwala be criminalised and that virginity testing be banned.
Regarding the sexual offenders’ registers, South Africa had two: the NRSO and the National Child Protection Register. The NRSO was flawed as it only made provision for sexual offences and did not include murder or physical abuse. The number of cases documented on both registers were questionable. The same approach could not be used for children and adults. The registers would require a significant budget to work properly. TBF noted concerns over mob justice and victimisation of child perpetrators and victims in the case of registers becoming public.
Adv Swart noted that an important lesson learned from TBF was taking into account the unintended consequences of passing legislation without considering its impact. He agreed with the point raised by Ms Omar over providing support to first responders themselves, and asked for more detail on how sensitivity training should work for police officers.
Ms Mofokeng asked for clarification on the issue of the criminalisation of virginity testing, enquiring as to how this would impact the constitutional rights of traditional cultures where this practice was common.
Dr Newhoudt-Druchen asked whether TBF had any relationship with Thuthuzela Care Centres, and what TBF’s view was on these facilities. Regarding mandatory reporting, she had heard arguments for and against this during the course of hearings, and asked Dr Omar for her view, especially when it came to children.
Dr Omar agreed that all stakeholders had a role to play: prevention and intervention had to be coordinated in the response to GBV and domestic violence. Children had to be made aware of their rights and responsibilities from a young age. Empathy training through roleplaying would also be key to reaching higher sensitivity. Role reversals and simulated situations would contribute to a better understanding of victims. Vicarious trauma was also a big problem, and affected the mental states of law enforcement officers.
Regarding virginity testing, it was clear that this was not foolproof as other forms of penetration were still possible, and a lack of awareness could also lead to other problems such as STDs and STIs. The law should be formulated in the best interests of children, families and communities.
TBF had relations with Thuthuzela Care Centres, and supported the concept but noted resources were not always available due to budgetary constraints. Mandatory reporting enforcement would assist increased reporting rates.
Dr Omar agreed with Ms Newhoudt-Druchen’s point on children being disempowered to reach out to people where they had been victimised. She proposed that referral pathways and safety networks may be more effective ways to giving children a voice and prevent “silent crimes”.
Voice It In Action (VIIA)
Mr Kgothatso Moloto, President, VIIA, welcomed the Bills generally, but noted the Bills were missing actions that solving GBV required immediately. He stressed the alarming rise in GBV cases since 2019.
VIIA proposed treating GBV similarly to Covid-19, as a State of National Disaster and with a coordinated response. Creating integrated and coordinated disaster management mechanisms was part of this response, centred on enhanced emergency response systems. VIIA also called for police stations to provide reports on GBV including tallies on cases reported and solved, to be followed by extensive analysis. VIIA proposed the kind of departmental coordination and the reprioritisation of funds towards victims displayed during Covid-19 should be mirrored in addressing GBV.
Mr Moloto noted that secondary victims were often not considered by the law. He proposed that if the Disaster Management Act did not already accommodate GBV, it should be amended to do so, as not enough was being done to protect women.
GBV was caused by, amongst other things, gender inequality, poverty, poor education and inconsistency in the justice system. The complex solutions identified by VIIA included equal opportunity, economic inclusion, quality education and advocacy and accountability systems.
VIIA proposed the needs for greater public education, in all 11 languages. He encouraged youth participation in public education and the creation of employment opportunities. He proposed that, if government started to treat GBV as a pandemic, real change would be evident.
Ms Mofokeng asked Mr Moloto for clarification on the establishment of a command centre: what about the GBV/F Council? Similarly, she asked for clarification on how the use of the Disaster Management Act would concern police and justice.
Mr Nqola highlighted Mr Moloto’s argument that economic issues caused GBV, and asked whether VIIA thought GBV did not occur in affluent communities. He requested a clarification of how VIIA participated in protecting vulnerable people from GBV, and whether it was involved in legal proceedings as an amicus in GBV cases.
Mr Horn took Mr Moloto’s point that urgent attention to the GBV issue was required. He thought Mr Moloto’s suggestion on police-station level reporting of GBV was valuable, although this was not strictly related to the Bills themselves.
Mr Moloto responded that GBV happened everywhere, but was more prevalent where poverty was rife, as people had fewer resources to defend themselves and to remove themselves from unsafe situations. VIIA had supported cases, including the Tinyiko case in Ekurhuleni. VIIA proposed that Community Policing Forums in areas with high GBV incidence should be inter-connected.
Ms Mofokeng reiterated her question on whether the GBV/F Council would not constitute a form of “command centre”, and what role police, justice and social development would take in a proposed use of the Disaster Management Act.
Mr Moloto noted that the proposed council was proposed, and not running despite the urgency of the situation. He proposed that the duties of police, justice and social development would involve education, better enforcement. VIIA had not been amicus in courts as of yet, although it had partnered with police stations to raise awareness in communities.
Women’s Legal Centre (WLC)
Adv Bronwyn Pithey presented the WLC submission. The WLC used strategic litigation and other legal support to advance women’s rights.
Adv Pithey raised the question of how many GBV and sexual offences made it through the justice system. She noted a substantial drop in the number of sexual offences verdict and convictions. The percentage guilty verdict of reported cases was now under 8%. She noted that nothing had changed in terms of convictions in 20 years, and the conviction rate in 2020 was similar to that of 2000.
More than 90% of reported sexual offences were “lost” – women were encouraged to report but the criminal justice system rejected them. She encouraged the Committee to look into why so many cases fell out at the police and prosecutorial level. The detection challenge raised by the NDPP did not reflect that most rapes happened between people who knew each other.
Generally, WLC supported the Bills. WLC commended the extension of the use of intermediaries and CCTV in non-criminal matters. WLC also proposed that “police and prosecutor” bail should not be granted in case of domestic violence. The WLC supported the codification of consistent practice on evidence in cases of bail.
The WLC also agreed with the extension of protective measures to witnesses over the age of 18. It was concerned about the requirements to qualify for the use of an intermediary and whether victims would have to prove their qualification, and proposed deleting the requirements.
Adv Pithey noted the amendment of S299A of the CPA, arguing that the duty to inform complainants of the right to make representations on parole should be extended to police and prosecutors.
The WLC did not support the inclusion of the element of “imminent harm” into the new offence of “sexual intimidation”.
The WLC supported the extension of the NRSO to all sexual offences. However, it echoed points on the arbitrary age distinction for women under 25 as vulnerable rather than all women being classified as vulnerable.
The WLC did not support making the NRSO public, as the NRSO was for the purposes of employment according to legislation, and making it public did not serve that purpose.
The WLC was concerned about the definition of a domestic relationship in the Domestic Violence Bill, recommending the removal of any time frame. The WLC also recommended the use of two standards of knowledge and reasonable suspicion in S2A and S2B. WLC did not support mandatory reporting of domestic violence by functionaries or adult persons for other adult persons, which undermined the service relationship between client and service provider, as well as women’s agency. It may result in women not seeking assistance due to possible mandatory reporting. The law was not always the only and best way to deal with violence. The WLC held a similar position when it came to the criminalisation of the failure to report domestic violence.
The Chairperson noted that the WLC’s work was useful in the Committee’s mandate to conduct oversight on the Department, and advocated for an active citizenry.
Ms Mofokeng referred to the publicisation of the NSRO and asked how could ordinary people protect themselves from sex offenders without access to this register.
Dr Newhoudt-Druchen asked what could be done to ensure more cases mate it through the criminal justice system. On mandatory reporting, in incidents where adults did not wish to report cases, could there be a system to help walk victims through the process of reporting and provide counselling and support?
Mr Horn took the WLC’s point on definitions, and noted it would be helpful if alternatives could be advanced in this regard. While he noted opposition to mandatory reporting, he wondered whether there was no situation in which mandatory reporting for adults had applicability.
Adv Pithey reiterated the point that the NRSO was currently legislated for the purposes of employment. Making this public would require altering the content of the legislation governing the NRSO completely to provide for public access for non-employment purposes.
On the attrition rates, Adv Pithey argued that the criminal justice system was a reflection of a society that only attached “value” to violent rapes, and therefore only took seriously certain forms of sexual offences. To hide behind the reasonable prospects of success as the NPA was effectively to acknowledge that courts did not take rape seriously, and this had to be challenged.
Adv Pithey understood the imperative behind mandatory reporting, but cited extensive international research showing that mandatory reporting did not make things safer for women. Mandatory reporting could force women into a system that did not protect them. Victim advocate organisations were numerous in South Africa, and fulfilled the role of helping women through the criminal justice system. Mandatory reporting was an idea that seemed progressive but did not have its intended effect.
Adv Pithey noted that the WLC’s submission did include suggested wording for definitions.
The Chairperson thanked the WLC. He raised the issue of specialisation, noting that the curriculum for law graduates or students should be looked at for sensitisation training.
Centre for Child Law (CCL)
Prof Ann Skelton, Director, CCL, supported the idea that children needed protection from persons with criminal records for sexual offences being able to access them in the workplace. This was what the NRSO was currently intended to do. Currently there were 200 child offenders’ details on the register.
Prof Skelton noted, however, that South Africa already had a more efficient register, the SAPS Criminal Record System, which was a complete database of all offences committed by all persons. This was a highly reliable system, in contrast to the less reliable NRSO, whose reporting was not automatic.
The NRSO had issues with getting details on register, saw duplications with the NCPR, the category of crimes captured were possibly still too narrow, had a history of ineffective operation and raised certain constitutional questions, especially in terms of retrospectivity. By contrast, the CRS was automatic and served the complete range of purposes.
Prof Skelton noted potential practical issues over whether such a wholesale shift could be made in the Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill. She argued that it was possible to make such an amendment, through amendments to S41 and S45 of the Bill, and the limiting of scope to sexual offences only in this particular law. Prof Skelton proposed the insertion of the phrase “has a criminal record of a sexual offence…” in S41, and a similar change in S45, as well as creating obligations for producing police clearance certificates in S45.
Prof Skelton had serious concerns over the provision for making the NRSO public, arguing that the provision had been added to the Bill hastily and would cause immediate contradictions in the law, especially with the Sexual Offences Act. Should the Department opt for making the register public, it should base this proposal on research and careful consideration, as it would require a rethink of the register’s legal groundings.
The proposed clause 7(c) entirely changed the rationale from the register, from employment purposes to public access (the purpose of thereof being unclear). The system as it was rested on automatic placement on the register, giving courts no discretion, which would place every category on the register. A Constitutional Court had already established automatic placement as anti-Constitutional.
The current law handled this by allowing for removal from the register depending on length of sentence. If the register was made public, this approach would be nullified: a public register was a permanent register, as this name would always be in the public domain. This may lead to successful legal challenges to the Bill at the Constitutional Court.
Prof Skelton raised the lack of an evidence-based approach to making the register public. If the law was challenged in the Constitutional Court, it would have to decide whether the provision for a public register was logically connected to enhancing the safety of potential victims, which would require proof on behalf of government in this regard. The Court would also consider whether there were less restrictive means that could fulfil the same purpose.
Other concerns about the register included that the majority of sex offenders were known to victims, and a public register might give the public a false sense of security. Children also lived in the households of these sex offenders. Vigilante action was a large risk.
Most of the problems raised would be resolved by using the SAPS CRS instead of the NRSO.
Prof Skelton could not complete her presentation.
SA Women in Dialogue
Ms Keketso Maema, CEO of the CGE, presented the SAWID submission.
SAWID recommended that training and skilling on the Domestic Violence Amendment Bill be prioritised, and that protocols, guidelines and norms and standards should be ready prior to the Act coming into effect. Functional literacy of clerks of court was important to ensure court systems did not undermine access to justice. Interpretation and knowledge of the primary purpose of the DVA Bill was important for outcomes at the clerk level. Clerks and SAPS played a crucial role as far as the Act was concerned, and therefore proper periodic training was required.
During dialogue, the issue of the shortage of resources was raised. SAWID urged Parliament to engage with various concerned departments affected by the Bill to cost the outcomes. Implementation rested on public servants having requisite skills and resources.
SAWID also raised the issue of binary language, proposing that the gender-binary language was exclusive of LGBTQIA+ community and should be amended. SAWID also stressed the issue of sign language interpretation at courts.
SAWID noted discretionary language giving police discretion on arrests even when there was a protection order accompanied by an authorised warrant of arrest. SAWID proposed this should be limited.
SAWID opposed mandatory reporting of domestic violence against adults, given this removed agency from individuals. This requirement may be counter-productive.
There was a lot of literature on protection orders that advocated not allowing the complainants to withdraw. However, SAWID proposed that courts should look further rather than taking a blanket approach.
SAWID questioned why COGTA did not have S18 directives, given local municipalities were involved in the NSP’s proposals to address GBV.
SAWID highlighted an issue with the definition of vulnerable groups excluding survivors of sexual violence as well as the exclusion of women between 26 and 59.
Ms Mofokeng requested clarity on the withdrawals of GBV cases. On costing, she noted that the Steering Committee had reported a costing of R8bn over 5 years for implementation of the NSP.
Ms Maema proposed that the matter of withdrawals was a delicate one which required a balanced approach. Many victims wanted their own agency, whereas others preferred to be assisted in the legal process.
Ms Maema was aware that costing had been done, but argued that capacity and new responsibilities were the core of her point.
The Chairperson thanked SAWID and moved on to the issue of Remuneration of the DPP.
Deputy Public Protector Remuneration Report
The Chairperson enquired whether interest on salaries related to the date of appointment.
Adv G Breytenbach (DA) answered that this was what was the previous report said.
Ms Christine Silkstone, Committee Content Advisor, noted that the President’s letter had not clarified the date of the salary increase.
The Chairperson was unsure whether backdating the raise to the date of appointment was appropriate legally. Noting no Committee input on the text, he nevertheless proposed referring the report to Parliament’s legal advisors, in order to understand whether the salary increase should be backdated or not.
Ms Maseko-Jele agreed with the Chairperson’s proposal.
Ms Mofokeng agreed.
Mr Dyantyi agreed with the need for legal clarity.
Western Cape Government Submission
The Committee Secretary noted that the Western Cape Government was not available for its submission on the GBV Bills.
The Chairperson proposed that the Western Cape would have to give a written submission to the Committee.
Adv Breytenbach enquired whether the WCG had been aware of its required attendance on Friday.
The Committee Secretary replied that the Secretariat had used the wrong communication address for the WCG, and thus only invited the Government on the 23rd October to present on the same day.
Adv Breytenbach accepted this was an honest mistake, but it was dishonest to claim the WCG had been invited when it had not been given reasonable time.
The Chairperson saw the need to allow the WCG to present given the error was the Committee’s, and proposed scheduling this the following Wednesday. He proposed extending this invitation to Prof Skelton as well to complete her presentation.
Adv Breytenbach thanked the Chairperson for his approach to the issue.
The Chairperson noted that the Committee should attempt to identify issues in the Bills which may be subject to constitutional challenge, for instance the proposal around bail and the public availability of the NRSO. Vital legislation of this nature had to be beyond legal challenge to avoid a situation where it became mired in judicial processes for years. He proposed that the text of the Bills was vital, but fears over lack of capacity for implementation had to be taken seriously. The Committee had to take these into account. There had to be a state-of-readiness update from all concerned departments in order to ensure implementation. The issue of budgeting was also key. It would be important to confer with legal advisers and other committees in passing the Bills, so that the Bills did not enforce some kind of “malicious compliance”. The Chairperson asked whether members agreed.
Adv Breytenbach agreed with the Chairperson’s proposals.
Ms Mofokeng agreed.
The Chairperson noted the need to develop a programme speaking to the above issues with the Secretariat. He thanked members for their diligence.
The meeting was adjourned.