Gender-Based Violence Bills: public hearings day 5
28 October 2020
Chairperson: Mr G Magwanishe (ANC)
- B20-2020 - Domestic Violence Amendment Bill
- B17-2020 - Criminal and Related Matters Amendment Bill
- B16-2020 - Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill
In a virtual meeting, the Committee met to hear submissions on the gender-based violence (GBV) Bills. The Bills cover the 2020 Domestic Violence Amendment Bill, 2020 Criminal and Related Matters Amendment Bill and the 2020 Criminal Law (Sexual Offences and Related Matters) Amendment Bill. In a previous meeting, the Committee heard the submission of Prof Ann Skelton from the Faculty of Law at the University of Pretoria. The Committee did not engage on the submission and the opportunity to do so was provided in this meeting. In her submission, Prof Skelton mostly agreed with the Bills, but had a number of issues with the National Register of Sex Offenders (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.
Members asked what makes removing the names so difficult, and why do offenders need the assistance of organisations to have names removed.
The Western Cape Government then presented its submission on the GBV Bills. The reduction of GBV is a priority for the Western Cape government. It supports strengthening legislation to support victims.
Committee Members raised concerns about the requirements for victims of GBV who are deaf; asked what happens to the weapons of police who are accused of GBV; and noted the need for a victim centred approach. Members commented about the duty of the employer to vet employees, as Western Cape is becoming a centre for GBV.
Report of the Portfolio Committee on Justice and Correctional Services on the Notice determining the remuneration of the Deputy Public Protector in terms of section 2A of the Public Protector Act, 1994 (Act No 23 of 1994)
The Chairperson read the Report to Members.
The Report was adopted.
Adv G Breytenbach (DA) reserved her position.
Public Hearings on the Gender-Based Violence Bills
Submission by the Faculty of Law, University of Pretoria (UP)
Prof Ann Skelton, Department of Private Law, UP, could not continue her presentation in the previous Committee meeting. The Members were now afforded 30 minutes to engage on the submission.
Ms W Newhoudt-Druchen (ANC) asked about child offenders. Even though the Constitutional Court said offenders’ names would be removed from the register, Professor Skelton said this would be difficult. She wanted to know what makes this so difficult, and why do offenders need the assistance of organisations to have names removed. She said she worried the more people put on the register, the harder it will be to get taken off.
The Chairperson said Mr S Swart (ACDP), was held up in the Standing Committee on Finance meeting. Mr Swart noted he also wanted to engage with Professor Skelton’s presentation.
Prof Skelton replied to Dr Newhoudt-Druchen’s questions. There are several reasons for difficulties in removing child offenders’ names from the register. Firstly, if a child’s name is meant to be on the register for life, then it is not possible to have it taken off. There are certain names which simply cannot ever come off.
Prof Skelton said however, there are some who could apply after five, ten, or 15 years. These persons do not know they are allowed to do this, as these persons do not have lawyers, and are unaware of what to do. When the Constitutional Court made the decision, Professor Skelton and her colleagues tried to get the Registrar to give details of those on the list, so the Centre for Child Law (CCL) could help them. The Registrar was unwilling to share names with CCL though. Professor Skelton said she is not criticising the Registrar, it was just the way it worked. So, the children are not identified.
The CCL worked with Legal Aid, but could not even get one of the 100 off the register, which is why she can confidently say these children are on the register. The default position is, children do not go on the register unless the prosecutor explicitly asks for this, and then, there is still an opportunity to question this. Fewer children will go on the register in future, but it is still possible.
Adv G Breytenbach (DA) asked Prof Skelton if the Committee can be of assistance concerning the matter of child offenders still on the register. It is unacceptably unfair for children to have the opportunity to argue why not to be on the register, and only in rare cases will these children be on it, yet people who are already on the register and who have not reoffended will carry this for the rest of their lives.
Prof Skelton said, in her written submissions, which were slightly different to her presentation, she highlighted one issue. It could be an oversight in the law when it was changed in 2015. CCL itself did not notice this at the time. Certain children will never be able to remove their names. This was not intended at the time. It was quite easy to get ones name on the register, even for an 18-month sentence which was wholly suspended, so the threshold was very low. Prof Skelton said the Committee may want to address this. She has a paragraph in her written submissions dealing with this. She said she can provide it to the Committee again to draw attention to it.
Concerning the current problem of the 200 children still on the register, Prof Skelton said the children wrote to the Minister asking for assistance to get the Registrar to provide names. If the Committee can intervene with the Registrar to make sufficient details available to trace details, this will be very helpful. CCL has the names and case numbers, but does not know how long the children were on the register. Knowing this could help to prioritise, starting with children who were on the register for five years. If the Committee can direct questions to the Registrar, CCL could pick this up again.
Adv Breytenbach asked Prof Skelton to provide names and case numbers to do this.
Prof Skelton agreed, and also said she will send all of the correspondence CCL has too. She was the Director of the Centre for Child Law at the time, she is no longer. She will liaise with the current Director and get this information sent through.
The Chairperson noted how these public hearings were good, not only because it focuses on the texture of the law, but also because it highlights issues of ongoing oversight.
The Chairperson said Ms J Mofokeng (ANC) has network issues, so she may join the meeting in parts.
Submission by the Western Cape Government
Ms Leana Goosen, Chief Director: Social Welfare and Restorative Services, Western Cape Department of Social Development, introduced herself and Mr Mzukizi Gaba, also from the Department, who was to make the presentation to the Committee.
Mr Gaba welcomed the opportunity to present on the Gender Based Violence Bills. Before he proceeded, he gave some context and background.
Since the President put the National Strategy Plan (NSP) for Gender Based Violence (GBV) on the agenda, the Western Cape Government, as part of this safety plan, appointed Western Cape Provincial Minister of Social Development, Sharna Fernandez, as a champion against GBV. She appointed Dr Sauls to head the project in her office.
Mr Gaba highlighted how its interventions are informed by inputs which come from forums. The presentations on the present day were informed by a number of inputs seeking to strengthen the fight against GBV in the context of the NSP.
The reduction of GBV is a priority for the Western Cape government. It supports strengthening legislation to support victims. It is victim centred. The proposals put forward are therefore revolutionary and transformative.
Its amendments examine substantive issues. The technical amendments relating to drafting are contained in its written submissions.
Mr Gaba presented the slides on the amendments to the Gender Based Violence Bills.
He said the amendments in the related Bills should take into account existing legislation and cross reference other legislation when necessary, to avoid unnecessary conflict.
He presented on how the Western Cape thought a ‘domestic relationship’ and ‘domestic violence’ should be defined, followed by insertions into the Bill on mandatory reporting, issuing final protection orders, and when the court is allowed to seize weapons. Mr Gaba outlined the Western Cape’s position on warrants of arrest.
The Chairperson told Mr Gaba he had five minutes left to present, and said other committee members should not intimidate people who are presenting.
(For full presentation, see attached document)
Mr X Nqola (ANC) said this was the only time the Committee had a submission by a sitting government. The Western Cape itself is at the centre of GBV incidents. It is making a submission which makes more sense. It must be the direct responsibility of the employer to vet its potential employees.
Mr Nqola said it was the duty of the employer to vet employees. In the Western Cape, in Cape Town in particular, there was an incident where allegations were made against a person, but this was only discovered after he committed femicide and GBV. This person should have been vetted. He said the responsibility to vet potential employees must be placed on employers. The Western Cape is becoming a centre for GBV, there are incidents which required intervention. Young women are being killed and raped in the Western Cape. He just wanted to check, beyond submissions, on the law making process.
Dr Newhoudt-Druchen noted how there are over 100 South African Police Service (SAPS) members charged with GBV. Police are in the line of duty and work with guns. She asked what can be done to those police officers who were charged with GBV, and what should be done with their guns.
Dr Newhoudt-Druchen said she noticed how the Western Cape’s presentation mentioned other forms of communication, such as augmented communications equipment to assist those who cannot mobilise. She considered this good, but was also concerned about children who are deaf, and adults who are deaf. The Courts told her there are interpreters, but the interpreters are not professional, or hired by the courts. Many judges and magistrates refuse to allow organisations for the deaf to come in, to enable deaf people and deaf children to understand. The Court and the Department of Justice should provide training to deaf auxillary workers who are already in the community, so these officials can be added to the courts.
Dr Newhoudt-Druchen also noted the Court sometimes throws out cases involving children because children struggle to express themselves. Children need time to express themselves, children need assistance from play therapists, for example. These children often cannot express themselves in the language the court requires.
The Chairperson noted how there were now members from other portfolio committees who arrived, and encouraged these Members to raise hands with questions.
Mr R Dyantyi (ANC) had three issues to raise. He welcomed the thrust of the presentation, as he saw how these amendments would lessen the burden on victims on a number of fronts. Sometimes more burdens are added to victims unintentionally because of the processes victims must follow. He therefore agrees with anything which goes toward making it easier for the victim.
Mr Dyantyi said as a Committee, it may have to look into these issues, provided Mr Gaba is very clear with his suggestions.
The second issue Mr Dyantyi wanted to address was his parliamentary constituency of Delft in the upper Western Cape. It is a mixed area of African and Coloured people. It is a beautiful set up, yet Delft is the number one murder station in the entire country. It occupies the number one spot. Out of the top 30, Delft is number one. Here is a community suffering from these kinds of pandemics. Members are consistently raising this, because Members were asked what else must be done to ensure society tackles these issues. Law on its own is not a solution. The Committee can fix this clause and that clause, but Mr Dyantyi said he wants to ask the Department, the Western Cape Government, to share if it is aware Delft is in this position, and to share its practical efforts beyond the laws.
Linked to this, Mr Dyantyi noted there is a programme called Watching Briefs. It is carried out by the Committee of Safety, which goes to Court, and follows cases. He said he is interested, firstly, because the collaboration with the Department of Social Development and Community Safety is important. This scourge needs co-ordination, collaboration, and resources to communities.
Those are his three points, otherwise he welcomes the presentation.
As a government working with civil society, Western Cape often speaks of a whole society approach. He said he would like to hear about this.
WC Government Responses
Concerning the question on what the Department is doing to address GBV in the Western Cape, Mr Gaba said in a recent study conducted by Commission for Gender Equality, it was found the Western Cape is doing reasonably well regarding response with its legislators. It was called upon to tighten up on its response for people with disabilities. It appreciates the Centres which were donated by the Department of Public Works to extend its footprint to rural areas.
Out of the 30 areas in the country leading with Gender Based Violence, eight are in the Western Cape. He agreed Delft is leading. People such as Minister Fernandez convene with people on the ground, and learns from those people, learnt there must be greater collaboration, and there is a strong link between GBV and socio-economic positions.
Mr Gaba said without a significant shift of resources to these areas, it cannot be expected legislation will achieve much. The idea is to use a district level approach, to deal with substance abuse, GBV, and poverty, so as to temper the situation. It is an integrated approach. He called for all the support the Department can muster. The Department is also going to collaborate with the Department of Community Safety to create safe spaces. Gangsterism is very high in the Western Cape. There is a need for officials to operate in these areas.
Concerning the representation of deaf people in the Department of Justice, he agreed his office must do its part to lobby its colleagues in the Department of Justice. A forum needs to address these issues. It will lobby for the issues of disability to become mainstream. It needs more government departments to do more, to address issues of disability. One issue is access. Building ramps is straightforward, but regarding interpretation, there will be challenges, and supporting victims in court. The Department agreed it needs to expand access.
Ms Goosen said there are a lot of cases involving police and members of society, who are guilty of GBV. 96 of those cases were thrown out by the court. The Department of Community Safety, through its Watching Briefs Programme, are following these cases as a priority, to see why it was thrown out. It will continue to lobby this. Part of it is the challenge regarding children and victims who feel threatened by the court process. Regarding SAPS members with guns, the Department is also concerned. Therefore, Community Safety took this up as a discussion point with the National Manager of Police for GBV Intervention in the province. The Department will keep track of this, and report back on it.
It is opening six new sites, donated by the National Department of Public Works. It is in the final stages of signing.
Regarding Delft as a priority area, based on the last criminal statistics, ten priority areas were identified, including Delft. Across all departments, it must come up with an intervention plan for total society approaches. This includes neighbourhood watch, watching briefs, cultural interventions, and human settlement interventions. This is a positive response.
Dr Newhoudt-Druchen asked about the six sites being developed. One will be Delft, and she asked where the others will be.
Ms M Khawula (EFF) made her input in another language [refer to 58:15 in the audio]
Mr Gaba answered Dr Newhoudt-Druchen’s question. He said Laingsburg, Helderberg, Moritzburg, Aurora, and Albertina, are some of the six sites.
It will launch these and request shelters around the metropole. It has the idea of non-governmental organisations (NGOs) on the ground, coming up to work in these areas, so as to take over the management of these centres. It is very difficult to run it from the metropole areas. The Department knows when the President addressed Houses of Parliament on the National Strategy Plan on GBV, the President made reference to cases not taken forward to the courts, and these cases should be reported. This incident falls into this category.
Mr Gaba said he will lobby his colleagues to re-address this issue. These cases take quite a long time. He hopes it will get the necessary attention.
Mr Gaba asked the Committee to invite the Department of Human Settlements to deal with this, as it is not within the Department’s scope and mandate. Mr Gaba’s Department has an understanding with the Department of Human Settlements to make housing available for people with special needs, for people exiting shelters, who are victims of GBV, and who opt for independent living. It will be prioritised as special needs housing. The Department was agreeable to this. Of course, this can be debated in municipalities, because according to the Constitution, demolishing houses and so forth, the interests of children must be at the forefront of minds.
The Chairperson highlighted how this was the last meeting where stakeholders would have an opportunity to present comments on the amendments.
Ms Khawula made her input in another language.
Mr Gaba said he will refer the matter to the Department of Community Services to expand its scope, to also look into the progress of these cases, so it does not remain dormant forever. The Department has resources in this regard, and will share this information.
The Chairperson said the Committee listened to all stakeholders, but also received lots of written submissions. As a Committee, it will give equal weight to oral and written submissions. He asked the Department be given enough time to go over this. The Committee received quality presentations, both oral and written. Those submissions will make a significant contribution to this particular bill. The Committee programme must be revised, so the Department has enough time to go through all which was raised. The Committee will devise the programme regarding when it will go through all the submissions, so it can begin, clause by clause.
The Committee must meet the deadline it set itself.
Ms Khawula made her input in another language.
Mr Dyantyi asked the Chairperson to keep order.
The Chairperson responded to Ms Khawula in another language.
Mr Dyantyi asked the Chairperson to stop this Member from speaking.
The Chairperson said Members must allow the Chairperson to chair the meeting. He thought Ms Khawula had now sufficiently understood the process, as he explained it.
The Chairperson said the Committee will communicate the revised programme regarding when the Committee will meet. The Chairperson will meet with the Secretariat to arrange the revised programme before the Bill is finalised. It needs the accounting officers, the Director-General’s of Health, Education, Higher Education, Police, Justice, and Social Development to co-ordinate on this.
The Chairperson said this is what was agreed, and the mentioned departments will be invited to present on its state of readiness. By Friday, the Committee should be in a position to communicate its revised programme, so it can meet its self-imposed deadlines.
The Chairperson moved to the last item on the meeting’s agenda. There is a request to make some amendments to legal practice. He asked Mr Dyantyi if he would like to lead on this agenda item as he suggested it.
Mr Dyantyi proposed the Committee seeks leave from the House to proceed with a Committee Bill to the South African Law Reform Commission.
The Chairperson asked for someone to second this proposal.
Dr Newhoudt-Druchen seconded it.
As there was no objection, the Chairperson asked the House to give permission to proceed with the Bill. The Committee Secretariat and Research Unit will work with the parliamentary legal advisers to process the Bill.
The Chairperson thanked the Committee, and the meeting was adjourned.