Gender-Based Violence Bills: deliberations

Justice and Correctional Services

11 November 2020

Documents:

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 

Summary of Written Submissions and Responses: Criminal and Related Matters Amendment Bill [B 17- 2020]

Mr Robbertse Presentation

Responses on Domestic Violence Amendment Bill

Meeting Summary

Video: Portfolio Committee on Justice and Correctional Services

 

In this virtual meeting, the Department of Justice and Correctional Services briefed the Committee on the responses received on the Domestic Violence Amendment Bill, and the Criminal and Related Matters Bill. The Chairperson requested the Department to create texts for the respective Bills with the possible variations to clauses according to the submissions and comments made, so that the Committee could deliberate on them.

The Committee was advised that there was a possibility that the Domestic Violence Amendment Bill may fall short of constitutional obligations on the grounds of current authority. The basis of the Bill was on previous rulings, but until the Constitutional Court established its position, there was no certainty on whether it would fall short of the constitutional obligations. The State Law Advisor’s view was that the Bill was constitutional, and the National Prosecuting Authority was of the opinion that section 316b was constitutional in its amended form.

The written submission and responses to the Criminal and Related Matters Bill were presented in a page-by-page fashion, and no discussion ensued.

Meeting report

Responses on Criminal and Related Matters Amendment Bill [B17-2020]

Mr Sarel Robbertse, Senior State Law Advisor, Department of Justice and Constitutional Development (DoJ&CD) went through the comments that had been received on the Bill.


Intermediaries

Enquiry into the competence of an intermediary should include an enquiry into whether the intermediary had a sexual offence record. This was open-ended by virtue of the words, "include but was not limited to." This would include whether a person had a sexual offences record.


Provision should be made for a review of the decision by a court. It was agreed that in many instances the underlying conditions, as contemplated in the respective provisions, would become apparent only when a person gave evidence. The proposed amendments were to add that “a court may, on application, if it was satisfied that there was any material change in respect of any fact or circumstance which influenced the refusal contemplatedreview this decision”.
 

Right of complainant to make representations in certain matters with regard to placement on parole, on day parole, or under correctional supervision

The amendment was mostly supported by the commentators. As indicated in the comments and responses document, shortcomings in respect of parole must be addressed in terms of the Correctional Services Act, 1998, and not the Criminal Procedure Act (CPA). Section 299A (1) of the CPA had been amended, among others, to provide that where a court sentenced a person to imprisonment for a period exceeding seven years for any offence which that person committed against any person in a domestic relationship, the court it must inform the complainant that he or she had a right to make representations when placement of the prisoner on parole was considered. Various commentators had questioned the seven years’ qualification.


Appeal against sentence of superior court

This provision was intended to maintain the common law principle of limiting the right of appeal by the State, in that the State was not given a free and endless right of appeal, but limiting the right to cases where injustice may result if the State was not afforded the right of appeal. However, Legal Aid SA, relying on the judgment in the Director of Public Prosecutions (DPP) Western Cape v Kock 2016 (1) SACR 539 (SCA) at 8 – 10 and 19 – 20 (the accused should not be exposed to an increase in his sentence after the trial), had indicated that they could not support the amendment.

Attempted murder – Part II of Schedule 2

Legal Aid SA was of opinion that there could be no justification to place attempted murder on the same footing as the completed offence. Where the minimum sentence for murder, other than contemplated in Part I, was 15 years’ imprisonment, the sentence for the attempted offence should not be the same.
 

Life imprisonment – rape/compelled rape

Embrace Project was of the opinion that rape, and compelled rape, as contemplated in Part II of Schedule 2, was due to their severity not catered for adequately, and that minimum sentences of life imprisonment should be imposed in respect thereof.

(For a full summary of the submissions, see attached documents)
 

Discussion

Adv G Breytenbach (DA) said that attempted murder and murder should be treated the same way, as the intention of murder was there in both cases.


Ms N Maseko-Jele (ANC) asked what the definition of a “dangerous wound” was. What was the reason for this differentiation?

 

Mr W Horn (DA) said that Mr Robbertse had indicated that some amendments may fall short of the Constitution of South Africa, although the Department was fairly confident that it would not. This kind of advice did not assist the Committee, as it was its duty to strengthen legislative frameworks and uphold the Constitution. He asked for firm advice to be provided, as it was not proper for the Department to expect Parliament to make laws which it was not confident would pass Constitutional guidelines.

Response

Mr Robbertse said that section 316b included the submission of the Department. Sometimes when law was made where there were established legal principles, and these principles were changed, there was a possibility that a court may declare that it fell short of the Constitutional obligation or certain constitutional rights, on the grounds of current authority. Legal Aid South Africa had advised the Department that there was case law to the effect that held that old legal principles were still applicable. Thus, the Department may go as far as changing the long-established principle. Until the Constitutional Court established its position, there was no certainty. The State Law Adviser held the view that the Bill was constitutional. The National Prosecuting Authority (NPA) was of the opinion that section 316b was constitutional in its amended form. The Department was not intentionally misleading Parliament -- it had done everything possible to ensure that it was correct, and what was brought forward to Parliament was constitutional.

The Chairperson asked Mr Robbertse to clarify if the first decision on which Legal Aid South Africa had based its response had come from the Cape High Court? Was the Department relying on a recent court judgment by the Supreme Court of Appeal? According to the Department, there was no judgment made by a court higher than the Supreme Court, so was it correct that this decision was a binding judgment?

 

Mr Robbertse stated that the first judgment had been the case of the Western Cape versus De Kock, who was the Director of Public Prosecutions. This had been an Appeal Court case. The second judgment had been the Ramolefe judgment. The reference was 2019 ZASPA 60, which was an Appeal Court case.

He said that murder with aggravating circumstances was part one of schedule two of the Criminal Procedure Act, which was considered a serious offence.  Schedule two also included murder, which differed from murder in part one of schedule two. In part two of the Act, attempted murder had been inserted. The less serious form of murder fell in part two, in the same schedule as attempted murder. He agreed that attempted murder was murder, and there were degrees of both. A possible solution would be to clarify murder with aggravated circumstances with the word's “murder” and “attempted murder,” so that it would apply to the serious form of murder. If someone was convicted for the attempt to commit that form of murder, the person would be subjected to a minimum sentence. Attempted murder may be moved from part two of schedule two offences, to part three.  However, this was not an adequate solution. Murder in part two of schedule two could be clarified as murder or attempted murder in part one. This would also solve the issue.

The Chairperson suggested that these options must be presented to the Committee when the actual texts of the Act were brought forward.

Mr Robbertse said that the new definition of “serious wounds”, which was found throughout the Act, was defined as a wound that was not an ordinary wound but one that was life threatening -- but not as far as attempted murder. This definition had been interpreted by the courts; it must be an open wound. A concern that had been raised was that assault which inflicted grievous bodily harm was not in schedule one of the Act. However, grievous boldly harm had also been interpreted as something that may include the infliction of a dangerous wound, but it may also include something like an overdose of a substance and not only a dangerous wound.
 

The Chairperson said that the Committee must consider what Mr Horn had raised in its deliberations.

 

Follow up discussion

Ms Maseko-Jele asked how internal wounds would be classified, considering that bite marks or bruised eyes may have internal bleeding?

Ms J Mofokeng (ANC) said that the amendment to the rights of a complainant to make representation in certain matters was widely accepted by commentators. It had been commented that the shortcomings of parole must be addressed in terms of the Correctional Services Act, and not the Criminal Procedure Act section 299A. It had also been stated that various commentators had questioned the seven-year imprisonment period. Were there suggestions of an acceptable number of years? What had been advised?

Response

Mr Robbertse replied that the various definitions of assault in the CPA had taken into account the example where a person was injured, but there was no physical evidence in the form of a wound, and this was considered as grievous bodily harm. For example, where someone had been inflicted with a bruised eye, it could be argued that the person had the intention of inflicting grievous bodily harm.

During public submissions, there had been a submission by the Catholic Church that the period must be between four and five years. Legal Aid South Africa’s submission was to the effect of direct imprisonment. Section 299A of the CPA reflected relatively serious cases. Some offences in domestic relationships were considered serious offences, such as rape and murder. In such instances, it was easier to manage, but in some cases offences were less serious, and a court would then impose a six-month imprisonment for the offence. This had posed the issue that it could not be determined too low, since it was subject to parole proceedings, and it could not be determined as directly in line with what was in section 299A. Further research would be done in this regard, and amendments would be made with motivation. A solution would also be looked into regarding the seven-year imprisonment period.
 

Follow up Discussion

The Chairperson stated that the Committee had received complaints that a magistrate in KZN had sentenced a father to five years’ imprisonment for raping his child. There were allegations of other sentences that were horrifying. In Magistrate Courts one would find outcomes such as this, where serious offences did not receive adequate sentences. Cases in the Magistrate Courts were not reported like cases in the High Court, and the majority of cases end up at the Magistrates Court. This was troubling.

Mr Horn said that Committee would need to embrace its duty to pass constitutionally compliant legislation. A Constitutional Court case had been mentioned at a previous meeting that had an impact on regulations. He asked for this case reference to be sent to the Committee. The Committee should seek counsel from Parliament’s legal services on complex matters relating to this.

Dr W Newhoudt-Druchen (ANC) asked the Department to send the link to its research on the developing the Bill.

The Chairperson asked the Department to prepare a text that the Committee may deliberate on with the various options for clauses that were being contested.

Response on Domestic Violence Act Amendment Bill [B20-2020]

Ms Dellene Clark, State Law Adviser, DOJCD, said there had been overwhelming support for the majority of the submissions made by the Department in favour of the Domestic Violence Act. The police had indicated its support for the Bill, and a bilateral meeting would commence soon.

 (See attached document for all the responses received)
 

Discussion

Mr Horn asked what the amended approach to the mandatory reporting of domestic violence was. Should it be considered that an obligation be placed on the reporting of all domestic violence, or in line with the amended proposal, with failure to report on situations where minors were affected? Perhaps only failure to report incidents involving minors should be criminalized. This could send out a strong message that it was expected of people with knowledge of domestic violence not to turn a blind eye. Had this been considered by the Department? If not, would the Department consider it?

Ms Mofokeng said that Women’s Legal Aid did not support the mandatory reporting of GBV, but the Department had quoted in its presentation that they had supported it. This needed to be changed. The Department had stated that financial or economical abuse may affect children in the household, but in some cases there was a parent that took care of the household and was not paid in any form. She supported the Warrior Project and its stance on emotional pain that caused harm. There was no observation that the clerk of the court’s warrants of arrest had to be forwarded to the complainant. The Department had stated that this could form part of the directives for the training of social workers. This was potentially problematic, as there were existing challenges in training social workers and the police as it was. An additional mechanism needed to be introduced. Interim protection orders that were granted on the spot should be discussed by the Committee. South African Women in Dialogue (SAWID), and the mandatory arrest for physical violence, also needed to be flagged for further discussion. The withdrawal of protection orders needed to be looked into, because people may be coerced to withdraw by their families, and often the person ended up being harmed. This then reversed the work done by SAPS.
 

The Chairperson said that Secretariat should create another letter to the Chief Whip and the House Chairperson for the Committee to meet during the sitting so that the Bill may be worked on.

He thanked those involved for their contributions to the Bill. The Committee was determined to work longer and harder hours to ensure that this Bill was passed soon while being of the best quality and meeting constitutional guidelines.

The meeting was adjourned