Kohler Barnard Fund for Victims of Violent Crime Bill: discussion

PRIVATE MEMBERS’ LEGISLATIVE PROPOSALS AND SPECIAL PETITIONS: STANDING COMMITTEE
31 August 2007
KOHLER BARNARD FUND FOR VICTIMS OF VIOLENT CRIME BILL: DISCUSSION

Acting Chairperson Mr S Mshudulu (ANC)

Relevant Documents:
Presentation to Standing Committee on Private Members’ Legislative Proposals and Special Petitions:
Service Charter for Victims of Crime
National Prosecuting Authority: Presentation 30 August 2007
Service Charter for Victims of Crime in South Africa: your Rights as a Victim of Crime

Audio recording of meeting

SUMMARY
The Committee, at its previous meeting, had decided that Departments should address Members further on the particular challenges the proposed Bill presented, which seemed to be international issues as well. Almost all parties had felt that the proposed Bill was premature. Members had requested more information about what was being done by different departments at present. The Department of Justice reiterated that the Bill was premature. There were no reliable information management systems at present to find or count the victims. There was a need to strengthen the criminal justice system, but it believed this must be done through a corrective, inter sectoral and holistic approach, pulling together the Victim Empowerment Programme, and the Victims’ Charter, through the Developing Committee which was part of the Justice Cluster initiative. The content and effect of the Victims’ Charter were outlined. The Department conceded that it was still working on the issues, but was conducting workshops, and using a web site and radio stations that would reach the people in the rural areas as part of the information campaign.

The National Prosecuting Authority confirmed that it had moved away from the traditional approach and now put the victim at the centre of operations. Its work was also focused on crime prevention and community justice, and worked with the Police Services to improve investigation. It agreed with the remarks of the Human Rights Commission that better quality service was vital.

Members were still concerned with the cost implications of the Bill and the fact that these costs were not able to be readily assessed at present. Members questioned what was actually available to victims, and whether there was provision for payment of general or special damages. Comments were made on the importance of the outreach programme, the methods of communication, the need to involve Correctional Services also in the shift of focus, the problems of secondary victimisation, and the possible time frames for reconsideration of the issue after the research had been done. Concerns were expressed that the proposal could divert funds away from crime prevention, the relationships between criminal justice partnerships and the Chapter 9 institutions, monitoring of the Sexual Offences Court, how best to achieve synergy, and the domestic violence training manual. .The relationship with traditional leaders, the indicators for service delivery, the geographical spread of Sexual Offences Court, and the strength of awareness campaigns were also raised.
It was agreed that the Departments would submit brief comments and responses to the Committee, including the issue of special and general damages

MINUTES
Mr Mshudulu announced that Ms Mentor had asked him to chair the meeting. She was not present at the previous meeting and he would recap on last week’s progress. He stated that although there was not yet a quorum, the presenters could table their progress reports and further comments, in the hope that there would be sufficient quorum later. He welcomed the State Law Advisor(SLA) and the National Prosecuting Authority (NPA).

Ms P Mentor (ANC) thanked Mr Mshudulu for chairing last week’s meeting, and apologised that she was still ill. She stated that she was disappointed that only five members had attended the last week's meeting, despite her personal calls asking for attendance. She stated firmly that she would name and shame those who did not, without due apology, attend meetings.

Kohler Barnard Fund for Victims of Violent Crime Bill: Deliberations
Ms Mentor noted that the Bill could have horrendous costs to the State. One department had noted that the member who proposed it had under estimated the cost. The committee could reject the bill on the basis that the Member had suggested there would not be any cost to the State, when clearly the costs could be huge.
The proposing Member had been very open and honest and had indicated to the Committee that this matter was before Cabinet in a similar way. Ms Mentor asked her whether she had embargoed Cabinet for that information, because until Cabinet published issues openly they were confidential. If the Bill was before Cabinet that would have a bearing on how the Committee could undertake the process.

Adv P Swart (DA) noted that there were remarks about the financial implications on page 6 of the proposal. In addition paragraph 2 of the proposal also mentioned funds being deposited.

Adv Swart clarified that the document before Cabinet was the report from the South African Law Reform Commission (SALRC) and that document was not available to the Committee.

Ms Mentor disagreed, and suggested she and Mr Swart listen to the audio recordings, which recorded that the Member had said this matter was before Cabinet. She referred to point 4.3 on page 3. Ms Mentor had asked the proposing Member how she had gained access to the quoted information: "the Victims Charter which has been endorsed by Cabinet and is in the process of being implemented". Ms Mentor had believed that the Cabinet decision would have a bearing. She did understand that the Committee must listen to and decide on the proposals, but stressed that it would also would have to consider how far apart this proposal might be to what was before Cabinet.

The Acting Chairperson noted that the Department of Justice would lead the Committee deliberations with a presentation on the Victim's Charter. The Committee, at its previous meeting, had agreed that the country was facing a challenge, which was also an international challenge. It was also clear that no one had a direct solution but nearly all parties felt that this proposal was premature. There was also an indication that there was a need to be informed by all departments what they were doing about this problem.

Representations tabled by the sponsor affirmed the synergy between her presentation and the remarks made by the Departments. The Secretary had done a good job in researching the vehicles government already had to assist. At the last meeting it was suggested that the SA Police Services (SAPS) and Government Communication and Information Systems (GCIS) must also be part of the team, as there was a need for coordination across all three tiers of government, across departments, and between national and provincial offices. Although Departments would not normally be asked to present more than once, all Members had agreed that it would be useful to have an opportunity to take control of this challenge. The Department of Justice had indicated that there was already the process of the Victim's Charter. He requested that every stakeholder summarise and table their documented information.

Department of Justice
Ms Shireen Said, Chief Director, Department of Justice and CD, tabled a presentation giving a background to the Service Charter for Victims of Crime (commonly known as the Victims' Charter), noting that it was based on international standards. The Department had adopted an inter sectoral approach as government had been very fragmented. As human rights were at issues, it was impossible to confine this only to one department. The Charter was an international standard adopted almost universally, and with the minimum change to contextualise it for South Africa. The reason why she had mentioned this background was that it differed from other systems, such as the Public Finance Management Act (PFMA), where each department was individually accountable. In the Joint Sitting of Parliament in 2004, government made a commitment to finalise the Victims' Charter, and Cabinet approved this Charter on 1 December 2004. An interdepartmental committee was formed, which was located in the office of the Director General of the Department of Justice. This was then established at national level to facilitate implementation, monitoring and evaluation of the Victims' Charter. The Committee comprised the Departments of Correctional Services, Health, Social Development, Education, the National Prosecuting Authority, SAPS, as well as the two Chapter 9 Institutions of the SA Human Rights Commission and the Commission for Gender Equality. These provided a monitoring and evaluation element to the implementation of the Charter.

Ms Said described the Charter, which aimed to reduce secondary victimisation of victims in the criminal justice system, ensure that they were central to the criminal justice process and ensure therapeutic interventions. It strengthened the balance of interest, and served as an advocacy tool for those working with victims of crime.

The progress to date was tabled, and this included translation into all official languages and Braille, a d general outreach programme, a web page and training of over 2 000 Department of Justice officials. Public comments on it were submitted in May 2007 and there had been a provincial summit this year.

Ms Said summarised the challenges as a lack of knowledge of the rights-based standards, the systemic history of the Departments' approaches to programming and the need for a paradigm shift from adversarial approach to therapeutic Criminal Justice System. gave an overview of the presentation. Prevention was another challenge, as it was so dependent on socio-economic aspects. The Department considered it premature at this stage, in view of lack of information management systems, to try to measure the number of victims, and how to find them.

Although the DOJ supported the SA Human Rights Commission (SAHRC) views on the need to reinforce and strengthen the Criminal Justice System, the strategy must be corrective, inter sectoral and holistic. The Victim Empowerment Programme (VEP) must be allied to social development, through the Developing Committee that was part of the Justice Cluster initiative. The VEP could be seen as the policy and the Charter the framework.

Discussion
Adv Swart asked for clarification. He noted that the proposal before the Committee made provision for the setting up of a compensation fund for the victims of violent crimes. The Victims' Charter addressed the issue in a different way - by the judges who tried the criminal matter having the right to award, in addition to the sentence, compensation by the perpetrator to the victim for loss or damage to property. He pointed out that in respect of an accident caused by negligent driving, the offender could be charged in the criminal court, but in addition the Road Accident Fund (using taxpayers' money in a public fund) could award compensation to the victim, who may have been rendered paraplegic. If a violent criminal were to shoot a passer--by, and render him paraplegic, then the Court trying the offender could only give compensation to the victim for loss of property. There would be no compensation for medical costs, loss of income, pain and suffering. He could not find a correlation between the Victims' Charter and this proposal, as nothing in the Charter nor any other legislation in fact was giving the kind of compensation that he had described in respect of the Road Accident Fund. He asked if there was anything before Cabinet or the Department to look at compensation for the personal physical damages, pain and suffering and loss of income.

Ms S Rajbally (IFP) noted that the outreach programme was very important. She asked what the community involvement was and how far the Department had gone with the outreach programmes. It was clear, from the questions posed to politicians in their constituencies, that people were unaware of what their rights were and where they could get assistance. She asked if the Department put information in free local newspapers, which did reach the poorest sector. She raised the point that victims who shied away from compensation ran the risk of being re-victimised.

Mr A Ainslie (ANC) understood that the compensation referred to in the Charter was compensation ordered against the perpetrator of the crime, after conviction, and not compensation from the State. He asked what happened if the perpetrator, when convicted, was found to be without any assets at all. He added that members must be very careful in referring to the Road Accident Fund, which had been prey to enormous technical abuse.

Ms M Manana (ANC), was satisfied with the Department's approach. Although she understood the challenges, they were heading in the right direction, and the inter sectoral approach would be able to coordinate the strategies, whose lack of implementation had been a problem, into legislation. She was rather concerned when talking about an inter sectoral approach as to how the budget would be distributed. She was pleased to note how far the community participation went, especially the use of radio.

Ms Mentor noted that the paradigm shift referred to should also involve the Correctional Services. This paradigm shift must encompass them. She noted that there was a responsibility to teach both victims and offenders about the rights and responsibilities of victims. It must touch also on the need for rehabilitation.

Ms Mentor added that there was a further question of secondary victimisation; a recent case had come to her attention where a complainant was interrogated to a point where she collapsed. The question of secondary victimisation did not only arise in court, but this must be considered by non governmental organisations and community based organisations.

Ms Mentor said that she had raised with the proposer the fact that the compensation could be framed in forms other than pure monetary compensation. She agreed that the proposed bill was premature. The Department of Justice needed to formulate both monetary and other forms of compensation, across all systems and departments, to assess where the victims could best be assisted. Human rights issues also needed further discussion. Whether the perception that offenders were getting too much attention at the expense of victims was correct or not, it must be heard. An outreach programme would also assist.

Mr Mshudulu wondered if the media campaign could take into account the whereabouts of the Members, so that they too could add to the efforts by sensitising their constituents to link in with discussion of the issues.

Ms Said responded that the Department considered the Bill was premature because the Department was re-evaluating different kinds of compensation. Once consolidated it would then come up with the necessary legislative proposal. She noted the comments had been noted but she was not able to give a direct response as to how a compensation fund might look or be run. She added that the best approach to implementation of the Victims’ Charter must also be found, and this involved consideration of international standards and a phased approach. Once the assessment was done, there would be emphasis on training their own personnel to avoid the situation where personnel would respond to issues directly without taking into account the context or culture of human rights inculcated. The legislative proposal would at some point tell exactly how to take matters forward.

Ms Said respectfully disagreed with some comments made by Members on violent crime; it was not necessarily linked to gender violence. Although the impact was often on women and children, legal systems across the world often did not look at the gender aspects of trauma, nor the economic statistics of those committing the crimes, emotional injury and related aspects.

Many points had been raised on the outreach programme, and she noted the suggestions and conceded that more could be included in the programme of action. Radio did seem to reach the largest target audience, especially in view of low literacy levels. Different programmes adopted different methods and implementers; Department of Justice, for instance, used NGOs as the core trainers, with the Department facilitating. Feedback on the impact of training would be given. This method had been used, for instance for family violence and domestic violence matters. Some provinces had moved further than others. Some training for staff was done at Justice College, which, although originally training magistrates only, had now extended their focus to court personnel in general, and were offering a range of programmes. Debriefing of personnel working with victims of violence was improving service levels.

The Victims Charter Monitoring Committee reported to the Development Committee, which in turn was part of the bigger Justice Cluster that reported to the Cabinet. The inter sectoral approach helped to prevent blockages, issues of criminal justice were deliberated on a monthly basis, bureaucratic red tape decisions could be made there and then and implemented immediately, and prioritisation could be done. There were both an implementation budget and a policy orientation budget.

Mr Mshudulu noted that he had been concerned that some Departmental websites were not being kept up to date, and asked if DOJ’s website contained this information.

Adv Swart remarked that the Committee, hearing about processes, always asked about time frames. Eventually there must be discussion of when it would be appropriate to discuss these matters. He asked for an indication of the time frame, as victims could not be expected to sit and wait.

Ms Said responded that this was under way; the Departments would have to consult with all colleagues from the Legislation Unit.

The Acting Chairperson suggested that the Committee could write and ask Ministers for their departments’ programmes. Committees such as this were bound by parliamentary schedules and had their own time frames. If there was a grey area, it would like a Minister to respond directly to this Committee on dates. The Committee would also need to confer with the sponsor.

National Prosecuting Authority (NPA) Briefing
The presentation was circulated.
Mr Rodney de Kock, Director of Public Prosecutions, Western Cape, focused on the services that NPA could provide to victims of crime. In the context of the broader transformation programme of the NPA, his presentation touched on the strategic mapping process, which set out the direction the NPA saw itself following over the next ten to fifteen years. The NPA’s transformation was designed in such a way that they did not focus so much on the short term, although obviously it had yearly business plans, but rather took a longer term view of what it must do to transform all services, including staff and their service delivery to victims of crime.

The mission statement of NPA now reflected the victim at the centre of the work done. Prosecutors, in their training, were made acutely aware that the services that they rendered were for the victim, and they must inform the victim at all times of what was happening. Prosecutors were sensitised on a daily basis that the victim was at the centre of their work, so that prosecutors were in a sense lawyers for the people.

NPA had also departed from the traditional prosecutorial role, and now contributed far more to crime prevention and community justice. It worked more closely with SAPS to ensure quality investigation, while still pursuing the ideal of dealing with cases more efficiently

Special initiatives included the important issue of violence against women and children, and NPA had a national unit focusing on sexual offences.

Discussion
Adv Swart really appreciated the work the NPA was doing, and commented on the good briefing. He was pleased to hear about centring the victim. He wondered whether adoption of this Bill would actually be enormous financial pressure on the budgets, and taking money away from crime prevention. He asked whether NPA agreed with the Department of Justice that the bill was premature at this stage, in including compensation for medical and other costs from a national fund.

Mr de Kock responded that everyone was in agreement that victims of crime needed support and compensation, and currently there was provision for compensation for such victims. The issue was whether the State should be liable for that compensation. That was the context in which, according to his understanding, the DOJ had indicated that if felt the legislation was premature, and that further research was needed on the potential impact to the State, and the necessary mechanisms to deal with the challenge. NPA aligned itself with DOJ’s views, although he stressed that NPA would welcome any initiative that would support the victims of crime, if the country could afford it and fully understand the implications.

Adv Swart felt that there was a need for more clarity as to what could be done for a victim of violent crime. Using the example of a rape, he noted that there was violence, often involving serious physical injuries, but also severe psychological injuries and damage, and even the possibility of future medical costs for injuries caused by the rape. He asked what was the current situation for such a victim, what type of medical cover was available, both for the present and the future expenses, who paid for it, and whether there could still be access to psychological treatment years later.

Ms Mentor noted that rape, by definition, was always a violent crime.

Mr de Kock felt that there was a general appreciation of all that a rape victim suffered, and this was why the Departments had tried to design their programme to cover all aspects. Thutuzela Centres were the model that tried to centralise all support systems and address all the victim’s needs. There was also recognition that more must be done in this area, and more centres must be created. A victim would suffer huge trauma. Currently, if the perpetrator did not have the financial means to compensate the victim, then there would be no compensation. NPA believed that the victim needed more than just financial compensation. SAHRC, in its presentation, reported that victims had indicated that they did not necessarily want financial compensation but better quality services. Departments needed to work more closely together to ensure that these were available, and that the officials were better sensitised.

Ms Manana asked how criminal justice partnerships and clusters would relate to the Chapter 9 Institutions, in particular the SAHRC and the Commission on Gender Equality (CGE), and in particular on issues such as domestic violence and sexual harassment. She asked how synergy could be achieved.

Mr de Kock believed that that kind of interaction did happen at a national level and in the national committees.

Ms Manana asked also about the Integrated Domestic Violence Training Manual.

Mr de Kock said that he would imagine there had been engagement between the drafters and the relevant stakeholders prior to the drafting. The manual was specifically directed at training of prosecutors and was not intended for the broader society. It tried to focus prosecutors on the issues around domestic violence and how best to deal with that. He would raise the concern that there were gaps to be addressed.

Ms Manana further asked about monitoring of matters through the Sexual Offences Court, and believed that the CGE or the SAHRC would be the most suitable institutions. She asked if there were any mechanisms to increase the reporting rate.

Mr de Kock said that there were provincial oversight committees to ensure that the work of these courts was happening as it should. All relevant stakeholders, including NGO’s, were supposed to participate to ensure that monitoring and evaluation happened consistently. There was also a National Oversight Committee, whose work included looking at policy, coordination, and further expansion of the Sexual Offences Courts throughout the country and the Thutuzela centres. These were national structures, but he would raise the concern that some important institutions might not be represented.

Mr Ainslie felt that the most important points were the contribution to better crime investigations, and dealing with cases efficiently and effectively. He asked whether there had been progress in achieving these three deliverables.

Mr Mshudulu referred to outreach and asked what programmes were in place in the traditional areas, where Traditional Leaders had responsibility over those areas.

Mr de Kock responded that the NPA had ensured there was collaboration with the Traditional Leaders, and had established a forum with them, looking at issues of domestic violence, violence against women and children in the rural and urban areas. That was ongoing work but they had forged links.

He added that much of the work done by the NPA, particularly around sexual offences, was designed to ensure that there was better reporting. There were workshops and outreaches, public education through visits to schools and explanation of the processes. If there was a better quality service, then people would come forward more freely to report, be able to get the necessary support, and secondary victimisation (in respect of violence against women and children) would be reduced. This was all in the strategy, but it was recognised that there was still far to go.

Mr de Kock said that indicators had been developed in respect of all the areas of the NPA’s work. They tried to measure the actual hours that the courts sat, the conviction rates, and the cycle times. The targets were that 75% of the cases in district courts should be finalised within six months; 75% of the regional court cases should be finalised within nine months; and 75% of the cases in the High Court should be finalised within twelve months. There had been progress but there was still a lot of work to be done. NPA was dealing with a lot of backlogs in the courts, but the Backlog Projects under the leadership of the DOJ were working in certain identified areas to try to reduce the backlogs.

NPA took the view that a reduction in crime would result in fewer cases in the system, which would make the caseload more manageable and improve services – hence its focus on crime prevention. Staff were working under tremendous pressure, particularly in the lower courts. One prosecutor in a district court sometimes had to manage fifty to sixty cases on the court roll. There was not time to engage adequately with victims or with witnesses. Performance agreements were now in place with every prosecutor, and their roles were more clearly defined. There were challenges, and NPA clearly needed still to do more.

Ms Rajbally referred to the 61 Sexual Offences Courts, and asked if all nine provinces were covered.

Mr de Kock responded that the 61 Sexual Offences Courts were throughout all the provinces. He would have to confirm the spread of the 10 Thutuzela Centres.

Ms Rajbally noted that the awareness campaign was also tied in to the Thutuzela Care Centres. She said that awareness campaigns could create tremendous pressure, as in the international protests against the imposition of a Sharia law death sentence on an adulterous woman, but not on an adulterous man. There was a need to make perpetrators fully aware of what steps would be taken against them, as a preventative measure.

Mr de Kock noted that prevention of crimes through education was important. Much of the other preventative work was already covered in the work of the National Institute for Crime and Rehabilitation of Offenders (NICRO). The work of the NPA was not really directed at the perpetrators, but the focus was on serving the needs of the victims, although there was an argument that the perpetrator also needed to be served. In terms of the Constitution the rights of the perpetrator were respected and guaranteed, but NPA would not render a service as such. National Anti Rape Strategy also had work in progress. Faith-based organisations, NGOs, and CBOs should really be represented. Prevention was a difficult topic, and many interventions had tended to be ad hoc. He was not sure how far the process was nationally, but he agreed that it would be useful to see if there was adequate representation to serve the needs of the whole country through a synergised approach, based on the National Crime Prevention Strategy.

Mr Mshudulu asked whether there was possibility for the clusters to draft a questionnaire on all the issues raised here, as this would help in constituency work in the various sectors.

Adv Swart said he still had some unanswered questions. He asked for clarity on the situation where a perpetrator who had been shot, in the course of arrest, would receive immediate medical attention while the victim might be ignored or told to call a private ambulance. He did not believe enough was available for the innocent victim. He did not believe that those victims saying they did not want compensation understood what this entailed. There was a need to look at general and at special damages. He wondered if any victim would not say he did not want his medical treatment covered, either immediately, or to have reconstructive surgery, say, at a later stage. He had also raised the query about psychological trauma and treatment. He understood there could at this stage be no compensation for loss of earnings, but asked what medical expenses could be paid.

The Acting Chairperson said there was another way to address some of those concerns. He queried whether the NPA website was updated, to provide the information required by the Committee. He asked Mr de Kock to reply in writing to Mr Swart’s concerns before next Tuesday, when the Committee would be deciding on the issues. There were clearly some grey areas.

Ms Said said, in closing, that many points, such as the programmes available, could not be covered in this briefing, and she too would welcome the opportunity to address the Committee further in writing. She commented that the implementation plans of each Department for the Victims’ Charter were tied in to budgets and time periods. She had noted areas for improvement, in particular the need to synergise on communication, which she conceded had not always been that effective.

Mr de Kock confirmed he would provide further clarity. The Department of Health could probably best comment on the health services available for victims. He did not think there was a distinction between the level of services offered to perpetrator and victim when it came to health services, and if either qualified for free state services these must be provided.

The Acting Chairperson would like every department to respond directly to the Bill in writing. The Committee was free to accept or reject their views, but appreciated that their involvement would assist the process. Their comments would also be useful for the information of the proposer of the Bill.

Ms Mentor commented that the presentations had greatly eased the process, and had clearly indicated that the thrust of the matter was not whether victims should be supported, but about whether the State should be liable for such support. She related her personal experience as victim of an attempted rape, when she had been badly assaulted and suffered both physical and mental anguish that had affected her, her family and the pupils she taught, as she had become dysfunctional. She wondered if she would have been compensated for this suffering and trauma by the State, as it had been an attempted rape. This also did not touch the issue of compensation to others who were affected. She would not like to undermine the concept of compensation for victims, but urged the Committee to consider all the ramifications and appreciate the serious nature of this proposal.

Ms Mentor appreciated the synergy between the Department of Justice and the efforts of the NPA, but agreed that they would need to do more work. Crime prevention, training and time frames were crucial issues. She fully endorsed the comment about the need for time frames, as the Committee and proposer would need to know this. The Committee would need to hear from both departments and Ministers, and Cabinet would need to comment whether it could support another fund in addition to what was already available.

Adv Swart said that if departments were to remark specifically on compensation, they should differentiate between general and special damages. The Bill may be premature, but he felt that victims should be entitled to certain damages in any event.

Ms Mentor suggested that Adv Swart to draft a letter setting out the issues to which the departments should respond.

The Acting Chairperson proposed that the Department of Justice should make copies of the Victims’ Charter available to all members.

Other business
Ms Mentor informed the Committee that she was unwilling to submit the programme until approved. Although an electronic signature had been attached, Parliament had apparently declined to accept this.

The meeting was adjourned.