COMMISSION ON GENDER EQUALITY
DOMESTIC VIOLENCE BILL
SUBMISSION TO THE JUSTICE PORTFOLIO COMMITTEE
17 AUGUST 1998

INTRODUCTION
The Commission on Gender Equality (CGE) is an independent, statutory body established in terms of Section 187 of the Constitution of South Africa, Act 108 of 1996.

The role and objectives of the CGE is to promote respect for gender equality and the protection, development and attainment of gender equality and the improvement of the status of women. The powers and functions of the CGE are detailed in the Commission on Gender Equality Act 29 of 1996. In terms of Section 11(1) of this Act, the CGE must, inter alia, evaluate any law proposed by Parliament, affecting or likely to affect the gender equality, or the status of women, and make recommendations with regards thereto.

The CGE is committed to the eradication of violence against women, especially violence within the domestic sphere.

EXECUTIVE SUMMARY
In principle, the CGE welcomes the Domestic Violence Bill, with its objectives to end domestic violence, and specifically the legal relief it intends affording to the victims of domestic violence. For the CGE the most crucial aspect of the Bill is the protection it accords women. The CGE further applauds the Bill in that it promotes the eradication of traditional, religious and societal stereotypes, norms and attitudes which legitimise and tolerate violence against women especially within the domestic sphere. Furthermore the Bill will also promote the provision for training, education and the gender sensitisation of all personnel and service providers engaged in the administration of justice, although this has not been explicitly provided for.

The CGE wishes to express some concerns regarding Bill and these will be outlined in our main submissions.

Section 1
• The following definitions should be amended:

Section 1(xxi) to read as follows:
"shared household," means a household where the applicant and the respondent live or lived together in a domestic relationship including a customary law extended family or clan relationship
.
We endorse in this regard the submissions made by the Black Sash.

• The following definitions should be included:

"dependant children," means any children who are wholly or substantially dependent on the applicant.

"immediate family," means any adult child, parent, grandparent, grandchild, spouse or sibling of the applicant who is wholly or substantially financially dependent on the applicant.

• Suggestion: Section 1(vi)(d) should be extended by the inclusion of the following additional clauses:

(d) they are family members related by consanguinity, affinity adoption, clan name and kinship.

We endorse in this regard the submissions made by Black Sash.

Section 2
Suggestion: Section 2(1) should be amended by the inclusion of a new sub-section to read as follows:

(c) if the victim's language of choice is a language other than an official language of the Republic of South Africa, arrangements have to be made for a translated copy of the explanation to be made in a language the victim understands.

Section 3
A section granting immunity from prosecution to police officers, who effect arrests in terms of this Act, which section could read as follows:

No action shall be taken against a peace officer who executes a warrant of arrest in terms of this Act, unless such warrant was executed mala fides.
The onus of proof shall rest upon the person alleging such mala fides.

We endorse in this regard the submissions made by Tshwaranang Legal Advocacy Centre to End Violence Against Women.

Section 4
Section 4(9) does not prescribe time periods.

Suggestion: A time period for the submission of the application to court by the Clerk of the court should be stipulated in the Bill to avoid a delay in proceedings. This could read as follows:

(9) The application and affidavits shall be lodged with the Clerk of the court who shall forthwith submit the application and affidavits to court within seven (7) days or as soon thereafter as the matter may be heard.

Section 5
The CGE calls on the Law Commission and the Constitutional Court to issue a declarater on the following questions:

1. Is the granting of a final order in the absence of the respondent a violation of his/her rights under the Constitution?
2. How do we balance an individual's right to the audi alteram partem rule, against an individual's rights to freedom and security of the person (s12), human dignity (s10) and equality (9)?

Section 6 & 7
• The CGE notes with concern that most of the powers given to magistrates are discretionary rather than mandatory.

Suggestion: Wherever the Bill has recommended that the court "may order" the CGE suggests that it should read, the court "shall order".

• Section 6(5) could have the effect of a civil claim and a dependant's claim against the respondent if it could be worded as follows:

(5) The court shall order the respondent to pay emergency monetary relief to the victim and to the victim's dependent children or immediate family.

The definitions of "dependant children" and "immediate family" are included in the Section 1 suggestions.

Section 10
The procedure outlined in this section is too cumbersome and elaborate and will make the implementation of the Bill difficult. Implementation of the Section 10 requirements shall be particularly difficult to rural women, the illiterate and people with little or no access to legal representation.

Suggestion: The Bill must be made victim friendly and more accessible to victims. The CGE thus suggests that NGO service providers should be recognised for their expertise and recognised in the gender sensitisation process initiated by government departments.

We endorse in this regard the submissions made by the Rape Crisis Centre.

Section 15
The CGE suggests that Section 16(2) should be amended by the inclusion of the following sub- section:

16(2) Any party to the proceedings may request the presence of specified persons at the proceedings provided that such specified persons shall have a material interest in the proceedings.

Section 17
The Bill should include a duty on the court to timeously inform persons appearing before the court of their right to legal representation. This provision could be worded as follows:

17. Any party to the proceedings in terms of this Act shall have the right to legal representation, which right shall include the right to:

(1) be informed of this right promptly
(2) appoint and consult a legal practitioner
(3) have a legal practitioner assigned to the person by the State and at State expense if substantial injustice would otherwise occur.

The CGE further calls on the State to devise a means test that will ensure that persons who are indigent at the time of the application, are able to receive economic assistance from the State.

Section 20
The CGE is of the opinion that the maximum penalties provided for in the Bill are too lenient and not much of a deterrent.

Suggestion: The CGE suggests a maximum penalty of ten (10) years imprisonment and that the other sentences be increased proportionately depending on the severity and seriousness of the offence.

We endorse in this regard submissions made by the Rape Crisis Centre and Gap.

THE CGE FURTHER SUGGESTS THAT THE STATE should embark on Gender sensitisation programmes to reflect its commitments to its obligations as a signatory to international conventions opposed to women abuse, and dedicated to the promotion of the rights of women. These programmes are outlined in the main submission.

These submissions should not be construed as a deviation from any previously made submissions in this regard . They are a further reinforcement of the CGE's position regarding domestic violence, especially that directed against women and children.

COMMISSION ON GENDER EQUALITY (CGE)
DOMESTIC VIOLENCE BILL
SUBMISSION TO THE JUSTICE PORTFOLIO COMMITTEE
17 AUGUST 1998

The CGE welcomes the Domestic Violence Bill, with its objectives to end domestic violence, and specifically the legal relief it intends affording to the victims of domestic violence. For the CGE the most crucial aspect of the Bill is the protection it accords women. By recognising inter alia, that the majority of victims of domestic abuse are women, and that domestic violence is an obstacle to achieving gender equality, the Bill is carrying out its obligations and international commitments towards ending violence against women and the girl child. Through the inclusion of women this Bill reaffirms the Constitutional guarantees to freedom, equality and dignity to all persons.

The CGE applauds the Bill in that it promotes the eradication of elements in traditional norms and religious beliefs, practices and stereotypes which legitimise and exacerbate the persistence and tolerance of violence against women especially within the domestic sphere. Furthermore the Bill will go a long way in ensuring and promoting training, education, research and the gathering of statistics. In this way the Bill will promote gender sensitisation of all service providers engaged in the administration of justice, such as judicial officers, prosecutors, police, prison, welfare and health officials.

The CGE requests parliament to effect the following amendments to the Bill:

Section 1
• The amendment of Section 1(vi)(d) by the extension of subsection (d) to include clans and kin as a nature of relationship. To effect this amendment the CGE also endorses the submissions of Black Sash.

Section 1(vi)(d) of the Bill could be amended to read as follows:

"they are family members related by consanguinity, affinity, adoption, clan name and kinship."

• The amendment of the definition of "shared household" in Section 1(xxi) of the Bill by including a new definition which defines family members in an extended family as comprising a shared household and thus constituting a domestic relationship for the purposes of this Bill. To effect this amendment, the CGE also endorses the submissions of the Black Sash in this regard.

Section 1(xxi) of the Bill could be amended to read as follows:

"shared household," means a household where the applicant and the respondent live or lived together in a domestic relationship including a customary law extended family or clan relationship.

Section 2
• The amendment of Section 2(1) by the inclusion of a sub-section, which extends to victims, especially immigrants, whose language of choice is not one of the official languages.

Section 2(1) of the Bill could be amended by including a new subsection to read as follows:

"(c) if the victim’s language of choice is a language other than an official of the Republic, arrangements have to be made for a translated copy of the explanation to be made available in a language the victim understands."

Section 3
The police must be protected from action taken against perpetrators of domestic violence, where the police arrest such perpetrators in order to protect the victim. Immunity must be granted to police officials where an arrest turns out to be unlawful, otherwise the police will continue to refuse to act in abuse cases because of fear of reprisals, legal or otherwise. To effect this amendment, the CGE also endorses the submissions of Tshwaranang Legal Advocacy Centre to end Violence Against Women.

A section should be included in the Bill to protect the police which section could read as follows:

"No action shall be taken against a peace officer who executes a warrant of arrest in terms of the Act, unless such warrant was executed mala fides.
The onus of proof shall rest on the person alleging such mala fides.

Section 4
With regard to the application for a protection order in Section 4 of the Bill the CGE suggests that in subsection 9 a time limit/frame must be stipulated. This is in order to avoid a deliberate delay of proceedings by Clerks of the court who do not set matters down for hearing despite the urgency and danger characterising applications of this nature. Subsection 9 could read as follows:

(9) The application and affidavits shall be lodged with the clerk of the court who shall forthwith submit the application and affidavits to court within seven (7) days or as soon thereafter as the matter may be heard.

Section 5
With regard to the power to grant an interim protection order the CGE welcomes the provisions of Section 5 as they uphold the principles of natural justice and the audi alteram partem rule subject to certain reservations. This principle entitles a person the opportunity to be heard in administrative and judicial decisions that affect him/her. An exception to this rule is for example where a matter is of such an urgent nature that a delay will endanger life and public safety or defeat the ends of justice.

Provision is made in the Bill for the granting of an interim protection order which may be issued ex parte. The respondent has the opportunity to appear on the return date. The time stipulated in the Bill affords the respondent an adequate opportunity to enforce his/her rights to be heard. Previously there has been criticism leveled at the 1993 Act in that it eroded the respondent’s constitutional right to be heard. The CGE maintains that this violation is justifiable and reasonable in terms of the limitations clause (s36). The victim’s rights to freedom and security of the person (s12); human dignity (s10) and equality (s9), far outweigh a respondent’s rights to audi alteram partem.

The CGE is deeply concerned about the proposed provision, as it will undoubtedly work to the disadvantage of women victims. This has been borne out by the fact that in the past few months a number of alarming incidents of violence against women has been witnessed. In certain instances women have been killed by their abusers in open court. Victims feel that there is no protection or guarantee of their physical safety by the legislation when they are rendered sitting ducks for the perpetrator. This procedure reinforces rather than diffuses the unequal power relationship between victim and perpetrator as the latter is given the opportunity, time and place at which he/she knows that he/she will have access to the victim. The CGE fears that given the recent violent attacks on women especially within the atmosphere of a court and without any preventative or protective measures being put into place, fewer and fewer women will make use of the legal system

The CGE calls on the Law Commission and the Constitutional Court to issue a declarater on the following questions:

1. Is the granting of a final order in the absence of the respondent a violation of his/her rights under the Constitution?

2. How do we balance an individual’s right to be heard against a victim’s rights to freedom and security of the person (s12); human dignity (s10); equality (s9)?

Section 6
With regard to the terms of the protection order, the prohibitions contained in this section may be difficult to enforce. The prohibition contained in sub-section (1)(c) may call for the eviction of the perpetrator if its is in the applicant’s best interests or those of any child. This provision is problematic in that no test has been provided to determine what are the applicant’s best interests.

This grants to the courts a very wide discretion to determine whether or not to evict the perpetrator, whether or not to make temporary orders around custody, access and maintenance. The CGE believes that in the absence of training, magistrates should be given less rather than more discretionary powers. Instead, strict rules and guidelines have to be laid down regarding the powers of magistrates in matters of this nature. Magistrates should be required to give written decisions with reasons for such decisions.

The CGE notes with concern that most of the powers given to magistrates are discretionary rather than mandatory. The CGE suggests the following:

Wherever the Bill has recommended that the court "may order" the CGE suggests that the court "shall order".

Section 6(5) of the Bill provides that the court may order the respondent to pay emergency monetary relief. However it does not indicate to whom this money should be paid. This provision could have the effect of a civil claim and a dependant’s claim against the perpetrator if the Bill could be worded as follows:

(5) The court may order the respondent to pay emergency monetary relief to the victim and to the victim’s dependant children or immediate family.

This provision could be further qualified by the inclusion of the following definitions in Section 1:

"dependant children" means any children who are wholly or substantially financially dependent on the applicant

"immediate family" means any adult child, parent, grandparent, grandchild or sibling of the applicant who is wholly or substantially financially dependent on the applicant.

Section 7
The CGE suggests that the recommendation that the powers of the court be couched in more mandatory language should apply to this section and the following sections as well.

Wherever the Bill recommends that the court "may" order should be read as the court "shall" order.

Section 8
With regard to the service of documents the CGE suggests that there should be time frames provided in the Bill for the service of documents. The CGE thus calls for the training of the personnel mentioned in Section 8. It is essential that the personnel whose responsibility it is to implement the provisions of the Act are able to effect service of process and to obtain the requisite proof of service. The return of service is important as it determines the validity of the interim protection order and its effectiveness.

The CGE commends the Bill for placing the financial burden of service of documents on the State. This recognition of the economic disempowerment of women further reinforces the recognition that the majority of victims of abuse are women whose economic circumstances are a bar for them to use this process. The protection order is now easily accessible to persons who could previously not afford the costs of service.

Section 10
The shortcomings of Section 10 are that it outlines an elaborate and cumbersome procedure with regard to the granting of a final order. This procedure will make the implementation of the Bill particularly difficult. In the preamble the Bill recognises that victims of abuse come from different social and economic backgrounds, yet its feasibility has not been considered in the light of these inequities.

In order for the Bill to achieve its objectives, it must be capable of implementation. The Bill in its existing form poses a difficulty to women as they are economically and socially disempowered relative to men. The Bill does not adequately respond to the problems women experience in their lives. Implementation of the Bill will be difficult especially for rural women, the illiterate, people with little or no access to legal representation.

The requirements as laid down by Section 10 of the Bill do not take into account the social and economic dimensions of victims of domestic violence who are in most cases rural working class women from underresourced areas. The laws that exist do not adequately respond to the problems these women experience in their lives. The Bill must address the social and economic factors that play a role in hindering women’s access to the courts. The legal system and especially this Bill must be made victim friendly by taking cognisance of factors that hinder accessibility to legal redress. In determining the feasibility of the implementation of this legislation the Bill should ensure that it would be easily implemented by women who do not have access to education, employment, telecommunication systems, transport and the courts. The use of the legal system by victims will not be encouraged by an Act which is so complex in nature that it makes the victim regard the legal system as hostile to their needs.

The CGE accordingly calls on Parliament to adopt a strategy to make the implementation of the Bill more victim-friendly. This can be achieved by making legal representation more accessible to victims. The CGE thus suggests that NGO service providers should be recognised for their expertise or recognised in the gender sensitization processes initiated by government departments.

Section 15
The CGE commends the Bill for its compliance with the United Nations Declaration on the Elimination of Violence Against Women especially with regard to marital rape. Article 4 of this Declaration provides that States should condemn violence against women and should not invoke a law, custom, tradition or religious consideration to avoid obligations with respect to its elimination. Previously South African law did not regard as a crime the rape of a woman by the man to whom she is married in terms of customary law.

Certain customary practices along with some aspects of tradition are often the cause of violence against women. The Bill is applauded for challenging and eliminating these practices as they violate the basic tenets of international human right law.

Section 16
The CGE is deeply concerned by the provisions of Section 6(2) as it greatly detracts from the purpose and objectives of this provision. Violence, especially violence against women, is a manifestation of unequal power relations between victim and perpetrator, men and women, the weak and the strong. Violence leads to domination over a victim by the perpetrator invoking feelings of fear in the victim.

The presence of the perpetrator in court is on its own cause enough for the victim to feel uneasy. But the combined presence of the perpetrator and specified persons he/she may request to be present is sufficient to cause extreme terror and unease to the victim.

The CGE suggests that Section 16(2) of the Bill should be amended by the inclusion of the following sub-section:

Any party to the proceedings may request the presence of specified persons provided that such specified persons shall have a material interest in the proceedings.

Section 17
This submission should be read together with the submission on Section 10.

This section should also include a clause placing a duty on the court to inform persons appearing before it of their right to legal representation, prior to the commencement of proceedings. This subsection could read as follows:

17. Any party to the proceedings in terms of this Act shall have the right to legal representation which shall include the right to:

(1) be informed of this right promptly
(2) choose a legal practitioner
(3) have a legal practitioner assigned to the person by the State and at State expense if substantial injustice would otherwise result

The CGE further calls on the State to devise a means test that will ensure that persons, who are indigent at the time of application, are able to receive economic assistance from the State.

Section 20
The CGE is of the opinion that penalties provided for in the Bill are too lenient. Consequently, they are not much of a deterrent. We suggest that the maximum period of imprisonment should be increased to at least ten (10) years in Section 20(b) of the Bill and the others increased proportionately depending on the severity and seriousness of the offence.

THE CGE FURTHER RECOMMENDS THAT THE STATE SHOULD DO THE FOLLOWING:

• embark on gender sensitisation programmes and public awareness campaigns aimed at eradicating violence, especially violence against women and children
• provide easily accessible, effective and responsive information on services available to women, children victims and other survivors of violence relating to health, social welfare, legal, police and other services.
• provide accessible and affordable legal services, including Legal Aid, to ensure the just and speedy resolution of matters regarding domestic violence.
• introduce and promote gender sensitisation training of all service providers engaged in the administration of justice, such as, judicial officers, prosecutors, police, and welfare and health officials.
• provide easily accessible, affordable and, where possible, free social and counseling services for the empowerment of victims, perpetrators and survivors of domestic violence.
• undertake research, gathering of statistics and sharing information on the causes, prevalence and consequences of domestic violence.
• ensure the allocation of adequate budgetary resources to ensure the implementation and sustainability of the above programmes.
• ensure that all stakeholders implement all measures in an integrated and strategic manner.