National Association of Democratic Lawyers (NADEL)

INTRODUCTION
The National Association of Democratic Lawyers Human Rights Research and Advocacy Project believes that domestic violence in South Africa is rife and remains one of the biggest obstacles to accessing to human rights, particularly women’s rights. Girl-children, women - young, elderly, disabled who are victims of violence, more often than not make up the majority of victims of domestic violence. Therefore, we maintain that any legislation dealing with domestic violence must:

a. recognise that domestic violence acts are largely committed against women,
b. recognise that domestic violence is a serious crime which should be punishable by law
c. protect victims of domestic violence,
d. prevent domestic violence,
e. ensure that the Departments of Safety and Security and Justice enforce the law effectively, and
f. provide for the education and training on domestic violence for the police and judicial officers.

The Project supports and welcomes the Domestic Violence Bill’s genuine effort to implement constitutional and international measures to eliminate domestic violence.

We believe that the following recommendations will enhance the Bill and contribute to the protection of women and children and promote the eradication of domestic violence:

1. Preamble
"RECOGNISING FURTHER ....; that the training of all police and judicial personnel in the procedures and enforcement of this Act is expected";

Recommendations:
1.1 That the Departments of Safety and Security and Justice include in their personnel education and training programmes, designed and executed together with non-governmental organisations, the following:

a. the causes, forms and effects of domestic violence - in particular violence against women and children

b. the provision of the law on domestic violence - including the rights of victims and services that are available to them

c. practical skills on how to respond and handle domestic violence incidents/and cases

2. Definitions
Recommendations:
2.1 We endorse both the Commission on Gender Equality and the joint Rape Crisis, Women and Human Rights Project and the UCT Institute of Criminology submissions on the amendment of Clause 1(vi)(d) to include clan, kin and extended family relationships under customary law as family members constituting a domestic relationship under the Bill.

2.2 We also recommend that in:

a. Clause 1(i) the definition of applicant include a person who is not a citizen of South Africa but resides in the Republic;

b.Section 1(xix) the definition of respondent include a person who is not a South African citizen but resides in the Republic.

c. Section 1(ix)(b) emergency monetary relief for medical expenses include costs for transportation and that `medical services’ include crisis counselling.

3. Duty to inform victim and applicant of rights
Clause 2 (1) (b) "hand a printed copy of the explanation to the victim in the official language of the victim's choice".

Recommendations:
3.1 That the word `victim’ be replaced by with `complainant’.

3.2 The majority of people, especially women in South Africa are illiterate, many of our country’s population cannot understand the language of law, many are deaf, and many are blind If the definition of applicant is to include persons who are not South African, it should be taken into account that such persons may not speak or read any of South Africa’s official languages.
It is in this light that we recommend that:

a. where the applicant cannot read or write, ensure that verbal explanations are completely understood before signing of any document takes place and a copy of the explanation must be in a language that any other person assisting the applicant can understand,

b. for the visually impaired and blind, copies of the explanation should be in braille,

c. for person’s who are deaf, information should be given with the assistance of an interpreter who knows sign language, and

d. for persons who do not speak or read any of the Republic’s official languages, serious attempts have to made to provide information in a language they understand.

3.3 We also recommend that an applicant reporting an incident of domestic violence is given the right to make a statement in an environment, at the police station, which will ensure that the applicant speaks without fear. For example, in an office rather a police station’s reception.

4. Application for protection order
Clause 4(8) "The applicant may request that his or her physical address be omitted from the protection order..."

Recommendation:
4.1 We believe that the omission of the applicant’s physical address should be mandatory as it forms part of the legislation’s measures to prevent further abuse.

5. Terms of protection order and Amendment or setting aside of final protection order by applicant:
Clause 6. (1) "In granting an interim protection order contemplated in section 5 or a final protection order contemplated in section 10, the court may prohibit the respondent from-
(c) entering the shared household: Provided that the court may impose this prohibition only if it appears to be in the best interests of the applicant or any child".

Clause 12 (1) "The applicant may, upon written notice to the respondent and the court concerned, apply for the amendment or setting aside of the final protection order in a form substantially corresponding to Form 6 of the Schedule: Provided that the court shall not grant such an application unless it is satisfied by affidavit or by oral evidence that the application is made freely and voluntarily."

Recommendations:
5.1 We believe that the court should be provided with guidelines that would assist presiding officers to exercise their discretion to determine what is in the best interests of an applicant or child in cases of domestic violence. Guidelines that could encompass an understanding of the psychological impact of domestic violence on women and constitutional provisions such as the rights of children. For example, in relation to Clause 12(1) establishing whether the applicant has decided that a specific provision ordering that the respondent not enter the applicant’s residence has resulted in her isolation from a family or community that she wants to remain part of, requests the setting aside of that provision.

7. Legal representation
Clause 17. "Any party to proceedings in terms of this Act has the right to legal representation".

Recommendation
7.1 That state funded legal representation should be provided taking into account that financial factors play a key role in many victims being unable to leave abusive situations and that economic abuse is one of the forms of domestic violence.

8. Recommendations
We suggest that the Law Commission investigates the possibility of an amendment to the Criminal Procedure Act (1977) that would:

8.1 list domestic violence as distinct category of offences.

8.2 follow recommendations from the United Nations Commission on Human Rights Special Report on Violence Against Women (Fifty-second session). The following are some of the recommendations contained in the document:

a. the prosecuting attorney or attorney-general shall develop, adopt and put into effect written procedures for officials prosecuting crimes of domestic violence,

b. when a court dismisses criminal charges in a crime involving domestic violence, the specific reasons for dismissal must be recorded in the court file, and

c. in criminal actions concerning domestic violence, the prosecuting attorney shall charge in the information sheet that the alleged act is one of domestic violence.