South African Human Rights Commission
1. Introduction
The Constitution entrenches the rights to both gender equality and to freedom and security of the person. In addition, in 1995 South Africa ratified the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Both instruments oblige the country to commit itself to the eradication of violence against women, and the Domestic Violence Bill ("the Bill") is an important actualization of this commitment. The South African Human Rights Commission ("the Commission") welcomes the Bill as a significant step towards the progress of achieving substantive equality for women in South Africa.

2. Current Legislation
The Prevention of Family Violence Act (Act 133 of 1993) introduced specific mechanisms for obtaining an interdict in cases of domestic violence. However, the scope of the Act was limited, and in the implementation and practice of the legislation, certain problems have been identified with its provisions, including:

• it applies only to "parties to a marriage";
• no definition of "family violence" exists in the Act, and interpretations of what constitutes violence have varied greatly in the interpretations of judicial officers;
• there is confusion regarding the legality of the "ex parte" nature of its orders;
• judicial officers are not empowered to make orders relating to concurrent issues, such as financial damages or assistance, and access to minor children;
• service on an interdict may only be effected by a sheriff, and the costs must be covered by the applicant;
• it provides no clarity on the amendment or setting aside of an interdict.

In addition, the role of the South African Police Services in implementing and effecting the provisions of orders in terms of the Act has been unclear and problematic.

These issues are all addressed in the new bill. In addition to extending its provisions beyond the marriage relationship and family, it allows a court to make much wider orders, incorporating issues of financial damages and access. Ex parte orders are expressly permitted, a wider range of agencies can effect service, and costs are to be covered by the state. There are specific mechanisms for setting aside an interdict, and the role of the South African Police Services ("SAPS") is made more explicit. The Commission welcomes these new provisions, and believes that they bring the statute into line with current realities of domestic violence.

3. Tabled Bill
3.1 Ad preamble
The Commission welcomes the recognition that women are most often the victims of domestic violence, and the focus on other vulnerable groups, such as the elderly, children and the disabled, who are also often the subject of domestic violence.

The reference to the necessity to train police and court officials around the contents of the bill is important, as the success and effectiveness of any provisions depend predominantly on the knowledge, ability and co-operation of the various service providers. The Commission trusts that the necessary training is made a priority in the various departments’ training plans, in terms of both syllabus content and resource allocation.

3.2 Ad definition section
The Commission recommends that the reference to "medical expenses" in the definition of "emergency monetary relief" should include an express reference to psychological or psychiatric assistance, as a victim of domestic violence will often require this form of assistance.

The definition of "harassment’ refers to a "pattern" of behaviour. Attention should be given to the possible removal of the notion of a pattern, as this may unnecessarily limit the definition. In addition, the definition may be in conflict with section 6(8) which provides that a court may not refuse to grant an interdict on the basis that only a single act has been committed.

RECOMMENDATIONS
• The definition of "emergency monetary relief" include reference to payment for psychological assistance;
• Consideration be given to the removal of reference to "pattern" in the definition of "harassment".

3.3 Ad section 2 – Duty to inform
The Commission welcomes the inclusion of a proactive requirement regarding the provision of information on the rights and procedures available to a victim of violence by the South African Police Services.

The Commission would recommend that when being advised of his or her rights in terms of this section, and in section 11 providing for the issuing of a warrant by the SAPS, that an applicant is encouraged to lay a criminal charge. It is important for the process of protection of an applicant to be distinguished and separated from criminal prosecution and sanctioning; in addition to providing protection, which is the purpose of this bill, the state must retain an interest in pursuing perpetrators of domestic violence, so as to entrench the criminalistation of this behaviour, and prosecuting offenders on behalf of society. Encouraging the criminal justice process to take place concurrently with mechanisms to protect an applicant will assist in the transfer of domestic violence from the "private sphere" to the public arena.

RECOMMENDATIONS
That the SAPS encourage applicants to lay criminal charges where appropriate.

3.4 Ad section 3 – Arrest
The section introduces radical powers of arrest without a warrant, and on the basis of a reasonable suspicion of a peace officer. The section may be justified in terms of the unacceptably high levels of domestic violence.

3.4.1 "Element of violence"
The section distinguishes "violence" from "domestic violence", the latter being broadly defined in the bill as "any form of controlling and abusive behaviour". The distinction is critical to the section, and elsewhere in the bill. While the Commission supports the broad definition of domestic violence as set out in the bill, it supports the reference in this section to what is in effect a sub-category of "domestic violence".

The section effectively creates this subcategory as being behaviour which both constitutes an existing offence, and which contains an "element of violence". The inclusion of both these requirements introduces an unnecessarily complicated test in the exercise of the discretion to arrest. Given that an arrest without a warrant is a serious measure, the circumstances in which this may take place must be set out very clearly. Consideration should be given to an alternative drafting approach such as the listing of offences for which an arrest can be made in a schedule attached to the bill, or alternatively by defining the so-called "sub-category" of domestic violence which contains an "element of violence" in the bill, and making this consonant with existing offences.

3.4.2 "Reasonable suspicion"
There are existing common law rules relating to the ability of a peace officer to effect an arrest without a warrant, and objective standards are applied to the reasonableness of the exercise of discretion in these cases. In his commentary on the South African law of criminal procedure, Hiemstra states that when a peace officer acts on a reasonable suspicion to arrest without a warrant, that the suspicion must be of an offence set out in Schedule 1 of the Criminal Procedure Act, that is a serious offence. Because the section as it currently stands only makes reference to offences containing an element of violence, and the notion of violence is relatively fluid in the context of the bill, it is difficult to assess the provision in light of the common law.

Arrest is for the purposes of bringing an accused before a court for criminal prosecution. Accordingly, the section relates to the state's interest in the criminality of the behaviour, but has obvious benefits to a victim, as it immediately removes the offender from the scene. However, the overall purpose of the bill is to provide protection to an applicant, and this rationale should not be confused with the operations of the criminal justice system, despite the necessary overlap. Section 3 refers to criminal offences and procedure, and should thus be consonant with the existing law in this regard.

Accordingly, it would be preferable for the bill to provide a clearer indication of the offences which are envisaged by the section, either via the definition section, or through the use of a schedule to the legislation.

RECOMMENDATIONS
That consideration be given to the introduction of a definition of offences giving rise to an arrest without a warrant, or alternatively to listing the offences in a schedule to the bill.

3.5 Ad section 4 – Application
Given that many applicants will be unrepresented, and may be unfamiliar with legal processes, it may be advisable to extend the role of the clerk of the court from advice to a duty to assist an applicant in the preparation of the necessary documentation. This assistance could also be provided by a specialised officer of the court, such as a domestic violence officer, such as is proposed below.

The introduction of provisions allowing an application to be brought by a third party on behalf of an applicant is commended, and should be retained. However, the Committee could consider the inclusion of a definition of "material interest" as this would clarify the notion, and short-circuit any procedural points taken in this regard.

It is also recommended that the wording of subsection 9 be amended so as to require the clerk of the court to refer matters to the court "immediately" rather than "forthwith".

Similarly, should the court require further evidence before granting order, as provided for in subsection 10, the evidence would more appropriately be acquired, where possible, orally from the applicant, or any other witnesses, as the requirement of affidavits may unnecessarily slow down the process of affording protection to an applicant. In this regard, the SAPS and the Clerk of the Court should advise an applicant that if relevant witnesses are present at court, the process will be expedited; obviously, where the applicant or witnesses are unable to be on hand, affidavits may be obtained.

RECOMMENDATIONS
That consideration be given to:
• the provision for assistance to an applicant, either by the clerk of the court, or a domestic violence officer;
• the further definition of "material interest"
• provision for immediate referral of a matter to court by the clerk of the court;
• the indication of the use of oral evidence to supplement an application where possible.

3.6 Ad section 6 - Terms of order
The terms of an order are set out clearly, and are significantly more extensive than the previous legislation, thereby providing judicial officers with a clear message regarding the ambit of their discretion under the bill. It is noted that, despite the references to the elderly and disabled in the preamble, the wording of the terms of an interdict do not, apart from children incorporate other members of the household, and consideration could be given to this inclusion.

In subsection 5 the court is empowered to order "emergency monetary relief". The definition refers to quantifiable expenses, and it is assumed that these would need to be proved via oral evidence or affidavit. It is suggested that clarity is needed regarding this aspect of the order, and whether it will have the effect of a civil judgement for the purposes of execution and recovery.

Subsection 7 allows the court to order "structured contact" between the Respondent and a child. While the empowerment of the court to incorporate this into an order is welcomed, the Committee is requested to consider whether the terminology is appropriate. A more common description used by the High Court and Family Advocates is "supervised access" and it may be useful to be able to draw on the existing case law in this regard. However, the terminology may have been deliberately chosen to avoid confusion with existing or future High Court orders, in which case it may be useful to define what "structures contact" entails.

RECOMMENDATIONS
That consideration be given to;
• the inclusion of references to the elderly and disabled in the terms of an interdict;
• provision of clarity regarding the execution of orders for emergency monetary relief;
• whether "supervised access" is preferable to "structured contact".

3.7 Ad section 8 – Service
The provision for costs of service to be covered by the state, and the extension of agencies for service, are welcomed and commended, and will remove many practical and financial hurdles in relation to domestic violence interdicts. The Commission would only recommend that consideration be given to the inclusion of a reference to the time within which the service should be effected. The wording could follow the formulation of "… immediately, and in any event in not less than 24 hours". This is particularly important, as the interdict is only valid from the time of service.

RECOMMENDATIONS
That consideration is given to providing that service should take place within a specified time.

3.8 Ad section 10 – Final protection order
The procedure for the granting of a final interdict appears to have been drafted to be as accommodating to an Applicant as possible. While this is commendable, it will only be favourable in cases which are not opposed. The procedure for answering and replying affidavits, and the automatic postponement of opposed matters will result in a time consuming process for finalisation of the order. Given that many matters are opposed, and most opposed matter will involve some level of dispute of fact, a more expeditious process is recommended. The Committee is requested to apply their minds to this particular issue, and further to the possibility of shortening the return day, to facilitate matters being finalised more swiftly.

A possibility may be to dispense with affidavits, and dispose of all opposed matters to oral evidence, with strict limitations on postponements, and emphasis being placed on speedy resolution, and to prevent matters from losing momentum, and the substantial issues from being lost in procedural technicalities. A system of automatic referral to oral evidence would operate more effectively with the assistance of a court official to the parties, and in this regard please see the comments regarding the domestic violence officer below.

RECOMMENDATIONS
That consideration be given to a system of immediate finalisation of opposed matters via oral evidence, rather than on papers, incorporating the role of a domestic violence officer.

3.9 Ad section 11 – Arrest
This section has been criticised; however, the Commission believes that its retention is necessary in order to provide substantive protection in terms of the bill. Should the Committee be uncomfortable with the powers of arrest on the basis of a interim ex parte order, and an affidavit by the applicant alleging breach, they are requested to consider providing that an arrest in terms of interim order, be followed by a hearing, immediately, or as soon as possible for the purposes of consideration of the final order. Should there be a criminal charge, the Respondent may also apply for bail.

Alternatively, consideration could be given to the inclusion of an element of actual or imminent harm for the warrant of arrest to be triggered before the order is made final. A similar route would be to refer to the formulation of "element of violence’, or preferably a schedule of offences, the commission of which could potentially trigger the warrant. In any event, the radical response such as an arrest must be balanced by an expeditious hearing, and highlights the need for a swift process of finalisation of interdicts to be adopted.

RECOMMENDATIONS
That consideration be given to the introduction of a definition of offences giving rise to an arrest without a warrant, or alternatively to listing the offences in a schedule to the bill.

3.10 Ad section 14 – Obligation to report child abuse
This section appears to repeat provisions contained in the Child Care Act. However, given the context of the bill, it may be something which bears repetition. The Committee is requested to ensure that the wording of this section is in line with the formulation contained in the Child Care Act.

RECOMMENDATIONS
That the obligation to report the ill treatment of children be retained, and made consonant with the provisions of the Child Care Act.

Systemic Issues
Domestic Violence Officer
The Commission would like the Committee to consider introducing provisions into the bill which create the position of a domestic violence officer. The role and function of such an officer would be:

• to assist applicants in bringing an application for an interim interdict;
• to assist the court if more evidence is required before granting an interim interdict (section 4(10)(a));
• to record oral evidence (section 4(10)(b));
• to appear in court when an opposed matter is heard and adjudicated by the court, and ensure that all of the relevant evidence is put before the court.

This latter function is particularly important, should the Committee consider providing that opposed matters be dealt with at oral hearings, as it will prevent the situation where an unrepresented applicant is cross-examined by a respondent. However, in the same way that a maintenance officer must appear in every maintenance enquiry before a court to ensure that all the evidence is provided to the court, notwithstanding whether both parties may be represented, a domestic violence officer could play the same role.

After-hours court
Many of the provisions of this bill, and the recommendations by the Commission, could be implemented effectively if a fully functioning after-hours court were introduced to deal with matters of this nature. This would not only facilitate the expedition of many matters, it would improve access for applicants.

RECOMMENDATIONS
That the Committee consider the introduction of a court official to assist applicants, ensure that all relevant evidence is presented to the court during an expedited oral hearing.