Joint Monitoring Committee on the Improvement of Quality of Life and Status of Women

Report on the study tours undertaken to Provinces (2000 – 2003) to monitor the implementation of the Domestic Violence Act [Act No.116 of 1998] and the Maintenance Act [Act No.99 of 1998]

September 2003

1. Background

The Joint Monitoring Committee on the Improvement of Quality of Life and Status of Women (hereafter JMC) undertook study tours to all provinces between April 2000 and May 2003. The study tours formed part of the monitoring and oversight function of the Committee as well as its obligations to fulfill the country’s commitments towards the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Beijing Platform for Action. The study tours were thus specifically geared towards:

The latter two objectives were added to the objectives of the study tours that were undertaken in 2002 and 2003. In Gauteng, the JMC also monitored the implementation of the Child Support Grant.

Provinces were visited by delegations of the JMC during the following periods:

This report presents the findings of the Committee with regard to the implementation of the Domestic Violence Act and the Maintenance Act. It will delineate the gains made with the Acts, the implementation problems experienced and recommendations made for the successful implementation of the Acts. It should be borne in mind that one of the main objectives was to elicit problems with the implementation of Acts. Thus, the information collected on progress or achievements of the Acts are limited.

The report also discusses the findings of the Committee with regard to the Gender Machinery, with the focus on the Offices on the Status of Women (OSWs) and Gender Focal Points (GFPs). The JMC had met with the entire Gender Machinery, which included the legislative committees, OSWs, GFPs and representatives of the Commission for Gender Equality (CGE). The findings of the latter only pertain to the North West, Gauteng, KwaZulu-Natal, Free State and Northern Cape. Furthermore, it should be noted that Gauteng does not have an OSW, but that the functions are performed by the sub-directorate on HIV/AIDS and Gender in the Directorate of Social Development in the Office of the Premier.

 

2. Successes of the Acts

2.1 Domestic Violence Act

2.2 Maintenance Act

3. Achievements of the OSWs and GFPs

 

4. Problems with the implementation of the Acts

4.1 Domestic Violence Act

4.2 Maintenance Act

5. Concerns around the Gender Machinery

South Africa’s National Policy Framework for Women’s Empowerment and Gender Equality proposes a process that no longer regards gender issues and gender equality as an ‘add on’. It places gender at the very center of the transformation process within all structures, institutions, procedures, practices and programmes of government, its agencies and parastatals, civil society and the private sector (South Africa’s National Policy Framework for Women’s Empowerment and Gender Equality, 2000). In order to achieve national and international commitments (such as CEDAW and the Beijing Platform For Action) to gender equality, a National Gender Machinery was established. These national machinery structures include, amongst others, the OSWs and GFPs.

The National Gender Policy Framework calls for the position of the GFPs to be placed at Director level (commensurate with the skills required for gender mainstreaming). At a Director level, the GFP person would be in a position of decision-making and be able to impact on policy.

Some provincial OSWs have a working relationship with the national OSW. However, it was evident that there is a need for better communication and liaison between the offices. This communication should extend to, for example, provincial input on reports and programmes.

 

6. Recommendations

 

Recommendation

Department/Institution Responsible

Domestic Violence Act

  • Forensic training for medical practitioners. Doctors need to be trained in forensic investigations or examinations. This will ensure that they collect proper evidence during examinations, which will assist victims in securing convictions against alleged perpetrators. Any trained medical practitioner should be able to perform this function at the health facility.

National Department of Health.

  • Increased budgets. Service providers’ budgets (such as police, court, social workers and health facilities) should be increased to enable them to recruit more staff, train staff and acquire the necessary resources (such as vehicles) and infrastructure. Private-Public partnerships should also be initiated as well as the sourcing of donor funding to assist with the purchasing of vehicles, etc.

Department of Safety and Security, Department of Justice and Constitutional Development, Department of Health, Department of Social Development.

  • Staff availability after hours. Staff performing essential services such as police, health workers, social workers, magistrates, etc should be available after hours to ensure that emergency services are delivered to its clients.

Department of Safety and Security, Department of Justice and Constitutional Development, Department of Health, Department of Social Development.

  • Ongoing training for police, judges, magistrates and prosecutors. All police officers, magistrates and prosecutors should receive training in the provisions of the Act as part of their compulsory training. This training could also be extended to judges. Such training should be ongoing to ensure that these service providers are always aware of new developments. Training could happen on site and be structured in a manner, which does not take scarce human resources away from the office. Once trained, police officers should be placed in units where they can utilise the skills acquired. Furthermore, training should include social context training, and training that sensitises them to issues of gender, to ensure that service providers are sensitised to the problems faced by victims. There is a further need for departments to evaluate the effectiveness and impact of the training provided to staff members amidst allegations of ineffectiveness and insensitivity of staff.

Department of Safety and Security, Department of Justice and Constitutional Development.

  • Holistic approach. A holistic approach must be adopted when it comes to solving issues of domestic violence. The various stakeholders, i.e. police, court staff, prosecutors, magistrates, civil society, churches, health workers and social workers should all work in partnership. By involving civil society in the development of policies and programmes, departments can ensure that the needs of the communities are taken on board. NGOs and Community Based Organisations (CBOs) can also facilitate the work of service providers by, amongst others, rendering voluntary services at police stations and courts.

Department of Safety and Security, Department of Justice and Constitutional Development, Department of Health, Department of Social Development.

  • Support for the SAPS members. Members of the police service should receive effective support services, i.e. debriefing and counselling.

Department of Safety and Security.

  • Monitoring systems. The SAPS as well as other roleplayers must develop a monitoring system with regard to the implementation of the Act. This would ensure accountability on the part of, amongst others, the police.

Department of Safety and Security.

Department of Justice and Constitutional Development.

  • Acknowledge same-sex

relationships. Police officers should become sensitive to and acknowledge same-sex relationships, especially where both partners are male, as they are also entitled to the protection afforded by the Act. Such cases should be treated with the necessary attention that they deserve.

Department of Safety and Security.

  • Application forms. The language barriers that exist with regard to application forms for protection orders need to be revisited. These forms should be made available in the different official languages. These forms should also be made simpler and shortened.

Department of Justice and Constitutional Development.

  • Education. People, especially women, need to be empowered by informing them of their rights in terms of the relevant legislation. It is recommended that such empowerment should start at school level, where learners are informed of their rights. It is been recommended that all government departments, in conjunction with the civil society sector, embark on a national awareness raising campaign.

Education and awareness raising by NGOs, as well as other service providers, should include focusing on the process of laying complaints at police stations against police officials who are not performing their tasks. Registers are provided at police stations, in which a member of the public can lay a complaint against a member of the SAPS. It is also necessary for departments as well as NGOs to evaluate their awareness raising and education campaigns on the legislation.

Department of Safety and Security, Department of Justice and Constitutional Development, Department of Health, Department of Social Development, Department of Education.

 

 

 

 

NGOs, CGE, Parliament of South Africa and Legislatures.

  • Recruitment of the SAPS staff. The recruitment of staff was reported to be a problem in specifically the Northern Cape. To address the problem of the appointment and recruitment of staff, it is suggested that staff could be appointed despite not having driver licenses and be assisted by the SAPS to obtain it. The recruitment was further hampered by the language of the psychometric tests (English) in a community where English is a second or third language. Many applicants thus fail the test. It is thus recommended that the issue of the psychometric tests and the language that it is administered in should also be considered by the Department of Safety and Security.

Department of Safety and Security.

  • Penalties for failure to perform duties. The Domestic Violence Act makes provision for a penalty to be imposed on SAPS members who fail to execute certain duties. This should be extended to other government departments as well.

Department of Justice and Constitutional Development.

  • Survivors of abuse and rape should be accompanied to hospitals by the police. Social workers and NGOs should also be informed so that they could provide the survivors with the necessary assistance and counselling.

Department of Safety and Security, Department of Social Development, NGOs.

  • Crime kits and forms should be made available at all hospitals.

Department of Safety and Security, Department of Health.

  • Family Courts, specialising in domestic violence issues, should be established in every district.

Department of Justice and Constitutional Development.

  • Special Sexual Offences Courts should be established in all districts. The personnel involved in these courts are well trained in the methods to deal with the victims/witnesses in these types of cases and dealing with the cases received in these courts. Victims/witnesses are not as reluctant as in the past to testify against perpetrators because of the reduction of the possibility of intimidation by accused persons and secondary victimisation.

Department of Justice and Constitutional Development.

  • NGO funding. There should be funding for the wide range of services (e.g. shelters, counselling, advice) and enormous amount of community education and training that NGOs provide in order to assist and empower women.

Department of Health, Department of Social Development, Department of Safety and Security.

  • Departments should identify NGOs to work with as partners. These NGOs can provide important services such as counselling and medication.

Department of Health, Department of Social Development, Department of Safety and Security.

  • Increase the jurisdiction of the regional court. Section 51 of the Criminal Law Amendment Act states that persons convicted of certain serious offences listed in the Schedules to the Act must be given a mandatory minimum sentence. An exception is created where the judicial officer imposing the sentence is ‘satisfied that substantial and compelling circumstances exist which justify the imposition of a lesser sentence’. Rape and murder are some of the offences listed in the Schedules. For certain types of rape, as well as for murder, the Act requires that a minimum sentence of life imprisonment be imposed. Even though the regional court is empowered to conduct the trial of the accused, it does not have the jurisdiction to impose a sentence of life imprisonment. The matter has to be referred to the High Court for sentencing. This is problematic, as it is a very long and protracted process to get a matter onto the High Court roll for sentencing. Also, judges who do not have any sense of what is going on in the case, as they were not involved at all during the trial stage, impose sentences.

Department of Justice and Constitutional Development.

  • Increase jurisdiction of district court. The Act empowers a court to impose a sentence of up to 5 years against a perpetrator who breaches a protection order. However, the district court only has jurisdiction to impose sentences of up to 3 years. It is thus recommended that the jurisdiction of the district court be reviewed upward.

Department of Justice and Constitutional Development.

  • Regional and district courts should adhere to legislation that allows them to impose heavy sentences for rape cases.

Department of Justice and Constitutional Development.

  • Budgeting for implementation of legislation. Departments need to consider the budgetary implication of the proposed Acts before it is enacted and make provision for this in their departmental budgets.

Department of Safety and Security, Department of Justice and Constitutional Development, Department of Health, Department of Social Development, Department of Education.

Maintenance Act

  • Appoint Maintenance Investigators. The Maintenance Act provides for the appointment of maintenance investigators to assist maintenance officers. However, since maintenance investigators have not yet been appointed, defendants and defaulters cannot be traced. The Department of Justice and Constitutional Development recently announced the appointment of 55 maintenance assistants at courts across the country. However, this is not nearly enough to address the problems faced by maintenance courts. It is therefore recommended that the Department prioritises the recruitment and permanent appointment of maintenance investigators.

Department of Justice and Constitutional Development.

  • Expand the Family Court Project. The Department of Justice and Constitutional Development has piloted Family Court Projects in certain provinces. These courts deal with maintenance cases, children’s cases and domestic violence issues. They have been designed primarily to make them accessible and sensitive to the needs of the community; operate according to simple, appropriate procedures; offer counselling and mediation support services and provide quality service in a pleasant, user-friendly environment. It has been recommended that this project be rolled out to all provinces.

Department of Justice and Constitutional Development.

  • Review Sheriff’s fees. Sheriffs of the court who must serve processes require their money upfront. However, the majority of people in need of these services is indigent, and thus cannot afford to pay for such services. It is thus recommended that the legislation regulating the payment of sheriff’s fees be reviewed with a view to developing measures that will assist the poorest of the poor to access these.

Department of Justice and Constitutional Development.

  • Education and Training. Maintenance officials, including magistrates and prosecutors, need training on legal aspects of the Act and coping with stress. Staff also need to receive social context training and training to sensitise them to gender issues.

Department of Justice and Constitutional Development.

  • Judiciary. Systems within the judiciary need to be transformed to accommodate the changes that have occurred with regard to maintenance issues, etc.

Department of Justice and Constitutional Development

  • Resources. All stakeholders need additional resources for the implementation of the Act. This includes additional human resources at police stations and courts as well as office equipment and supplies in the form of photocopiers, paper, etc.

Department of Justice and Constitutional Development, Department of Safety and Security.

  • Simplification of Acts. It is necessary for Parliament to simplify the Domestic Violence Act in order to educate and raise public awareness. Parliament could develop booklets on the Domestic Violence Act, which would inform people on, amongst others, how to access their rights.

Parliament of South Africa.

Department of Justice and Constitutional Development.

  • Policy guidelines. A set of policy guidelines needs to be developed around maintenance, since the Department of Social Development frequently has to deal with legal aspects pertaining to foster care as well. Clear directives should also be given with regard to the warrants of execution and garnishee orders.

Department of Justice and Constitutional Development.

  • Maintenance forms. Shorter maintenance forms are required and these should be simplified.

Department of Justice and Constitutional Development.

  • Mediation process. There is an urgent need for a mediation process to deal with maintenance matters. Service providers need to consider the social aspect of the issue and could provide mediation. Social workers and NGOs can be engaged to assist in this regard.

NGOs, Department of Social Development.

  • Photographs should be taken of maintenance defaulters so that the defaulter cannot claim to be someone else. The Maintenance Act makes provision for this.

Department of Justice and Constitutional Development.

Gender Machinery

  • Rank and placement of OSWs. The Heads of the OSWs need to be appointed at Director level and be located in Premiers’ offices.

National and provincial OSWs.

  • Appointment of OSWs. Skilled and experienced persons should be appointed to the OSWs in permanent positions.

National and provincial OSWs.

  • Appointment of GFPs. Skilled and experienced GFPs should be appointed in permanent positions in all departments where there are no GFPs. They should be provided with the necessary training to ensure that capacity is built.

All national and provincial departments.

  • Rank of GFPs. Whilst it is recommended that the rank and the location of the GFPs be revised to that of Director level, it is done so with the understanding, as is also stated in the Gender Policy Framework, that the position should be commensurate with the skills required for gender mainstreaming.

All national and provincial departments.

  • Location of GFPs. It is recommended that GFPs be placed in the Head of Departments offices or in the offices of the Director-Generals.

All national and provincial departments.

  • Responsibilities of GFPs. GFP persons should be responsible for gender issues only. The National Gender Policy sets out clear guidelines for the functions and the aims of the GFPs, and how this fits into the broader goal of achieving gender equality. To conflate the portfolio of the GFP with other issues, such as HIV and AIDS, poverty, youth issues, issues pertaining to people living with disabilities as well as children’s issues, seriously undermines this goal as those portfolios should be dealt with independently.

All national and provincial departments.

  • There should be uniformity in gender machinery structures across departments and provinces. It is recommended that the sub-directorate on HIV/AIDS and Gender in the Directorate of Social Development (in Gauteng), be renamed the Office on the Status of Women and be located within the Premier’s office.

Gender Machinery.

  • Senior management in departments need training, which would sensitise them to the importance of gender and the inclusion of gender programmes and objectives in their departments. Gender should be an indicator against which the performance of all Director-Generals and Heads of Departments are evaluated.

All national and provincial departments.

  • Gender policies in departments. Gender policies should be put in place at all levels of government. All GFPs should have programmes to ensure gender mainstreaming that should be supported with the necessary budgets.

All national and provincial departments.

  • Provincial Gender Policy Frameworks should be developed and this should guide the development of provincial gender action plans. The Gender Policy Frameworks should stem from the National Gender Policy Framework.

Provincial OSWs.

  • Working relationship between national and provincial machineries. The JMC could assist with facilitating a better working relationship between the national and provincial gender machinery i.e. between the national and provincial Office on the Status of Women, CGE and GFPs. The JMC could do this by facilitating a meeting(s) between the relevant parties.

Provincial and national gender machineries.

  • Committee in Legislature. There should be a corresponding Committee on the Improvement of Quality of Life and Status of Women in the Legislatures that can play an oversight and monitoring role over departments, so that political Heads as well as senior staff can be called to account for gaps in the GFPs and gender mainstreaming in the provinces.

National and Provincial Legislatures.

Conclusion

The JMC wishes to thank the various stakeholders, such as the SAPS, prosecutors, magistrates, NGO’s, OSWs, CGE, GFPs, Members of the Legislatures and Premiers that participated in the discussions in the provinces. All stakeholders provided valuable insight into the implementation of the Domestic Violence Act and the Maintenance Act as well as into the roles and functions of the Gender Machinery. Without these inputs, the JMC would have been unable to successfully fulfill its monitoring and oversight functions. The Committee would like to commend and acknowledge the excellent work done and commitment displayed by the various stakeholders that participated in the discussions, despite the adverse conditions that they are often faced with in performing their duties and in delivering a service. The JMC would, however, want to note their concern about the lack of participation of magistrates in some of the provinces visited.

Lastly, the JMC would like to thank Kim Davids (secretary to the Chairperson), Fuad Holliday and Sunè Pauw (Committee Section) and Carmine Rustin (Parliamentary Research Unit) for their invaluable contributions in organising the study tours and in compiling this report. A further word of thanks needs to be expressed towards the researchers in the Parliamentary Research Unit and the committee secretaries who assisted the JMC on its provincial study tours and who compiled provincial reports.

 

Sources