GROUNDWORK FINDINGS OF THE SURVEY CONDUCTED BY THE CGE AT TWENTY MAGISTERIAL COURTS AND POLICE STATION FROM 2002 JANUARY UNTIL

SUMMARY OF GROUNDWORK AND FINDINGS OF THE SURVEY CONDUCTED BY THE CGE AT TWENTY MAGISTERIAL COURTS AND POLICE STATION FROM 2002 JANUARY UNTIL 2003

INTRODUCTION

The Commission on Gender Equality (CGE) as a constitutional institution established to promote constitutional democracy has specific functions, powers and authority that relate to the promotion and development of gender equality as well as prevention of gender discrimination.

The CGE regards gender based violation as a threat to the advancement of the human rights of people, especially women whose progress in life is continuously retarded. What could have been accomplished with ease by huge a number of women from different spheres of life, over the years are being retarded due to the scourge of gender based violence. The following are other forms of violence that impact on women’s lives

Violence within the family (including domestic violence, traditional practices (FGM; commercialization of customary marriages), infanticide, incest, child sexual abuse etc.);
Violence in the community (including rape, sexual assault, sexual harassment, labour exploitation [women farm-workers paid less than males, etc.);
Violence by the State (including violence in detention and custody, as well as in situations of armed conflict and against refugee women).

The South African government has one of the most progressive constitutions in the world has passed one of the most excellent legislative. This legislation is a framework to address gender based violence within domestic relationships. If there was a will to properly implement the Act the scourge of gender based violence would have lessened by now.

As the world commemorates 16 days of activism against gender based violence. Growth and progress that South Africans at large could have made over the past ten years in advancement over all aspects of life is being compromised by the ineffectiveness and tardiness in the implementation of the Domestic Violence Act. This has been evidenced by media reports of violence against women in recent past.

BACKGROUND AND RATIONALE FOR SURVEY

The Commission on Gender Equality has received a huge number of complaints relating to the implementation of the Domestic Violence Act. Research conducted by different organisations as well as government departments indicate that, despite the fact that the DVA was promulgated more than five years ago, the scourge of gender violence is not decreasing. Instead women and children still experience abuse from men such their partners, spouses and male relatives. The abuse is spreading as though there is no improved legislative framework which has been put in place specifically to address this scourge.

Although the DVA imposes duties on the members of the SAPS and Judicial Services, the number of complaints brought to the attention of the CGE on the implementation of the Act shows that there is still a need to carefully evaluate and monitor the roles of each stakeholder as provided in the Act.

The CGE has also noted with concern the appalling decisions that are granted by courts in matters where women and children are complainants in gender based violence cases. Even though this may be as a result of ill prepared cases, there is a great concern that this excellent legislative framework is being deliberately weakened.

As a result of the ever increasing reports of such incidents where women and children suffer from gender based violence the CGE embarked on a survey to determine the veracity and enormity of the failure of the justice system. After the survey, consultative conferences were held and the following are some of the outcomes: -

To make recommendations to improve policies and procedures, services and advocacy, as well as education to meet the needs of those working in this field of social endeavour.

To review the effectiveness of the legislative framework.

Furthermore the survey and the consultative conferences were held where among others the purpose was to further explore the possibility of coming up with further evidence about the non-effectiveness or reluctance to implement the provisions of the law

HOW WAS the SURVEY CONDUCTED?

The purpose of the investigative monitor

The purpose of the investigation was to find out what was hampering the effective implementation of the Domestic Violence Act, no 116 of 1998 ("the DVA"). Some of the concerns to the CGE was that the DVA as a newly implemented legislation was expected and is supposed to deal with the short comings of the old Prevention of Family Violence Act. But the number of complaints that are brought to the attention of the CGE show that there is a problem with the implementation of provisions of the DVA. The complaints that CGE receive range from complaints about police not acting in cases of domestic violence even though the person had an interdict against the perpetrator, to courts not granting interdicts or giving interdicts where they should not do so.

Courts selected

The criteria that we used in selecting the magistrates courts was informed by facts such as, that there are courts where work had been done on DVA, e.g. Family courts, and there are districts which are always side lined (not deliberately) when it comes to research, monitoring or investigations despite there being a need for such.

So in each province the capital city (except Johannesburg) and another district that serves rural communities were selected. These are Bronkhorspruit and Alberton courts in Gauteng; Ga-Rankuwa and Mmabatho in North West; Polokwane and Mankweng in Limpopo; Nelspruit, Kabokweni and Mkobola in Mpumalanga; East London and Mdantsane in Eastern Cape; Bellville and Atlantis in Western Cape; Bloemfontein and Bothaville in Free State; Verulem and Umlazi in KwaZulu-Natal.

Method of conducting the investigation

The investigation was conducted in phases. The first phase, consisted of informal meetings with key people that are tasked with the duty of service delivery by the DVA, such as the South African Police Service, Court officials like Magistrates, clerks and prosecutors; NGOs who work as volunteers in the courts and health and welfare. The second phase was questionnaires which all personnel, service providers as well as the public that uses the DVA courts had to answer.

After the interviews court records were examined. In some instances the CGE staff observed the interaction of personnel and community members during the provision of their services. The last phase that would be finalised before end of financial year would be revisiting the district courts that have been exposed by media to be resisting to improve service delivery in as far as this Act is concerned. The leaders of these envisaged meetings would be some of the CGE Commissioners whilst staff would scrutinise the records of the service providers.

1. Meetings with members of the SAPS

The complainants of any crime rely on members of the SAPS for assistance. The CGE needed to establish if members are aware of this responsibility and how it is tackled. Where possible all members of the SAPS at the Community Service Centres that are charged with attending to complaints relating to Domestic Violence were interviewed. They were asked questions to determine:

how they came to know about the DVA
whether they were trained
if they know about National Instructions on DVA
if yes whether the training and National Instructions has equipped them to attend to complaints on DVA
what type of service do they provide to complainants on a daily basis
if there are concerns or impediments that they have encountered in relation to the implementation of the DVA.

The Station Commissioners were also interviewed to determine if they are implementing what is expected of them in accordance with the provisions of the Act and National Instructions. Amongst other things we wanted to determine if:

They kept a list of organisations that can provide assistance to the complainants in DVA cases.

Liaised with relevant people in the implementation of the Act. The DVA register was also inspected as well as all documents and forms that are used in attending to DVA cases.

At some Police stations that have separate facilities for vulnerable complainants who need to be given special care the Victim Support Centre was visited with some of the members or the head of the station.

2 Interviews with the Clerks of the court and Magistrates

As the Clerks of the court are at the fore front when complainants approach the courts, the CGE needed to establish if they are trained whether they are able to provide information and can cope with the varying flow of complainants on DVA among other tasks that they have to attend to.

Questions that were asked were on

training if any, that they received;
where are complainants interviewed (to establish if there is any privacy)
what type of assistance exactly are complainants given by Clerk of court (as some may need to be assisted to get forms filled)
where they get guidance if they are in doubt about processing a complaint;
how often do they have to be transferred from attending to DVA complaints to other sections of the court
how many clerks are attending to the complainants

if there are any records that are kept by the Clerk on DVA
if there are any impediments in their Directory and in relation to other role-players

At some courts CGE staff sat in during interviews when complainants were interviewed by the clerks of the court to observe and get details on what information is transmitted between the clerk and complainants. Interviews with the Magistrates revolved around the relationship with the SAPS, other organisations and whether they can determine applications where parties are same but in different capacities.

FINDINGS

4. 1. SAPS

It was established that most members of the SAPS have been trained on the DVA and all Stations have copies of the National Instructions. The forms that are required in applications for Protection orders are filed but hardly used. Instead complainants are sent to the court once they mention that they are involved in domestic violence disputes. This is in a sense confirms that although members of the SAPS are aware that DVA has to be attended to by them they still react in the same old fashion regarding domestic violence as something that has to be attended by other people.

The following were typical examples of responses to questions posed and what the CGE staff observed during the survey:-

All members interviewed are dedicated to serving all victims of crimes but there are shortcomings due to inadequate resources at some stations.

Most of the seniors and or heads of the SAPS stations that underwent training on DVA shared information with members charged with attending to complaints. Some of the SAPS members have attended local workshops on DVA after they were identified as members that have to work on complaints in that category.

Meetings between SAPS and other service providers discuss broad policing issues and rarely DVA cases. Some of the role-players hardly attend.

All members that were interviewed are fully aware of what is expected of them as regards attending to complaints of DVA

Although it was mentioned that all Community Police Service members know how to deal with DVA cases. At some stations it was observed that after 16h30 complainants were advised to report to the SAPS between office hours as members that are tasked with the work have to leave at 16h00 or 16h30. This was observed at three different stations. Thereby contradicting what was initially mentioned that service for all crime victims is provided twenty four hours by the Community Service Centre personnel.

The DVA register was not used regularly as is supposed to be the case, because complainants are send to court even before the application forms are filled in. Nor are cases of assault opened until the Magistrate has referred the matter back to the SAPS for that purpose.

Due to insufficient communication between different role-players, there is a bit of confusion on service of papers on DVA.

4. 2. MAGISTRATES

All magistrates that were interviewed had undergone at least one training workshop offered by Justice College. They all have copies of necessary resources to implement the DVA. However there were inconsistent responses on how they carry out their responsibilities.

At each court there is at least one magistrate who is tasked with attending to applications for protection order. Others assist if there need arises. The CGE applauds the Judiciary for such a set up. It would be magic if the same could be done by department of Justice to have well trained clerks of the court dedicated to work on DVA complaints only.

At one court it was established that none of the magistrate hears the parties on DVA application. Unless there are exceptional circumstances which could not be mentioned. Decisions and orders are granted on the basis of applications and affidavits only. The justification was that there has not been any application where the need to hear the parties arose. One wonders as to how the parties are informed about their rights and alternatives that they may purse to get relief in domestic violence cases.

One magistrate mentioned that if he knows the parties he would rather call them for conciliation rather than issue an interim order as it has worked in such intervention previously. Concern of the CGE is that the magistrate assumes a role that is not prescribed in the DAV and contradicts what the complainant had applied for instead of referring the parties to social workers.

Some of the magistrates were torn apart between shifting the filling of forms to SAPS as opposed to clerks as the latter would be freed of that task. At the same time they feared that the correction and comments that needs to be rectified in case of clerks does not take time to finalise as opposed to having a complainant walk from one building to another until all the information is correctly filled in.

3. CLERKS OF THE COURTS

At all courts, the clerks play multiple roles daily. Such as assisting with maintenance claims, filling necessary paperwork for peace letters to assisting complainants with referral letters to other relevant institutions for non-jurisdiction matters. It was apparent that all of them are very dedicated to their work as most were not even trained on the DVA. The clerks should be commended as some never received any formal training expect what they read on their own with guidance from the selfless magistrates.

Although some inflated the amount of time spent on the work they do, as they locked their offices during breaks and complainants had to wait patiently and hope that they would not be turned away to return the following day.

In brief what was established was: -

Due to enthusiasm to assist complainants some of the clerks provided counselling for parties after they had called them. This was a bit unsettling indirectly to the SAP as they are expected to serve the calling letter and in all probability they may have to serve Interim Protection order to the same respondent if the counselling does not work. Another danger here is the wrath of the respondent that may result in further prejudice to the complainant even before the SAPS serves the Interim Protection order.

With regard to complainants that may need assistance in filling in application forms. There is dangers that, as the clerks work on such matters on a daily basis they may not capture the complainants’ claim to have experienced. There is hardly an opportunity for the complainant to have what is written by the Clerk to be read out before it is taken to the Magistrate. Now in case where the magistrate does not hear the complainants the protection orders granted may contain inaccurate information.

By having to hear experiences told by complainants there is a risk that the clerks of the court may be de-sensitised. One clerk mentioned that at times women are to blame for what happens to them. CGE staff immediately got him to explain why and he retracted his sentiments.

At another level some of the clerks mentioned that they feel weakened emotionally as they have no recourse to debriefing. They resort to chatting with other court personnel to get over what they hear.

4. 4 COMMUNITY POLICING FORUM

In Mmabatho CGE staff were afforded an opportunity to conduct interviews with members of the Community Policing Forum. They were asked questions relating to the implementation of the DVA in rural areas especially. From this it was established that:

A significant number of members of the CPF knew about the provisions of the DVA although there was no formal training offered to them. They mentioned that they got the information from the electronic media. They are aware that there are different roles that have to played by for example , Social Workers (counselling); SAPS (if crime is committed / protection order) and medical treatment if there are injuries.

Some of the members of communities who are victims of gender based violence, are referred to Clerks of the court’s office instead of the SAPS first as the former seems to be more effective in attending to such matters.

The challenge that CPF members faced in their work was that (a) they are regarded at times as informers for the SAPS and at times do not get co-operation from communities on crucial issues. (b)They are blamed for the arrest of suspects in other serous crimes within the communities. (c) They are unable to convince community communities for stringent and decisive action to be taken where gender based violence occurs for example rape of girl children is instead referred to the attended to by family members (step-father and step girl child), spouses or partners regard CPF members as destroyers of families if they suggest that Protection orders should be obtained.

Some of the members even risk their lives intervening in violence within families as at times the SAPS take time to arrive and quell the situation. AT TIMES CPF MEMBERS HAVE TO LIE THAT SOMEONE HAS DIED BEFORE THE SAPS SHOW UP.

Sometimes membesr of the communities in rural areas suffer prejudice as SAPS transport is unavailable for people who are in need to be assisted with relocation from the danger of being with the perpetrator, and have to be taken to a place of safety. Also rural areas do not have places of safety nearby.

PROPOSED RECOMMEDATION FOR THE SURVEY FINDINGS

As the survey has now been finalised, follow-ups would be made and reports with recommendations would be forwarded to the responsible authorities.

Ongoing training of personnel that attends to gender based violence cases should be part and parcel of the briefing of the staff at courts and within SAPS.

Incentives should be given to staff who are able to carry out their duties notwithstanding all the hardships of balancing multi tasks for which they are responsible.

Evaluation after training of presiding officers and clerks of the curt by the Justice College or other organisations may have to be introduced so that the theory and practice can be compared.

Directives on the procedure that is supposed to be followed should be made very clear so that there should be very limited discretion on the procedures for when applications for interim protection order are made or are supposed to be confirmed.

Examples that can be given here are that:

The warrant of arrest is not given on the same day as an interim order. The warrant is only issued after the interim order has been served.
What needs to be done when a woman requests for cancellation of a protection order.
When should the oral evidence be considered as some of the applicants are illiterate and rely wholly on what has been written by the Clerk of the court in between other various tasks that he / she is involved in.
Directive on the purpose and difference between peace letter, application for protection order and counselling. And who can issue these.

Provision of shelters dedicated for women victims of gender based violence. In rural areas it was found that there are no shelters that apparently cater for various people in need of shelter

If among others there is complete collaboration and linkage between all stakeholders then the scourge of gender based violence may be reduced drastically and who knows the CGE may be able to tackle other ills within society that hinder gender equality.

CONCLUSION

Violence against women occurs in all aspects of women's lives. It encompasses abuses of women's civil, cultural, economic, political and social rights. This broad understanding of violence against women as a human rights violation has moved advocacy groups and governments to transform and expand their work.

The scourge of violence against women and children is an indictment against all of us. It is indeed a major challenge to our new democratic order. Democracy is meaningless if society cannot provide a safe environment for its women and children. If indeed the legislation that has been put in place does not address this matter adequately then other policies should be put in place to deal with the inadequacies. As it is evident that there are weaknesses with implementing agencies, then mechanisms should be put in place to assist these officials to fulfil their mandate. Communities should avoid shying away from women and children victims instead they should rally around them. The CGE would like to encourage and support efforts to mobilise men to be part of the solution in this regard.

It is our ardent hope that this initiative will go a long way towards ensuring that the noble ideals identified in our constitution are enjoyed by all without reservation. We hope to see that day when violence against women and children will be a thing of the past. It is only through such innovative initiatives that we can look forward to such a future.