GBV Bills briefing; with Deputy Ministers

Meeting report

Opening Remarks by the Chairperson

The Chairperson opened the virtual meeting, welcoming the Members and guests in attendance at the meeting. The Deputy Minister of Justice and Correctional Services was in attendance.

Today marks the third day after the celebration of the longstanding stalwart of the ANC, Oliver Tambo. We salute his leadership. She also congratulated Ms Tsakane Maluleke (the first woman to be appointed as Auditor-General South Africa), Miss South Africa; the newly elected President of Universities, Lebogang Magoshe Nkabule and Lerato Ndlovu at the University of Pretoria. The Committee is proud of them and this shows that women are getting somewhere and doing things for themselves.

The Multi-Party Women’s Caucus has identified Gender-Based Violence and Femicide (GBVF) as a priority. Article five of the Summit held by the President of South Africa on 1-2 November 2018 deals with identifying gaps of the existing GBVF laws and being more victim-centred and responsive. Currently, there are three gender-based violence Bills before Parliament and the Committee of Justice and Correctional Services. The Bills aim to strengthen the justice system and cause it to be more responsive. The Multi-Party Women’s Caucus (MPWC) has a role to play even though it is not responsible for processing this legislation, but has to be an advisory body on issues affecting women and cannot be silent.

The agenda was unanimously adopted.

Deputy Minister’s Remarks

The Deputy Minister of Justice, Mr John Jeffery, made brief comments saying that the GBVF Bills arose from the Presidential Summit which aims to tighten legislation. This would entail an amendment of the Domestic Violence Act. There needs to be a system where protection orders are granted by the court and if these orders are broken, perpetrators can be arrested. The Criminal Matters Amendment Act deals with tightening bail conditions, longer sentences and extending services of the intermediary. For example, if a child or a mentally disabled person is being affected, they would be able to provide evidence in court through an intermediary who will put the questions to the court and relay the information back to the victim. This service can be extended to vulnerable persons via application to the court.

There have been consultations with stakeholders and the Bills have been subject to public comment earlier in the year. The Department was asked to extend the time for this especially due to the COVID-19 pandemic. A number of submissions were made and the Bills were then submitted to Parliament.

GBV is a broader, complex societal problem. It is men who are beating, abusing and killing women. In many cases these men are strangers, intimate partners or former intimate partners. There is not any switch that can be clicked to suddenly transform this which is why legislation on its own cannot be the cure. Legislation is part of a strategy to solve GBVF. The Bills are aimed to assistance GBVF victims and ensure that prosecutions take place.

The Deputy Minister handed over to Ms Theresa Ross, Principal State Law Advisor, Department of Justice and Constitutional Development (DOJCD).

Ms Ross introduced the presenters for the presentations.

Criminal Law (Sexual Offences and Related Matters) Amendment Bill, 2020

Ms Ina Botha, Principal State Law Advisor, DOJCD, presented on the Sexual Offences Amendment Bill.

The Bill deals with offences and reporting duties on children or persons with disabilities and the National Register of Sex Offenders where names of perpetrators will be listed. Some provisions have been changed and more offences have been added.

The first category of amendments the Bill aims to introduce involves a new offence of sexual intimidation. Usually in criminal law, when one is threatened, it is already an offence however this is extended to protect persons from threats of imminent sexual harm. The offence of incest will also be extended to provide additional protection to children. Clause 3 aims to extend the ambit of section 12 to include acts of sexual violation and not only acts of sexual penetration where children are involved. 

The sexual intimidation clause provides that a person who inspires the belief in another person that he or she will be sexually violated, is guilty of the offence of sexual violation. Clause 4 aims to introduce a new offence of “sexual intimidation” in order to prohibit persons from intimidating others into believing that they will be subjected to or forced to commit certain sexual offences

Section 12 of the principal Act criminalises incest, namely, acts of consensual sexual penetration between persons who may not lawfully marry each other on account of consanguinity, affinity or an adoptive relationship. The question was raised whether the protection afforded to children against sexual penetration could not be extended to include acts of sexual violation. Clause 3 aims to extend the ambit of section 12 to include acts of sexual violation and not only acts of sexual penetration where children are involved.   

Ms Botha said consequential amendment refers to some parts of the Act which have been amended and as a result has affected other sections of the Act which now also need to be amended. Section 56(4) needs to be amended since the incest section has been amended.

Section 54 details obligations on reporting to the police when a sexual offence is committed against a child or someone who is mentally disabled. In terms of this section a person who has “knowledge” that a sexual offence was committed against a child must report such knowledge immediately to the police.  A person who, on the other hand, has “knowledge, reasonable belief or suspicion” that a sexual offence was committed against a person who is mentally disabled must report it immediately to the police. Clause 18 aims to ensure that the reporting duty is the same in respect of the aforementioned groups

Chapter 6 aims to expand the scope of the National Register for Sex Offenders (NRSO) to include the particulars of all sex offenders and not only sex offenders against children and persons who are mentally disabled; expand the ambit to include other vulnerable persons, namely, female           persons between the ages of 18 and 25, persons with physical, intellectual or mental disabilities and persons 60 years of age or older who, for example, receive community based care and support services; and increase the periods for which a sex offenders’ particulars must     remain on the NRSO before they can be removed from the Register

Clause 16 of the Bill differentiates between cases where offenders are given the option to accept a fine or six months imprisonment. In this case, the offender’s personal details will remain on the Offenders List for seven years. If a sentence exceeds six months, but is less than 18 months, this will be changed to 20 years. If a sentence of imprisonment above 18 months is given then an offenders name can never be removed from the Sexual Offenders List. The names of sexual offenders must also be placed on the website of the Department.

[See presentation document for more details]

Domestic Violence Amendment Bill

The Bill stems from the Presidential Summit of 2018. The Bill carries some financial implications as various departments such as the Health, Social Development, Police, Justice and Correctional Services, Constitutional Development, Basic Education, Higher Education and Training and Communication and Digital Technologies. The financial implications are due to the upgrading of the criminal justice system to provide for the capturing of domestic violence orders on an integrated electronic repository. The law is not a solution for victims of domestic violence, but the law should be effective and efficient in its response.

The Domestic Violence Act (the Act) provides for an interim and/or final protection order, with a suspended warrant of arrest. Key challenges relate to implementation and uptake of this remedy

The amendments seek to:

-optimise collaboration between departments to streamline provision of services within existing mandates;

-simplify and clarify the roles of all relevant stakeholders by expressly including the services to be rendered;

-enhance the application of the Act to provide the maximum protection available through a civil process; and

-address identified gaps or shortcomings which impact on the optimal implementation of the Act

The salient amendments seek to:

-Amend the Act to address language, practical challenges, gaps and anomalies which have manifested themselves since the enactment of the Act in 1999;

-Align the Act with the Protection from Harassment Act, 2011;

-Expand the definition of domestic violence to expressly extend protection to the elderly; clause 1(f)(hA)

-Provide a secure online application for a protection order; clause 4(1A)

-Establish an integrated electronic repository to hold all documents relevant to the issuing of protection orders; clause 6A

-Provide for services by other critical role-players including medical practitioners, social workers and teachers, coupled with directives for relevant departments clause 18A, B. Service provision includes reporting, screening, counselling, referral to a suitable shelter, and provision of medical treatment; clause 2A

-Oblige all with knowledge that an act of domestic violence has been perpetrated to report it to a social worker or to the South African Police – and to criminalise non-reporting; clause 2B

-Provide for arrest without a warrant by a peace officer at the scene of domestic violence; clause 3(1)(a)

-Provide for mandatory arrest where there is physical violence; clause 3(1)(b)

-Enhance the powers of the South African Police in terms of search and entry of premises; clause 3A

-Oblige the court to order the seizure of any weapon regardless of employment requirements & conduct an enquiry in respect of the Prevention and Treatment for Substance Abuse Act, 2008 (Act 70 of 2008) and commit the respondent to a treatment centre for substance abuse; clause 9(1)

-Enhance penalties and recognise repeat or serial offenders with regard to sentencing; c 17

-Provide for mandatory prosecution where a weapon is used; the victim has sustained a dangerous wound or is assaulted with the purpose of inflicting grievous bodily harm; c18(1)

-Amend section 47 of the Superior Courts Act, 2013 to provide for an application against any judge of a Superior Court without prior permission being granted; clause 20

Criminal and Related Matters Amendment Bill 2020

Ms Virginia Letswalo, State Law Advisor, DOJCD, presented the Criminal Matters Amendment Bill.

The Bill aims to amend the the Magistrates’ Courts Act, 1944 (MCA); the Superior Courts Act, 2013 (SCA); the Criminal Procedure Act, 1977 (the CPA); and the Criminal Law Amendment Act, 1997 (CLAA), to address gender-based violence and femicide-related offences and to afford protection to victims of such offences against victimisation during legal proceedings. These amendments relate to: the use of intermediaries; the use of audiovisual links (AVL) to give evidence; clarification of the concept of viva voce evidence; bail; the right of a victim in respect of parole proceedings; the entitlement of the state to appeal a sentence imposed by a High court sitting as a court of appeal; clarification of the offence of assault in Schedules to the CPA; and minimum sentences.

The provisions of the Bill relate to evidence through intermediaries/AVL, regulating of bail, parole and appeals, assault and minimum sentences.

[see presentation attached for detail].

Presentation by the Researcher

Ms Joy Watson, Senior Parliamentary Researcher, presented to the Committee.

The three GBV Bills tabled in Parliament can be tracked to the Summit on GBV held by the President in 2018. This is one of several interventions which were coupled with the National Strategic Plan on GBVF and the establishment of the National Council on GBVF.

Parliament should consider these Bills and come up with the best possible versions of it that includes public opinion.

Domestic Violence Amendment Bill & Criminal and Related Matters Act Amendment Bill

Key in these definition amendments should be the role of controlling behaviour. Clarifying the definitions of domestic violence are welcome additions to the Bill as they assist in understanding.

The Bill also introduces a new form of harassment such as spiritual harassment/abuse. This is defined as insulting or ridiculing a complainant’s religious beliefs, preventing a complainant from practicing their religion or using those beliefs to control, manipulate or shame them.

There are some areas which should be considered in terms of these definitions.

The first issue that arises is that the Bill has excluded stalking as an act of domestic violence and stalking is a form of domestic violence which has been proved by studies that were conducted. These studies have shown that stalking is a pivotal part of how intimate partner violence plays out.

The Bill says that weapons include an object that could cause grievous bodily harm. If a firearm is used, the DVA makes provision for the removal of that firearm. It should be considered whether firearm licenses should be suspended for a certain period of time in such instances.

The court is empowered to remove a firearm and it will be dealt with according to the Firearms Control Act. It was suggested that there should be a timeframe stipulated by the court for the seizure of the firearm but unfortunately this cannot be done in the DVA as it is regulated in the Firearms Control Act.

The definition of intimidation requires the use of imminent harm and this should perhaps be revised to recognise the element of harm which is sufficient to be considered an act of domestic violence.

The requirements of sharing a residence or property within the preceding year should also be reconsidered. In this definition, there is an introduction of a timeframe which might be problematic in the sense that it limits the recourse available to victims. In practice, there are situations where someone is in a relationship with a perpetrator of domestic violence who is away from the residence for a period of more than a year, who then returns home and is violent. For example, the perpetrator is in prison or works away from home for an extended period of time.

The meaning of interest in the disposal of housing must be reconsidered as it places a burden on the victim to show that she has an interest in the property. She should merely state that she has an interest in the property.

The court does not penalise any party with costs, but depending on the conduct of the party during the proceedings, the court is entitled to penalise a party with a cost order. Economic abuse is contained in the Bill and the court can issue a protection order for this.

Online applications for protection orders are a welcomed change. However, the court needs to inform the applicant on whether the application has been successful. The processing of the application should be completed on the same day that it is lodged.

The practical matter around uploading protection orders to the repository is due to protection orders getting damaged or lost. All documents in the application have to be uploaded to the central repository. Respondents can move across provinces, which is why the repository should be centralised so that it can be established in any province whether the respondent has a protection order against them.

The insertion of section two into the principal Act should include healthcare practitioners and social workers who are asked to assist. Once they become aware of an incident of domestic violence, they are then obligated to assist and refer the victims to obtain other services.

A person who is aware of acts of domestic violence is obliged to report it regardless of whether the victim is an adult. Research has shown that mandatory reporting policies do not have a positive effect. This takes away from the agency of a person and their ability to make informed decisions for themselves. Here, the person is not given the freedom of choice. Those who work with victims of domestic violence have made a strong case about considering at what cost this would be to the victim.

A victim might be concerned about her safety if someone else makes a complaint on her behalf. This might prevent a woman from accessing healthcare given that healthcare practitioners would be obliged to report it to the authorities. For some women it is a journey to get to a point where they take action. They should be allowed the freedom to do this.

Vulnerable persons are those with physical, mental or intellectual disabilities and those over the age of 60 who receive community-based care or live in a facility. All women are generally vulnerable to sexual offences and it is inadvisable to rely too much on statistics as in this case it does not paint an accurate picture. This is because many women do not report on this. Children and babies are also included in those considered vulnerable.

The argument on the development of the brain reinforces a notion that it is one’s own responsibility to stay safe. This implies that it is a woman’s job to ensure that she stays safe, but this is incorrect because it is the perpetrator’s job not to rape.

The problem with making a register of perpetrators of domestic violence public is that it opens up the potential for people taking the law into their own hands and taking action against those listed on the register.

The National Prosecuting Authority (NPA) is only required to provide reasons to a victim on why it has decided not to prosecute when a victim requests this. Victims do not have an automatic right to this. The NPA always indicates that there are no reasonable prospects of a successful prosecution. This lack of detail in the reasons limits the rights of victims. The NPA should inform victims in writing.

Dr Barbara Loots, Parliamentary Legal Advisor, highlighted that during public hearings concerning GBVF, a theme of gender identity with the LGBTQIA+ community emerged as an issue. She agreed with Ms Watson that statistics are deceiving and it should instead be considered what makes a person vulnerable.  

Discussion

Ms Z Nkomo (ANC) said that the Committee was always clear on its stance about no bail for perpetrators. Perpetrators should remain in custody until a court has proven otherwise. In cases where there is more than one offender of a gang rape, all perpetrators should be treated the same way. We need to emphasise the implementation of the Bills so that it performs its intended function. Stalking and harassment should be covered in the Bill and spiritual harassment is a welcome addition. There is a rise in cases where women are taken advantage of by senior community leaders such as pastors who should face consequences.

Economic abuse is also an issue. Information of abuses should be centralised into one database. If a case is set aside women could be killed. Parole is a danger to victims. The National Register for Sexual Offenders should be made public for employment purposes. If there is no bail for perpetrators, the Bill of Rights should be considered. Perpetrators should evacuate their homes and not victims. She referred to a television show called ‘Uyajola 9/9’ and the violence shown in the media and said this should be regulated to be educational and benefit young men in how they should deal with certain issues.

Ms R Moatshe (ANC) said that Ms Nkomo captured her thoughts accurately. She agreed that the LGBTQIA+ community and the elderly community must be included in the definition of those who are vulnerable. She said there should be no bail for perpetrators regardless of whether they are a first-time offender or not. She said that is should be suggested that after perpetrators are charged, samples of DNA must be collected.

Ms W Newhoudt-Druchen (ANC) said she was happy that the definition of vulnerable groups was expanded. There are deaf children who cannot report on abuse because they do not know how. Currently, the deaf community is faced with a challenge because the court says that they have sign language interpreters but not a qualified interpreter who works at the court and knows an old dialect. The judge then refuses to let other sign language interpreters into the court. Deaf social auxiliary workers should assist the court. When a person is abused, their developmental stage relapses; so it does not matter what age someone is as they become vulnerable and cannot be neglected based on age. All abused women are vulnerable. She asked why the Department continuously refers to financial issues when the President has already made a declaration that GBV is a pandemic. Hearing about financial constraints causes us to feel despondent. She asked for clarity on the financial implications. Two weeks ago, South African Police Services (SAPS) indicated in a newspaper that police officers have GBV cases against them and they carry arms. Some women are abused by SAPS; for example, the police refuse to record a case. If we are willing to criminalise the neighbour or child seeing their mother being abused for not reporting, then this must be balanced out. When children who are sexually abused or raped cannot explain themselves, prosecutors throw out the case due to lack of evidence, but the judge needs to make a ruling and not the police or prosecutor. We need to be proactive. Bullying online is also happening and the Act is silent on this. What counselling is offered to perpetrators? They need to be sent for compulsory counselling when being sentenced.  

A member of the Committee’s research team said there is a provision in the Bill which entitles the court to make an order that is aligned with what the circumstances require. If the circumstances require the respondent to undergo counselling, the court will do this. If it becomes compulsory, this means all respondents will have to go for counselling even when it is not necessary.

Ms N Sharif (DA) said when she joined public hearings it was a bit overwhelming to understand what was going on. She asked for clarity on the definition of sexual violation and sexual penetration. She commented on vulnerable people saying that it is concerning that people older than 25 are not included and as a 30 year old woman she knows she is at risk every day. She indicated that she has spoken to people and heard many stories and most times age does not matter to men who inflict abuse. It should not matter what one wears or looks like; women are continuously at risk.

She supported the comments of the Members who spoke before her. She also supported the online application process for protection orders as it would lessen the trauma of survivors. She asked for clarity on the online repository. What happens in the case of women who are not in community-based care?

A member of the Committee’s research team said the application should be dealt with as soon as possible. There are courts that can process protection orders on the same day, but if this is done, it will impose a provision that will implicate all the courts.

Mr Henk Du Preez, Senior State Law Advisor, DOJCD, said that the term “sexual act” refers to both sexual penetration and sexual violation. When the legislature enacted the new sexual offences legislation, one of the main purposes was to draw a clear distinction between two aspects: a clear distinction between sexual penetrative acts and non-penetrative sexual acts. Gender-neutral wording was used. When one considers rape, it is gender neutral in that a male can be raped by a male or a female by another female. He highlighted that the proposed amendments refer to sexual offences contained in the Act such as against children and the mentally disabled. He emphasised that no offence would be excluded under the ambit of Chapter 6 of the Act.

He said he could not agree more that all women should be considered as vulnerable, but the consequences of this needed to be considered. The register provisions, as it stands, apply to potential employers and employees. For example, if there are 600 000 employees affected by the register provisions as it is now, they would be prohibited from working with children or persons who are mentally disabled if convicted of such sexual offences.

If the ambit of Chapter Six of the Act is expanded to include more vulnerable persons, it has a knock-on effect on the number of employers and employees that are affected. If one says that all women are vulnerable then it would be practically impossible for all who have been convicted of a sexual offence to be employed anywhere in the country.

Prof Hlengiwe Mkhize, Deputy Minister in the Presidency: Women, Children and People with Disabilities, said she agreed with Members and commented on vulnerability. The Department has to properly articulate in law about the victims aged 16-25. Does it imply that other women are less vulnerable? We need to find a balance in this articulation. There is more vulnerability in younger women than slightly older women. We cannot use outdated theories that look at cognitive, neurological issues and make women feel like they were victimised because they young and immature. Disabilities are not clearly understood by everyone. She said that she knows of children who are autistic and are misunderstood virtually everywhere. There are still some instances where cases have been dropped using instances where animals have been slaughtered and cultural and tribal reasons have been given for this.

Ms N Sihlwayi (ANC) said all rights are contained in the Constitution, but the justice system is the problem in addressing these issues. There is a clause which talks about sexual penetration and sexual violation which needs to be clarified. It seems as if the violation is lesser when it is not sexual penetration. Many have experience with protection orders and perpetrators have a very clear relationship with the police. Protection orders are not implemented as they should and they are not served to perpetrators as they should. Sometimes complainants are disabled from getting a protection order and courts have discretion on whether to allow a relative to do so on their behalf. For example, if one is raped and does not report it and is told at a later stage to report it, police then say that evidence is gone. This destroys and dehumanises victims. Evidence of rape will be discovered regardless of time. This issues needs to be addressed. A person who is raped needs to be scrutinised mentally as the person will not be okay. A woman who has been abused economically or raped by her husband needs to be assisted as a vulnerable and disabled person when she appears in court as she has been suffering. Tools need to be applied to assist her. There is a power in churches which dominates the youth.

She agreed with Members stance on opposing bail for perpetrators. The matter of Pastor Omotoso should be looked into. Two years have been spent discussing the bail, but nothing has been done about the vulnerable. Perpetrators should leave the place of residence and not the abuse. The Justice system needs to review this. The victim should remain in the comfort of her own home and the perpetrator should leave. Victims are taken to spaces where there is not even a toilet inside. The matter is not about a first offender or second offender and how many times a rape took place is irrelevant. The victim gone mentally and this stance needs to be reconsidered. In a gang rape all perpetrators must be dealt with equally as this would have been a dehumanising act that takes away one’s womanhood. Rights should have limitations. You could have done a bad thing for which there are consequences.

A member of the Committee’s research team said that the Domestic Violence Act itself was not the problem, but the main issue is the implementation of the provisions of the Act.

Ms J Mofokeng (ANC) thanked the Committee on Women for being a part of deliberations. She agreed that stalking should be included in the definition of harassment and domestic violence as a sharp legal practitioner will present definitions from three different dictionaries. Stalking also takes place online. Spiritual abuse is also very relevant. Only one view disagreed with spiritual abuse, which questioned why this was this should be the case. We presented an example of the Pastor Omotoso case. We need to be mindful of other harmful practices in churches. Protection orders should allow women to remain at their residence as they suffer a lot. Oversight must be done on police who do not implement protection orders. Orders must be centralised so that perpetrators will be known regardless of where they move. Withdrawal of orders must be done in court hours. Public submissions have indicated that police officers, prosecutors and magistrates should specialise in domestic violence when dealing with such cases. Many legal practitioners have advised that the offenders list should not be made public, but this should be reconsidered. A very good document was presented by the Rape Crisis and the researchers should obtain this document to consider implementation issues.

Responses

An official from the DOJCD said that stalking was a big issue and in some instances many role players misunderstand this. Stalking is incorporated under the definition of harassment. The two Acts, Protection from Harassment and Domestic Violence Act will be merged. The court is entitled to order either the respondent or complainant to vacate the shared residence depending on the circumstances.

Ms Botha said that there are three or four questions which she would ask her colleague to respond to.

The Chairperson said that some responses could be sent to the secretary of the Caucus and this could then be sent to Members.

Ms Botha thanked the Committee for the new ideas it presented that should be taken into account. If the register is made public and people take the law into their own hands as was expressed earlier, it should be noted that the register is not actually made public. She did not think that anyone has not heard on the radio of Bob Hewitt and the tennis player he raped and being convicted after so many years. There is a lot of media reporting on cases such as this and all court proceedings must remain open. For instance, if the court proceedings involve a child that is raped, they cannot be made public.

She reminded the Committee that sign language will be considered as an official language and all the issues surrounding sign language will be sorted once it is amended in the Constitution.

An official from the Department said it was not trying to run away from financial issues. The central repository will require financial assistance.

Ms Sihlwayi said she would like to make a formal request for the Women’s Caucus to look into Pastor Omotoso in Port Elizabeth, on bail over the past four years.

The Chairperson said she would be in touch with the Steering Committee about this matter.

The Chairperson made brief closing remarks and thanked all Members for attending.

The meeting was adjourned.