Domestic Violence Act : Responses to public hearings from Departments of Social Development, Justice, Health & SAPS

Meeting report

Responses to submissions made during the recent public hearings on the Domestic Violence Act (the Act)
Presentation by the Department of Social Development (DSD)
Ms Conny Nxumalo, Chief Director: Family and Social Crime Prevention, Department of Social Development, outlined the Department of Social Development (DSD) responses to the comments from the public on the implementation of the Domestic Violence Act 116 of 1998 (the Act).

She noted that Professor van As had raised the issue of the safety of children as domestic violence victims and the need to ensure that trauma counselling services for victims were available, recommending the development  of a preventative model for vulnerable groups such as woman and children. She responded that the DSD had developed a strategy to address gender issues within the social development sector. The Victim Empowerment Policy (VEP) guidelines stated that women were a priority target, due to their vulnerability as a group. She acknowledged that there was still a need to strengthen preventative measures. The Department had also drafted comprehensive legislation, in the form of the Children's Act, regarding the care and protection of children.

Ms Nxumalo noted that Ms Mlotshwa and Ms Mageba had raised difficulties experienced by disabled people, which included that the facilities were not accessible to people with disabilities, signage was unclear and insensitive, government officials did not know South African Sign Language and that there were no places of safety or shelters for victims of domestic violence for people with disabilities. They had recommended that shelters be established for people with disabilities, that clear signs be provided and that a service provider be trained in the needs of the disabled. DSD had taken note of the recommendations and would ensure that the infrastructure and programmes were accessible to people with disabilities. An audit would be done to ensure access by the disabled. Furthermore, the DSD would work with the South African Disability Alliance (SADA) and the Ministry for Children, Women and People with Disabilities, to ensure accessible facilities and development of inclusive programmes. The Department would also work with Non Government Organisations (NGOs) who were involved with women with disabilities, in development of advocacy programmes and awareness-raising. The DSD would advocate for mainstreaming of the disabled in all existing shelters. Lastly, it would facilitate educational programmes targeting women with disabilities to enhance their understanding of the Act.

The Women on Farms Project had stated that farm women were vulnerable to abuse, and were isolated from facilities. A lack of transport was cited as a problem, as well as access to housing to victims of domestic violence. Ms Solomons had suggested that facilities be made available in rural areas and that training be done on domestic violence in farm areas, as also that rural shelters be established. Ms Nxumalo said that the DSD had taken note of the recommendations and that farming areas would be prioritised for training on domestic violence and gender based violence issues.

A submission had been made by the Commission for Gender Equality, who had raised concerns over access to services, secondary victimisation by government officials and a lack of tangible intervention by the DSD, despite the funding of shelters. It had recommended that VEPs be accountable for deficiencies in the Act.  Ms Nxumalo noted that the DSD had already identified deficiencies on the implementation of the Act through a survey on domestic violence prevalence. She said that the results of the study would assist the DSD to review, link and integrate programmes. She said that the DSD provided counselling in cases of violence but conceded a need to strengthen outreach programmes focusing on domestic violence issues.

Ms Msomi, an individual victim, had addressed the Committee, relating her personal experience. Ms Msomi had said that she needed assistance from government as she is unemployed and a caregiver for two sick people.
DSD had referred her particulars to the relevant office to assist her in making an application for social grants.

Ms Nxumalo then turned to the submission by the South African National Civic Organisation, who had said that most women were psychologically and economically abused and that victims felt pressured not to report cases of domestic violence. They had also expressed concern that services were mainly in affluent areas. SANCO had recommended that psychologists need to be available 24 hours in all communities, and suggested that services needed to be centralised for all victims. DSD had noted these recommendations but pointed out that psychologists were a scarce resource in most areas. The issue of a one-stop centre for services was acknowledged and the DSD was going to strengthen the model that was currently implemented in four provinces and roll it out to the rest.

Ms Nxumalo summarised that National Institute for Crime Prevention and Reintegration of Offenders (NICRO) had claimed that there was a lack of a comprehensive strategy for domestic violence, and that domestic violence services were fragmented and uncoordinated. NICRO had also said there was a need for risk assessment to manage perpetrators and to have rehabilitative programmes for them. It had also raised concerns that often the seeking of a protection order in fact put a woman more at risk of injury or violence. NICRO recommended that victims should have access to psychological and mental health services and that woman should be adequately advised on how to lay a criminal charge against the abusers. DSD had noted the recommendations and this would be incorporated in the outreach programmes and training of women on domestic violence. The sector would also train service providers on trauma counselling.

In response to the individual presentation by Ms Samie, who was married under Islamic law and was deprived of her rights, being emotionally and psychologically abused, and prevented by the religious leaders from seeking a termination of the marriage, DSD could provide a supportive and advisory role, and had requested details for referral to the appropriate office.

Another presentation had been given by Ms Parmusar, who had been a victim of sexual abuse for over 10 years and had been diagnosed with chronic depression. Although she was a university graduate she was unable to  find gainful employment. She had asked that social grants be increased and services to be more widely accessible. DSD had noted the recommendations and would ensure accessibility of services in line with integrated policy on disability and international law.

The Advice Desk had contended that the issuing of protection orders could inflame an already violent situation. It had recommended that NGOs be better resourced, and called for extensive public participation in the Act. Ms Nxumalo conceded that NGOs were under funded even while they provided critical services on behalf of government, and said that DSD was continuously engaging with National Treasury to improve funding.

Tshwaranang Advice Centre had stated that NGOs were under-resourced and their officers were inadequately trained. The Centre had recommended a comprehensive strategy to end domestic violence, the establishment of more shelters and for shelters to be regulated. It further requested that a breakdown of budget for NGOs by the DSD be presented to the Committee. Ms Nxumalo responded that the DSD was aware that shelters were not subject to regulatory legislation. She said that the DSD had plans to establish and upgrade two shelters per year per province over the next five years, subject to resource availability. She said a feasibility study had been commissioned for the development of legislation to accredit services, service providers and registration of shelters, amongst others.

A submission received from the South African Catholic Bishops Conference had raised concerns that perpetrators were not held accountable and raised concerns over the role of substance abuse. It had recommended that the implications of domestic violence be taught from an early age at school and that designated officers be appointed to implement the Act. Ms Nxumalo said the recommendations had been noted and that the VEP Unit would work together with the Substance Abuse Unit in preventative programmes.

The Gun Free Society made a submission, that the 10 day response to court orders exposed women to danger and that accessibility to weapons ought to be taken seriously. They recommended that in cases where a firearm had been used to threaten a victim, that firearm should be confiscated, and that there was a need to inform victims of their rights, including the reporting of firearms. These recommendations were noted by DSD.

A submission made on behalf of Shelter Network raised concerns on access to housing, and shelters for male victims of domestic violence. It suggested that there should be standardised funding for shelters and that the Human Settlement Department should be part of an integrated approach. The DSD had noted these concerns. It had established a partnership with the National Shelter Movement and that they are also part of the VEP National Management Team to provide strategic direction for shelters to be managed effectively and to be accountable for services rendered.

The Legal Resources Centre had recommended that government increase current finding for shelters, and had noted that currently the shelters had to rely on donor funding for other operational costs and skills development programmes. This was dependent on the creative and innovative efforts of shelters. The DSD had noted these comments and agreed that there was a need for benchmarking to improve services. DSD was currently developing a best-practice one stop model for victims of crime and violence.

The Centre for the Study of Violence and Reconciliation had expressed concerns that domestic violence was taken seriously only when there were serious injuries, and these concerns and comments were noted by DSD.

Discussion
Ms P Duncan (DA) asked how many social workers had been trained since 1994. She said she found it disturbing that there was talk of rehiring retired social workers.

Ms Nxumalo said that an analysis had been done of all social workers who had taken a package and that there was a need to recruit new social workers as soon as their studies were complete. She said DSD was engaged in a training drive and that money had been allocated from the National Treasury for this. DSD was also involved in training social auxiliary workers.

Mr D Kekana (ANC) said he found it disturbing that there were plans for only two shelters per province. He said that sounded like a generic solution which did not take into account the differences between rural and urban areas. He recommended that a more specific programme was needed.

Ms Nxumalo responded that DSD was constantly engaging with National Treasury on this matter.

Mr Kekana also asked about services provided to domestic violence victims in rural areas.

Ms Nxumalo said that DSD did have satellite offices in farm communities but conceded there were very few permanent offices in rural areas.

The Chairperson commented that was a need to work with Department of Human Settlements on this issue.
Ms D Robinson (DA) also expressed concern that the DSD only planned to increase shelters by two per year in each province. Although she also noted the intention to build in rural areas, she wanted to know exactly where these would be built, pointing out that there were vast distances to be covered.

 The Chairperson asked about the relationship VEP had with police stations.

Ms Nxumalo replied that the VEP was an inter-sectoral initiative, of which South African Police Service (SAPS) was an integral partner.

Mr Kekana commented that none of the submissions received suggested that any part of the Act should be changed. Instead, the concerns were directed towards implementation.

Ms H Malgas (ANC) echoed this, stated that there was nothing in the presentation to suggest that the Act itself, or a particular clause was problematic.

Presentation to the Committees by South African Police Service (SAPS)
Ms Mbali Mxadi, Director: Children, Women and Gender Based Violence VEP, SAPS said that her submission was divided into two parts, one that would give a direct response to the issues raised in the public hearings and secondly, one dealing with specific legal issues and recommendations.

She noted, in regard to the training of police officers, that all officers underwent a five day training programme on domestic violence. This included the social context of domestic violence (for example, the reasons why victims may lay a charge on Friday and than withdraw the charge on Monday), the  relevant legislation, namely the Domestic Violence Act and the Criminal Procedure Act, victim support and practical skills such as victim protection and securing the scene. She emphasised that police should be the last resort with regard to service of protection orders.

It had been suggested that Independent Complaints Directorate (ICD) should be contacted when a police officer failed to carry out his duties. However, she was of the opinion that the first option before the ICD should be the station manager.

In regard to monitoring, she noted that SAPS tried to do monitoring on an ongoing basis. She said that that SAPS was already a part of the local Integrated Development Plan, which also included municipalities and local government departments, but there was a need to indicate what had to be done. The SAPS was also in communication with Community Police Forums (CPFs) on this issue.

In regard to the problems around disabled access, she confirmed that ramps were installed at police stations.

In regard to the problems with arrests, she conceded that SAPS had failed to communicate to communities and NGOs the circumstances under which an arrest could be effected. She stated that arrests could be made without a warrant at the scene of the crime, but only if an act of violence was already committed. A person could be arrested if he or she violated a protection act, but a provision in the Act stated that he or she may also be arrested if imminent harm would otherwise result. She emphasised that this section did not compel a policeman to arrest a perpetrator, but was discretionary.

In regard to the issues raised on the Victim Empowerment Programme, she noted that although volunteers were trained and provided by Department of Social Development she would prefer it if police reservists rather than volunteers were used when victim counselling was to be done on police grounds. She said that volunteers were not under the command of the station manager and that this led to conflict.

Community policing forums normally assisted in awareness campaigns, but they did not function as well as they should in all districts.

Ms Marga van Rooyen, Senior Legal Official, SAPS noted that SAPS was committed to the implementation of the Act. In response to complaints that police seemed indifferent, she said that it was very difficult for policemen to switch their mindset and adopt a different strategy. If a complainant was unhappy with the service provided by a police officer, she or her should first complain to the station manager and then, if no satisfactory action was taken, to the Independent Complaints Directorate (ICD). She said that if an investigation revealed that a police officer had failed to comply with statutory obligations, the police would need to apply to ICD for exemption from disciplinary action.

Ms van Rooyen said that several misunderstandings were evident from the submissions received. One frequently-voiced complaint had related to the failure to arrest a person who violated a protection order. She said that if a person was automatically arrested it could leave the complainant worse off, especially if that person was  economically dependent  on the perpetrator.

A second, frequent misunderstanding was a complaint that there were no crime figures and domestic violence statistics. She explained that there was no crime of domestic violence, as such. Domestic violence often consisted of several criminal acts such as sexual assault, assault GBH and murder, amongst others.

Ms van Rooyen then addressed several other issues that arose out of the public submissions. In regard to the complaints about lack of privacy given to complainants when laying a charge, or at the community service centres, Ms van Rooyen explained that SAPS was upgrading all police stations, but this was subject to budget allocations. However, all new stations built would have facilities to enable domestic violence victims to speak in a private environment.

Ms van Rooyen said a process was also in place to include the number of female officers to attend to domestic violence complaints.

Ms van Rooyen suggested that the Community Policing Forums should be utilised as a vehicle between police and the community, as well as a means to educate communities on gender sensitivity.

In regard to the firearms, she noted that if an abuser threatened to kill himself or a family member, an inquiry into his fitness to own a firearm could be made.

Ms van Rooyen then considered specific legal issues. She noted that protection orders sometimes conflicted with each other. For example, one party would obtain an order prohibiting the other from entering their shared residence, while the other independently would independently obtain an order prohibiting the first party from entering the same shared residence. This had actually happened, it was not purely theoretical. Any policeman called to enforce either order would, if he took any action, be violating one of the orders. She suggested that any party applying for a protection order should be obliged to place information on all protection orders applied for or issued, for and against that party, before the Court.

Section 7(2)(b) allowed a complainant to retrieve personal property from the shared residence while accompanied by a police officer. However, “personal property” was not defined and in the past, charges of theft had been laid against the complainant and charges of being an accomplice to theft against police officers. She recommended that “personal property” be defined.

Amendments were also needed to clear up ambiguities as to the validity of a protection order.

Ms van Rooyen conceded that the lack of shelters was identified as a serious problem.

If a complaint was received of domestic violence in a private residence, the police could only enter with the permission of one of the occupants. In practice, it would often happen that neighbour called the police, and the police would try to investigate but would be denied entry by the abuser who answered the door. She suggested an amendment to Section 26 of the Criminal Procedure Act, to allow police to enter private residences without permission where domestic abuse was suspected.

Presentation by the Department of Justice and Constitutional Development
Adv Shireen Said, Chief Director: Vulnerable Groups, Department of Justice and Constitutional Development; (DOJ) briefed the Committees on an assessment of the court processes and systems in the implementation of Domestic Violence Act. She noted that the purpose of the assessment was to identify strengths and weaknesses in the administrative and management systems and procedures, and to identify steps to strengthen the quality of service in its implementation.

Three provinces and three magistrate's courts per province were selected. An assessment was done of 50 Court records per site and interviews were conducted with personnel, such as court clerks, magistrates and procedures. Studies done on the implementation of the Act were also considered.

The findings indicated a lack of prior costing, which negatively impacted on proper training, monitoring and record keeping, including court records. Unsigned protection orders were also identified as problematic, and although they were small in number, they affected the validity of the protection orders. Weak administration and management was also cited as a problem. Capturing of the use of dangerous weapons was not done on an application for a protection order, with a possible negative outcome for the applicant. Inadequate court record management systems, and inadequate management of records between the courts, police, and the Sheriff was also cited as problematic.

There was also an inadequate linking between civil and criminal matters arising out of the same set of circumstances. Lack of adequate infrastructure and human resources at court was also a problem. There was a need for greater interdepartmental cooperation regarding policy, monitoring and enforcement.

Adv Said recommended the development of domestic violence protocols between the Department of Justice, community organisations, SAPS and shelters. She further recommended that a domestic violence task team be appointed. Specifically in relation to the DOJ, she recommended that the DOJ establish and co-ordinate a domestic violence plan, which would include training of judicial officers and placing of clear signage to all domestic violence sectors in courtrooms.

In relation to other role players, she recommended that the departments should develop costing and cost tracking tools for domestic violence, and facilitate the establishment of an Integrated Case Management System which would monitor time cycles for applications and for service of protection orders.
 
Presentation by the Department of Health (DOH)
Dr Nat Khaole, Director: Women's Health and Genetics, Department of Health, answered questions posed by the Committee at an earlier meeting.

He noted that in 2004, the DOH had developed a strategy plan for gender based violence, which involved counselling and collection of forensic evidence. A number of policies were developed and these were in the process of being updated. He said that the DOH recognised that the Act, like all statutes, was dynamic and needed to cater for changing needs. He added that the DOH did train health personnel and had a manual for the treatment of gender-based violence victims.

He said that all sexual assault victims, including domestic violence victims were considered high risk for exposure to HIV/Aids. Therefore, the DOH had post-exposure prophylactics available. There were also enough evidence collection “rape kits” at health facilities around the country, and that they were replenished when required. There were only two indicators in the DOH for recording of domestic violence incidents. Both were, however, linked to sexual violence. He conceded that other statistical records were also important and that these should perhaps be included.

The meeting was adjourned.