SOUTH AFRICAN LAW COMMISSION
PRESENTATION TO JUSTICE PORTFOLIO COMMITTEE
Honoured chairperson(s), members of the portfolio committee(s), members of parliament, ladies and gentlemen: -
During February 1997 the South African Law Commission published a comprehensive discussion paper on domestic violence for general information and comment. The aim was to test the public's response to problems identified, and the solutions proposed by the Law Commission.
During September 1997 the Minister of Justice, Dr A M Omar MP, appointed a project committee consisting of external experts to assist with the processing of comments received in response to the discussion paper, and to steer the process towards a final report and draft legislation.
The Project Committee comprises the following individuals:
1. Ms. Zubeda Seedat: Project Leader
2. Mr. Michael Palumbo: Researcher; SA Law Commission
3. Ms. Helene Combrinck: University of the Western Cape
4. Ms. Joanne Fedler: Tshwaranang Legal Advocacy Centre
5. Ms. Lesley Ann Foster: Masimanyane Women's Centre
6. Mr. Heinz Kuhn: Magistrate; Department of Justice
7. Ms. Lilly Makhura: Northern Province Rural Development Forum
8. Ms. Rashida Manjoo: Campus Law Clinic (University of Natal)
9. Ms. Mandisa Monakali: Ilitha LaBantu
10. Ms. Mmatshilo Motsei: ADAPT
11. Ms. Fiona Stewart: Fairbridge Arderne & Lawton
12. Ms. Phydelis Zikalala: Domestic Violence Assistance Program
The Project Committee, in its deliberations, took cognisance of the gendered nature of domestic violence; the limited scope of protection afforded to victims of domestic violence; and the fact that domestic violence is a pervasive and frequently lethal problem that challenges society at every level. Violence of this nature is often hidden from view and devastates its victims/survivors physically and emotionally. Directly or indirectly, it affects the quality of life of society in general. For these reasons it is of critical importance that appropriate legislation be drafted, in order to reduce and prevent the occurrence of domestic violence.
It is clear that the law does not hold an exclusive position in either the response to, or the prevention of domestic violence. However, when victims/survivors of such violence do turn to the law for protection, the law should be effective and efficient in its response.
The Bill, which is presently in the process of finalisation, is progressive and constitutes a substantial broadening of the limited scope of the existing Prevention of Family Violence Act, 133 of 1993, which was but a first brave attempt to address the endemic problem of domestic violence in this country. The Act has had admirable success, due mainly part to the ingenuity of some judicial officers who have made the Act work, even when the means of doing so were not apparent from a reading of the Act and Regulations themselves. This Act does however contain serious flaws and shortcomings, in both the legal and social sense, and it is these deficiencies that the new Bill attempts to comprehensively address.
The proposed Bill recognises that domestic violence is a serious crime against society, that the majority of victims of domestic violence are women, and that domestic violence in and of itself is an obstacle to achieving gender equality. Having regard to the Constitution of South Africa and the international commitments and obligations of the State towards ending violence against women and children, it is the intent of the Bill to afford the victims of domestic violence the maximum protection from abuse the law can provide.
The most important provisions in the Bill, which are intended to alleviate the plight of victims of domestic violence, are the following:
* The present Act, which applies to 'parties to a marriage', is too narrow in scope and many relationships, in which abuse often occurs, do not fall within the ambit of the Act. The new Bill will offer protection to any victim who is in a 'domestic relationship' with the abuser. The proposed definition of 'domestic relationship' is sufficiently wide to cover all relationships in the domestic sphere, including cohabitation, engagement, dating or customary relationships.
* 'Domestic violence' is defined as any controlling or abusive behaviour that harms the health, safety or well being of the victim and includes physical, sexual, emotional, verbal, psychological, and economic abuse, as well as intimidation, harassment, stalking and damage to property.
* The Bill provides for an interim protection order being granted upon an ex parte application by the Applicant; and a child will be able to bring such an application unassisted. Any other person with a material interest in the well being of the Applicant will also be able to bring the application on behalf of the victim; with the proviso that all victims that have attained majority will have to consent to such an application. This interim order will provide protection to the Applicant as soon as it has been served on the Respondent, and will remain in force unless it is set aside.
* In granting an interim order, the Bill authorises the court to -
1. prohibit the Respondent from committing any act of domestic violence;
2. prohibit the Respondent from entering the shared household or a specified part thereof
3. prohibit the Respondent from entering the Applicant's residence or place of employment;
4. impose obligations on the Respondent concerning the discharge of rent or mortgage payments;
5. order the assistance of a member of the South African Police Service where the Applicant wishes to collect personal property;
6. order the Respondent to pay emergency monetary relief or
7. order either no contact or structured contact between the Respondent and any child.
* The Applicant may decline to provide a physical address in the initial affidavit; which will allay the fear of many Applicants who have fled an abusive relationship, and do not want their present address divulged to the Respondent.
* The Bill extends the Magistrate's Court's jurisdiction to grant a protection order, to include the concept of 'residence', with no specific minimum period being required, in order to found jurisdiction. Once the requirement of residence has been established by the Applicant, there is no further need to divulge the residential address of the Applicant.
* Once the interim order is granted, it will be served on the Respondent, who will then have to appear on the return date in order to show cause as to why the interim order should not be confirmed.
* The Bill provides for the automatic confirmation of the order on the return date if the Respondent does not appear; whether the Applicant is present or not. The court may therefore decide the matter on the papers, which is a radical departure from previous legislative practice. Should the Respondent appear, the matter will be adjourned for Respondent to file opposing papers, and to inform the Applicant of the date of the hearing.
* The Bill contains provisions regarding seizure and surrender of dangerous weapons or arms in the possession of the Respondent, and the possibility of having the Respondent declared unfit to possess an arm.
* The court may not refuse to grant a protection order on the basis that a single act has been committed or a single threat has been made by the Respondent, or on the basis that the acts or threats, when viewed in isolation, appear to be of a minor or trivial nature.
* In granting an interim order, the court shall issue a suspended warrant for the arrest of the Respondent, which remains in force unless the interim order is set aside. Once the order is served, the warrant is handed to the Applicant.
* If a breach of the order occurs, the Applicant, when reporting the breach to the South African Police Service, must be informed of the right to lodge a concurrent criminal complaint against the Respondent. The South African Police Service shall then arrest the Respondent, whether the original warrant is produced, or where the Applicant files an affidavit that the original warrant has been lost or destroyed.
* The Bill provides that the Respondent be criminally charged for breaching the protection order, and also with any other offence resulting from a complaint lodged by the Applicant.
It is the aspiration of the Committee to draft a Bill that will provide for an effective legal response to domestic violence; but it must be remembered that the drafting and enactment of legislation by itself does not, and will not, translate into substantive justice for victims/survivors of domestic violence. Sections 2(g) and (m) of the United Nations framework for model legislation, sets out measures that are integral to comprehensive legislation on domestic violence.
The Bill is to be workshopped once the drafting process is complete and the results of these consultations will be assimilated in the final report. Once the final report, incorporating the draft Bill, has been submitted to and approved by the full board of the Law Commission, it will then be submitted to the Minister of Justice, Dr A M Omar, MP, for his approval.