THE OFFICE OF THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS SEXUAL OFFENCES AND COMMUNITY AFFAIRS UNIT
REPORT ON THE DEVELOPMENT OF LEGISLATION AND ITS IMPACT ON THE LIVES OF WOMEN 10 YEARS POST DEMOCRACY.
Law reform activities have seen to the development of an impressive legal framework for the general South African public and women in particular. The ambit of this report id limited to issues of violence against and abuse of women. We will therefore deal with issues of sexual offences, domestic violence and maintenance.
The issues of maintenance are included for they are often termed and often amount to economic violence and abuse of women.
RAPE AND OTHER SEXUAL OFFENCES
This area of the law is still largely regulated by both the common law and the old Sexual Offences Act (Act 23 of 1953).
Attainment of democracy has seen the issues of gender-based violence being brought to the fore and receiving unprecedented political attention. The prevention of sexual violence against women and children has been declared a priority by the President and the South African government. In order to understand the severity and widespread nature of this crime, we need to take into account some of the broader aspects of violence in our society.
Despite a slight improvement in recent years, our reported rape figures are still unacceptably high. The reporting rate of all crime types, including rape, has gone up since the early 1990s, which would seem to indicate a renewed confidence in the criminal justice system.
Rape is defined by social attitudes as well as by law and both attitudes and law have changed considerably in recent decades. The South African Law Commission has recommended that the current legal definition of rape must be changed to cover all sexual crimes and become gender neutral so as to include, amongst other things, the rape of males. This redefinition will have welcome changes in the jurisprudence of sexual offences in South Africa. It will include all sexual penetration that occurs in coercive circumstances. This will in the end hopefully include the application of force, threats, abuse of power or authority, the use of so called rape drugs and so on.
Rape is complex because rapes differ by the nature of the relationship between the offender and the victim, the underlying causes of offender behaviour and victim response, as well as the circumstances in which the rape occurs. Again offenders vary by the type of rape they commit, the circumstances in which they rape and the selection of their victims. Victims also differ in their relationship to the offender, in their opportunity and capacity to manage exposure to risk and their capacity to cope with and manage victimisation. These factors militate against efforts to detect
imminence in and prevent the occurrence of sexual offences.
Despite the current high levels of reportage of sexual offences it is widely acknowledged that it remains an under reported category of crimes. There has been growth in the understanding of the social and economic costs of rape particularly the effect it has on the 'non-victim' population, heightening their fear of crime and further restricting their life-styles. It is not just the victim who
suffers the consequences of sexual violence especially rape: the ripple effect is wide and far-reaching. Consequences of post-traumatic stress disorder results in unhealthy communities and limited economic activity among women.
Health consequences become particularly severe where those committing rape are extremely likely to be- HIV positive or suffering from AIDS. In those circumstances the victim is put under secondary jeopardy of being likely to become ill, HIV-positive or infected with a sexually transmitted disease as a result of the rape. There is also a strong likelihood that she may pass infections or diseases on to others. The overall result is likely to be a dramatic reduction in the quality of her life and that of her
family and those around her.
A lot of investment has gone into efforts of ensuring the efficient management of sexual offences as will be seen in the initiatives highlighted hereunder. These are only some of the efforts and many efforts straddle a number of departments, institutions and agencies. The SOCA Unit was created by presidential proclamation of 15 September 1999 to introduce best practise initiatives in the prevention, management and prosecution of violence against women and children.
1. Standardisation of Services to Victims
A process was initiated by the SOCA unit 2003 at the consultative workshop involving various Government Departments and NGOs held on 19 – 20th of November 2003. The overall objective of the standardisation process is to have standardised court preparation and victim support services applicable throughout South Africa. A 20 member task team was appointed to design a framework which will deal with the following issues:-
a) Design and accreditation of learnership material to inform identification, recruitment, training and development of victim/witness support and preparation services.
b) Development of minimum standards for accreditation and certification of service providers and individuals rendering such services to victims.
c) Development of mechanisms to ensure accountability accessibility and capacity of services and service providers.
Structural Regulation of minimum standards
a) What we would like to see in the Sexual Offences Bill/Act are :
• Creation of minimum standards. This must ensure:
i That there is a balance between the needs of the victim and the effectiveness of the criminal justice system (CJS).
ii. The minimizing of the risk of contamination of the evidence of the victim as a witness/potential witness.
iii. Uniformity and appropriateness in dealing with the different ages and maturity of the victims inclusive of the distinction between the chronological age and the mental age.
iv. Promotion of equal application and access throughout the country barring in mind special needs and circumstances of vulnerable.
The Cabinet member responsible for justice and constitutional development in consultation with Cabinet members responsible for social development, safety and security, and correctional services must create a policy framework to develop the capacity within government and the non-
governmental sector for the provision of accredited victim support and preparation services.
The Cabinet member must with due consideration of the minimum standards applicable establish and maintain a system of accreditation of service providers and programmes for victim support.
The Director General of Justice and Constitutional Development must in consultation with the Director General of Social Development, National Commissioners of Correctional Services and SAPS establish a national register of accredited programmes.
2. VICTIM ASSISTANCE OFFICERS
In 2002 the SOCA unit started a Victim Assistance Project (VAP) as part of a Criminal Justice Strengthening Project. The Victim Assistance Officers (VAOs) were placed at the Thuthuzela Care Centre(TCCs) as this is also part of the projects by the SOCA unit and the main purpose of which is to eliminate secondary victimisation of victims by the service providers and to make access to the CJS easy and victim-friendly.
The VAO was established mainly to look at the needs of the victim(s) as they go through the criminal justice system and provide the necessary support and information that the victim requires in order to be an effective witness in court and to go through the system without any anxieties.
The responsibilities of the VAOs are as follows :
Establishing early contact with the victims and guide them through the court process
To provide relevant information to the victim
Assess if the victim requires any counselling or emotional support
'To work in co-operation with the prosecutor and prepare the victim for the court process and orientate the victim within the court
Maintain regular communication with other roleplayers involved in the Criminal Justice System
Keep contact with the victim regarding any step of the case i.e. bail etc, or any matter that will affect the victim regarding the accused taking into account issues of confidentiality and the victim's safety
Inform the prosecutor about the victim's concerns.
Discuss with the victim about her safety concerns and if possible devise a safety plan with the victim / refer the victim to the relevant NGO or CBO if need be in order to develop a safety plan
Accompany the victim to trial when required to do so, so as to offer emotional support
Ensure that services are offered in the language that the victim understands
The VAO) must co-ordinate with the prosecutor and the investigative officer a
system whereby the victim is kept notified of the outcome of the case.
The VAOs were placed at the TCCs in Maneneberg-WC (Jooste Hospital), East London-EC (Cecelia Makhiwane Hospital), Soweto-Gauteng (Baragwanath hospital), Libode- EC (Ntlaza Hospital) and TCC in Galeshewe Hospital in Kimberly-NC.
A challenge that faces the project at the moment is the institutionalisation of the VAOs so that they are remunerated as part of the NPA staff members and not dependent on donor funding.
A National Prosecuting Authority national audit was conducted on all Regional and High Court sexual offences cases, finalised or otherwise disposed of during the period 1 January 2002 to 30 November 2003, in respect of: Rape, Attempted Rape, Indecent Assault, and Statutory Offences in terms of Sec. 14 (23/1957)
The main aim of the audit was:
To indicate the national prevalence rate of the mentioned sexual offences;
To determine the average conviction rate of sexual offences; and
To identify emerging trends of these offences.
The national conviction rate for sexual offences in all Regional Courts is 42%
The national conviction rate for sexual offences in the 51 specialized Sexual Offences Courts is 62%
The audit clearly indicates that the specialized Sexual Offences Courts are more effective in attaining results relating to convictions.
As a result of the traditional division of tasks between the role players involved in the management of rape cases, the services provided have been largely fragmented and inconsistent. In an attempt to improve the investigation and prosecution of rape cases as well as provide better services to rape victims, a multidisciplinary centre was established in the Western Cape, the Thuthuzela Care Centre.
The Thuthuzela Care Centre model demonstrates the use of a centralized, multi- disciplinary team comprised of police investigators, medical personnel, social workers, prosecutors and community volunteers. The aims of the project include the facilitation of skilled professional delivery of services to rape victims by police, medical personnel and prosecutors, joint investigation of cases by police and prosecutors, the development of accurate data collection tools, and the building of better cooperation and communication between rape victims and the justice system.
The project aims to demonstrate that a team approach to the investigation of rape cases can improve the treatment of rape survivors. This approach streamlines and accelerates investigations and prosecutions, and provides concrete, reliable information to communities about this serious crime. The project hopes to inspire confidence in the criminal justice system among victims, as well as those structures working on their behalf.
The Thuthuzela Care Centre presently manages sexual offences victims of 14 years and above, from the jurisdictions of three police stations. It is the intention of the project to extend these services to victims of all ages and to more police stations. All cases from the Centre are prosecuted in a specially identified sexual offences court at Wynberg Court, the Thuthuzela Court.
Victims in the age group of 14 years to 18 years is an often a neglected group as, although they are still 'children', they are not seen as requiring the specialized services reserved for younger children. It is the contention of this project that this age group of children is particularly vulnerable due to a number of factors. It is therefore one of the aims of the project to provide specialized services for this group in an attempt to counter some of those factors and to protect this group in a more meaningful manner.
The team managing the project, headed by the Office of the National Director of Public Prosecutions, focuses on the improved investigation of rape cases, the care of rape victims, and the creation of an accurate system to monitor and evaluate data in order to develop integrated strategies. The team works simultaneously on improving the following six components:
(1) Initial reception of victims at the police station and transport to the Centre;
(2) Medical examination, collection and storage of medical forensic evidence;
(3) Police statement taking from complainants;
(4) Better care of and communication with victims;
(5) Joint investigations between police and prosecutors, and
(6) Improved data collection and analysis.
In 2003 the Institute of Criminology (University of Cape Town) conducted research on the Thuthuzela Care Centre at Manenberg, Cape Town, and one of the Sexual Offences Court based at Wynberg, commonly referred to as the Thuthuzela Court.
The brief of the research:
Examine the weaknesses in the processing and investigation of sexual offences cases channeled through the Thuthuzela Care Centre in Manenberg (from the Gugulethu, Khayelitsha and Manenberg police stations), and the subsequent low arrest rate.
'Analyse, where possible, the reasons for the withdrawal of charges in sexual offences cases.
Investigate, where possible, the reasons for the low reporting rate of sexual offences.
Develop recommendations for the NPA to help reduce the identified weaknesses in the criminal justice process in respect of the investigation and management of
sexual offences cases.
In the light of the wide range of activities, protocols, personnel and structures associated with the Thuthuzela Care Centre [TCC], the research went beyond the original question of low investigation and arrest rates in sexual offence cases. In addition to analysing the number of reported cases at each station (and at the TCC) and the methods in which these cases are processed through and managed by the TCC project, the research also undertook to examine the following:
The profile of rape victims reporting at Thuthuzela.
The structure of Thuthuzela, with a specific emphasis on accountability structures and 'ownership' of the project.
Police performance in the investigation of rape cases.
The case flow and the management of the case flow of TCC cases (from police and prosecutorial perspectives).
Opinions of TCC personnel about 'prosecutor-guided' investigations.
The number of and reasons for the withdrawal of rape cases going through the TCC and case disposal.
An assessment of the Thuthuzela database at the Wynberg Regional Court.
The results of the research:
The National Average of convictions in Sexual Offences Courts in 2003 is 62%.
Wynberg Sexual Offences Courts (4 courts) combined have a conviction rate in 2003 of 73%.
The conviction rate in the Thuthuzela 'J' Court for 2003 is 81%
In the United Kingdom only 5-6% of reported rape result in a conviction
In South Africa - 8-9% of reported rape cases result in a conviction of rape
Based on cases tracked by the researchers, in the Thuthuzela Project, the report-
conviction rate is 17.5%
The researchers commended the Thuthuzela Project for a number of initiatives that have
contributed to its success:
The Project Oversight Committee, which is a committee made up of representatives of all role players who are responsible for the ongoing management of the Project
The development of a computerized data-base which is responsible for the collection of all information pertaining to a case; this data-base enables the tracking of cases, and the identification at any point of at what stage the case is regarding investigation and prosecution
The interdepartmental development and implementation of protocols for all role players
The implementation of 'prosecutor- guided' investigations
THE EMANCIPATION OF THE MAINTENANCE SYSTEM WITHIN THE TEN(1(
YEARS OF DEMOCRACY IN SOUTH AFRICA
Maintenance is all about the duty of support towards children by their natural parents or those obligated by law to do so and this system rested with the Department of Justice and Constitutional Development and NPA for purposes of management.
HISTORICAL BACKGROUND OF THE MANTENANCE SYSTEM -PRE 1994
Before the dawn of democracy in South Africa, the maintenance system was governed by the maintenance Act 23 of 1963. There were administrative and procedural difficulties that were identified in the maintenance system under 1963 maintenance Act for example:
There was no proper co-ordination of the system
Lack of sense of urgency in dealing with maintenance matters (in other words maintenance matters were often given; least priority in courts as it was regarded as an orphan of justice system.
Court process e.g. subpoena/summons were not properly served as it was not given the weight it deserves by the law enforced agencies including sheriffs.
The applicant herself to the respondent will serve at times subpoena/summons without prior arrangement with the law enforcement agencies,
No investigation and tracing of defaulters.
No defaulters judgment granted even if the service of the court process was proper instead a warrant of arrest will be issued and it will take a long time to executed
No proper statistics information were kept on maintenance.
This contributed to the malfunctioning of the maintenance system in terms of the more vulnerable group of the society which in many of them loosing confident in the criminal justice system and abandoning a good cause for beneficiaries of the system (children). The end result of it all was that the efficiency and effectiveness of the system promoted the concept of child neglect as a form of social decay.
THE MAINTENANCE SYSTEM AFTER 1994
After the 1994 democratic set u in the country there was a turning point in terms of taking review process of the legal system in South Africa and the review process of the maintenance system resulted in the enactment of the new maintenance Act no 99 ( 1998. This maintenance Act came into operation on 26 November 1999 except for the provisions dealing with the appointment of maintenance investigators. The act was hailed as a breakthrough in the development of a maintenance system in South Africa as it introduced a number of new initiatives in terms of handling maintenance matters.
SPECIALIST MAINTENANCE PROSECUTORS
The implementation of the new maintenance act 99 of 1998 has seen the introduction of the new class of specialist maintenance prosecutors by SOCA Unit of the NPA response to the provisions of section 4 of maintenance Act.
SOCA Unit of NPA has appointed SO specialist maintenance prosecutors in order to manage capacity towards service delivery in the maintenance system. These maintenance prosecutors comprises of 10 senior maintenance prosecutors and 70 junior maintenance prosecutors. The senior maintenance prosecutors are responsible for provincial co-ordination and monitoring of the system in consultation with all the stakeholders (role-players) and management and supervision of the activities of junior maintenance prosecutors. They also assist the DPP's office in dealing with maintenance appeals and representations. Their duties have healed the ill co-ordination in the
The junior maintenance prosecutors have been appointed at a particular magisterial district and this allows them to serve other nearest magistrates' courts within jurisdiction of their magisterial district. The appointment of junior maintenance
prosecutors has yielded the following positive results:
They have successfully created an environment in the courts that actually places the maintenance matters high in the criminal justice agenda thereby restoring confidence in the system.
They have ensured that there is a smooth running of different job portfolio's in the maintenance section, thereby creating accountability in the system. (Job description)
They have set standards as to what the credentials and qualifications of the maintenance officers should be.
They have correctly and drastically eradicated the volunteerism and rotation system that was running the maintenance system in various magisterial districts, which has brought inconsistencies in the application of uniform standards in the system for a period of time.
They are presently implementing the proper filing system and recording of documents, which is beginning to show greater charge in terms of loss of maintenance file. They are introducing different registers that aim at channeling the movement of maintenance file from one court official to the other, that will ensure accountability in terms of loss of maintenance files or any document in the file.
They are also in a process of implementing a code of ethics in maintenance, which was not observed and led to poor performance and administration in the system.
The DOJCD has commissioned a work-study that is looking at the creation of the post class of the maintenance officers which will deal with the pre-requites and qualification for suitable appointment as maintenance officers. The work is in progress and not finalized. Presently the DOJCD in conjunction with SOCA Unit has embarked on a project of appointing the so-called maintenance officers in maintenance courts where there is a need. The appointments are contractual for a specific period in the financial year and guided or benchmarked against the credentials and qualifications of junior maintenance prosecutors of the SOCA Unit. Further more they are trained and supervised by the senior maintenance prosecutors of the SOCA Unit, in their respective
It was mentioned earlier on this report that the provisions relating to maintenance
investigators were not in operation at the time when the act came into operation.
The situation is changing. At the beginning of the year 2003 measures were taken to test the possible implementation of the provisions of section 5 dealing with maintenance investigators. The DOJCD in collaboration with SOCA unit introduced the maintenance assistants who performed the same function of the maintenance investigator, while waiting the finalisation of regulations and policies for the implementation of section 5 of maintenance act 99 of 1998.
This process has seen the appointment on a contract basis of 61 maintenance assistants with effect from 01S' April 2003 to 30th September 2003. The appointments were extended from 01st October 2003 to 31st March 2004. The number was increased to 72 maintenance assistants (investigators) and their contract was further extended from 9th April 2004. When the regulations and polices have been finalised these positions are expected to be permanent positions of maintenance investigators by the end of 2004/5 financial year. The appointment of maintenance investigators has brought about a good service delivery model when combined with maintenance prosecutors and maintenance officer. Their collaboration has brought relief and improvement in the turn around time of maintenance matters and in respect of a smooth court process.
Before the appointment of maintenance prosecutors and maintenance investigators, maintenance matters use to take a year or even more before an order can be granted, due to outstanding information or investigation. After the appointment of this working class, the turn around time has been drastically reduced to 6(six) month the most. The applicants were forced to the court processes and now are the responsibility of the maintenance investigators and sheriffs to serve the court process. This has also seen lots of default.
CHALLENGES STILL FACING THE SYSTEM
The following challenges are facing and affecting the smooth running of the maintenance
1. There are no regulations dealing with the civil enforcement of maintenance orders in terms of the Maintenance Act except for the application of the provision of the Magistrates Court Act. The committee led by the secondary legislation directorate within DOJCD has already been constituted and their work is in progress in this regard.
2. HUMAN RESOURCES
South Africa is in principle currently having 80 specialist maintenance prosecutors and 140 maintenance investigators with 510 maintenance court which ought to be maintenance courts. There is a need to prioritise the appointment of more maintenance prosecutors and activate the provisions regarding maintenance investigators.
3. STREAMLINING THE HUMAN RESOURCE
The appointment of maintenance court personnel is carried out presently by two division of justice Department i.e. SOCA Unit from NPA and court services and this causes two different line management functions. In order to ensure systemic accountability there should be streamlining in terms of the appointment of maintenance court personnel, from maintenance processing clerk until cashier in the cash hall.
4. STREAMLINING THE REPORTING AND LINE MANAGEMENT FUNCTION.
Court personnel in the maintenance section of the courts are reporting to different line managers. Maintenance prosecutors and some maintenance officers are reporting to senior maintenance prosecutors, other maintenance officers are reporting to either control of admin and /or office manager and some to chief magistrate. This obviously creates problems in terms of accountability.
The SOCA Unit took initiatives of engaging DOJCD in this regard and consensus were reached that maintenance investigators should report to maintenance prosecutors and ultimately to senior maintenance prosecutors and further that the maintenance officers, should follow suit. The problem still exists with regard to the maintenance admin section. There should be streamlining of reporting andline management function to a single component of justice.
4. PROBLEMS RELATING TO PAYMENT FROM CASH HALL
There are problems in relation to the payment of monies that are sent to court through emolument attachment orders as, very often employers are not sending the money with the remittance advice which affects the tracing of the beneficiaries. In such situations the monies remain unclassified which then causes delay in terms of payment and reconciliation's of the accounts. This needs to be corrected through uniform regulation and guidelines to employers.
1. A 10 Year Review of the Legislation on Domestic Violence: The Positive & Negative Aspects
Long before 1994, the scourge of violence and abuse was already a growing phenomenon in many family structures that was, unfortunately, significant unreported because of the socio-economic, socio-cultural and interpersonal influences that kept many victims hopelessly bound to its harsh realities. The culture of silence and public ignorance on the concept could also be considered as additional primary factors that heavily suppressed the flow of these cases into the justice system.
In December 1993, South Africa saw the emergence of the very first specific legislative intervention in family violence. The Prevention of Family Violence Act (No. 33 of 1993) was enacted to provide protection to spouses and children subjected to violence and abuse within the conventional family. However, no significant decrease of the incidence was recorded from the implementation of this Act due to its numerous flaws, which included the following:
It applied ONLY to heterosexual or 'straight' couple either married to each other according to any law or custom or living together as husband and wife, and also to the couple's children or children living with the couple. This limitation was not only oblivious of the extended definition of a 'family structure' that mostly prevails in African families, but was also totally excluding the same sex relationships, which were part of the South African society from time immemorial.
It did not provide the definition of 'family violence'.
It focussed on two forms of abuse, i.e. physical abuse (s2 (a)) and sexual abuse/ marital rape (s5).
The procedure of obtaining an Interdict was not explicitly stated, and no special State administrative and financial assistance was afforded to destitute applicants. This made the Act inaccessible to the largest sector of the SA society, which constituted the previously disadvantaged, illiterate, unemployed and destitute communities.
The penalty for the contravention of the Interdict was a fine or imprisonment NOT exceeding 12 months, and therefore relatively minimal to the far-
reaching effects of family violence.
Post 1994: The Domestic Violence Act 1 16 of 1998
1. General Positive Aspects / Strengths
From a positive perspective, the Domestic Violence Act (DVA), 1998 is largely viewed as an international competitive piece of legislation for the following reasons:
Globally Aligned: It came into being after SA had demonstrated in the international community its commitment to the elimination of violence against women by signing and ratifying 1981- UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in 1996.
It provides a wide definition of 'domestic violence', which falls within the parameters of the definition of 'violence against women'- as outlined in the 1993 Declaration on the Elimination of Violence Against Women.
It provides equal protection to ALL persons, irrespective of sex, gender, colour, age, religion, language, etc. For this reason, it is aligned to the 1948 UN Universal Declaration of Human Rights, which states that 'Everyone is entitled to all the rights & freedoms, ..w/o distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status'
Cross-examination: The DVA protects the complainant from being cross- examined directly by an undefended respondent during the hearing of the application for a protection order-s11 (3).
Faster & Costless Service: Service may be effected by the clerk of the court- s13 (1). This provision makes service faster and costless when the parties are in court.
Free Service For Destitute: The State is required to provide financial assistance to the destitute complainants to cover the service costs.
Lifelong Protection: The Protection Order remains valid for life, unless cancelled or any of the parties dies.
Protection of Identity: The DVA protects the identity of the parties to the proceedings- s11 (2)(a).
Prohibition of Unauthorized Publication: It prohibits unauthorised publication of the proceedings or any part thereof- s 11 (2)(b).
Positive Aspects/ Strengths from the Criminal Perspective
The 'no - withdrawal' restriction in respect of sl7 (a) offences ensure that perpetrators of domestic violence do not escape prosecution-sl8 (1).
Countrywide Jurisdiction: The protection order is enforceable nationwide-s12 (3).
Support Persons: The complainant may bring to the criminal court not more than 3 persons for the purpose of providing him/her with support, especially when testifying (sll (1) (f)).
Disclosure of Identity of any parties is a crime in terms of the DVA (s 17(b)). This provision encourages witnesses to testify and co-operate with the State.
Unauthorized Publication of proceedings is a punishable offence in terms of s 17(a). In the same way as the prohibition of disclosure of identity of parties, this provision is expected to increase cooperation with the criminal justice system,
Negative Aspects, Weaknesses & Challenges
Limited Application of the No-Withdrawal Restriction: The restriction on the withdrawal of charges only applies to an offence of Violation of Protection Order- s 18(1). This means that nothing prevents a prosecutor from withdrawing other criminal charges arising from domestic violence incidents, which have been committed before the protection order is issued. For instance, a prosecutor does not require authorization for the withdrawal of a charge of Attempted Murder against an accused, who is in a domestic relationship with the complainant, unless that charge also amounts to a violation of an existing protection order.
Inadequate Infrastructure: There are inadequate structural resources to properly implement the DVA, e.g. shelters as required by s2 (a). In many courts, there is still a significant shortage of clerks of the court and civil magistrates to provide services during and after court hours/ outside court days.
No legal obligation on the police to lay criminal charges on behalf of the victim in every single report of domestic violence, as is the case in Canada. As a result, if the victim refuses to take a criminal action against her abuser due to fear, there is nothing in our taw that permits our police or any person with a material interest (as is the case in applications for protection order) to do so on her behalf. This is a factor that contributes to low reporting rate in these cases.
Not All Reported Cases are Accepted: The DVA does not explicitly impose a duty on the police to always open a docket in every incident of domestic violence -s3. Due to lack of training of uniform police officers, many victims are still turned away when they report domestic violence cases.
Domestic Violence is NOT a specific crime: Domestic violence may fall under numerous criminal offences such as assault with intent to do grievous bodily harm, crimen injuria, rape, murder, etc. There is no specific offence of 'domestic violence' per se. This means that if the domestic relationship of the parties is not disclosed in the docket, there is a likelihood of NOT classifying such case as a domestic violence case. It is also for this reason that it has been a
struggle for the prosecution to collect the accurate statistics of these cases.
Uncoordinated Services: Since the operation of the Domestic Violence Act, 1998, the domestic violence sector has experienced more reciprocal interdependencies that are critical to the operational success of the value chain.
The new roles, obligations and responsibilities that came with this Act have since placed an urgent demand for a paradigm shift towards the multi-disciplinary management of the domestic violence cases. The practical reality of these interdependencies continues to impact heavily on the success of the prosecution services. If the evidence collection process is not backed up by specialized skill,
knowledge and sensitivity, the probabilities of realizing successful prosecution become too remote. The same poor impact is likely to manifest if the synergies and relational ties among the role-players are disjointed, weak and ineffective.
Inadequate Specific-Disciplinary Training: As against specific-disciplinary training, the multi-disciplinary training model in domestic violence is a 'must' because of the complex needs of victims. This innovative approach to training continues to produce remarkable successes in leading countries like USA and Canada, and is now increasingly recognized as the international best practice model in the management of domestic violence cases. It is known for having recorded progressive success rates in building up and enhancing effective and efficient co-ordination, cross- communication, and well-informed referral system and victim-support service
delivery among all role-players. It is the key driving force to the successful prosecution of the domestic violence cases.
Lack of Specialization in the management of these cases continues to subject many victims to secondary victimization. From the complex nature and dynamics involved in these cases, it seems we will not beat secondary victimization, unless there are specialist prosecutors, magistrates and other service providers operating in specialized courts and other specialized facilities.
Counter-Applications Leading to Counter-Criminal Complaints: The Act does not stipulate a procedure of handling counter-applications for the protection order. As a result, prosecution is often confronted with a confusion of parties who have laid criminal charges against each other- arising from the same incident.
The lack of guidelines for court to determine when a complainant can and cannot afford to pay for service fees, e.g. the formula for the means test is not prescribed by the DVA and its Regulations- s 13(2).
Lack of Specific Rehabilitation Programme has led to the gradual increase of recidivism in domestic violence.
The Need for More Alternative Sentences: In some instances the imprisonment sentence serves as an indirect punishment to the dependents of the accused, who are, in most cases, the primary and the secondary victims of domestic violence.
Initiatives Taken and Accomplishments
1. Initiation of the integrated Domestic Violence Training Programme (IDVTP)
The Integrated Training Program is a four and a half day skills development and capacity building programme that is basically founded on the notion that 'effective integration starts in the classroom'. The SOCA unit initiated the development of this programme in 2000, acting in partnership with the Law Courts Education Society of British Columbia and the SA National Integrated Domestic Violence Committee'. It is a global-aligned training model that seeks to capacitate all the intersectoral stakeholders in order to establish sensitivity, accuracy, uniformity, integrated support, coordination, efficiency and effectiveness in the implementation of the Domestic Violence Act, 1998. Its major focus is on the promotion of the multi-disciplinary approach in the management of domestic violence cases. For the first time in the history of this country, all service providers within the domestic violence sector will be trained together under one roof in order to work effectively together. However, it is a not only designed to build and improve the capacity of those who directly get into contact with the victims, but also to develop properly qualified trainers in this sector, especially in the rural and disadvantaged areas. What is more exciting about this program is that it is currently in the process of being registered as the SAQA Accredited Skills Development.
Learning Package and Training Topics
The Learning Material is a brilliant package of soft (PC CD-Rom) and hard copies of:
Participant's Manual &. Resource Reference
Trainer's Manual & Visual Aids
Each Manual is categorized into the following five (5) Modules and Topics: -
Module 1: Social Context in Domestic Violence
Module 2: The Domestic Violence Act (No. 116 of 1998)
Module 3: Roles and Responsibilities of All Role-Players in the justice System
Module 4: Support and Safety Planning for Victims/ Survivors
Module 5: Interviewing Skills
The trainer's Visual Aids include:
Hard and soft overheads
VHS cassette containing four training footages.
As the first cycle of training is the Train-the-trainee programme, the participants will be provided with a training package containing both the Participants' and the Trainers' Manuals.
2. MoU For the Multi-Disciplinary Training
The SOCA unit is currently in a process of developing MoU with all the participating stakeholders in this programme, which include the Dept of justice and Constitutional Development, Dept of Safety and Security, Independent Complaints Directorate, Dept of Correctional Services, Dept of Social Development, Dept of Health, Dept of Education, and the SA leading NGO's in the domestic violence sector, which are the National Network on Violence Against Women, Pelo-Tshwaana Consultancy, Centre for the Study of Violence and Reconciliation, Men For Change, Themba Lesizwe Network, Tshwaranang, and Inter-Trauma Nexus.
This MoU is an agreement of collaboration between the Parties regarding the development and implementation of all multi-disciplinary training programmes in SA, particularly the IDVTP. It is intended to set out clearly the roles and responsibilities of the Parties in the implementation process. Most importantly, it will provide for a more structured and constructive engagement between the Parties to ensure the effective implementation of the IDVTP.
In the Final Draft MoU, the Parties have agreed that for the first 12 months of implementation, the SOCA unit, as the lead organization in the IDVTP, must set up and fund the Project Office, and also provide funding for the entire trainers' costs, as well as the trainees' conference package and accommodation. The Coordinating organization will, thereafter, run the programme with the joint contributions of resources and services from all Parties. The Signature Ceremony will be held during August- September 2004.
2. Implementation of the Integrated Domestic Violence Training Programme
Note : Graph not included
4. Amendment of the Policy Directives
The SOCA unit is in the process of amending the Policy Directives on Domestic Violence to extend the application of the 'no-withdrawal' statutory restriction to serious criminal offences that are domestic violence-related.
5. Research on Intimate Femicide: SOCA UNIT initiative
6. Establishment of Domestic Violence Management Sites
The SOCA unit is planning to introduce the Quadruple Service Model for the new integrated management of domestic violence cases.
Court Services: Specialist prosecutors, magistrates and domestic violence officers (CoC) dealing with criminal and civil matters of domestic violence.
Empowerment Services For Witnesses: This division wilt be manned by trained Victim Assistance Officers to conduct
(i) Witness Court Preparation Programme,
(ii) Assist victims/ survivors with Safety Planning, and
(iii) conduct Public Awareness Programmes within the sites.
Victim Support Services: In this division, trained service providers drawn from SAPS, Dept of Social Development, Dept of Health, etc will provide the respective victim-support services.
Conflict Resolution Services: This division will be run with the assistance of NICRO and trained Counsellors/ Social Workers/ Facilitators or Trainers. Its services and programmes will include:
Group work based, Educational & Psychologically enabling therapeutic programme for perpetrators;
Support Services to Partners of Program participants;
Training and capacity building for perpetrators.
THE LAW REFORM PROCESSES OF THE SOUTH AFRICAN LAW COMMISSION
The object of the South African Law Reform Commission is to conduct research with reference to all branches of the law. To this end the Commission studies and investigates all branches of the law in order to make recommendations for the development, improvement, modernization and reform of the law.
This in turn entails -
Repeal of obsolete or unnecessary provisions
Removal of anomalies
Bringing about of uniformity in the law
Consolidation or codification of any branch of the law
Steps aimed at making the common law more readily available.
The following law reform investigations which are, inter alia, aimed at ameliorating the position of women in South Africa have been conducted or are currently being conducted under the auspices of the South African Law Reform Commission since 1994. Investigations relating to children are included for the reason that the primary care-givers of children are women. As an example, regarding maintenance matters – women disproportionately carry the burden of non-payment of maintenance and they interact with the legal system on behalf of their children. Wherever possible, progress regarding the investigations has been included.
PUBLICATIONS COMPLETED BY THE SOUTH AFRICAN LAW REFORM COMMISSION FROM 1994 TO 2004
The division of pension benefits on divorce
Natural fathers of children born out of wedlock
Natural fathers of children born out of wedlock Act 1997 (Act No. 86 of 1997)
The legal consequences of sexual realignment and related matters
the Alteration of Sex Description and Sex Status Bill and passed it with amendments on 17 September 2003. The Select Committee on Social Services of the National Council of Provinces approved the Bill in October 2003. The President assented to the Alteration of Sex Description and Sex Status Act, Act No 49 of 2003 on 9 March 2004. The Act was published in the Government
Gazette on 15 March 2004.
Access to minor children by interested persons
The recommendations will be incorporated in the Children's Bill (Project 110).
Maintenance Act 1998 (Act No. 99 of 1998)
Customary law: Conflicts of law
A report on conflicts of law was submitted to the Minister in September 1999. He Application of Customary Law Bill will be submitted to Parliament when it is ready for introduction with a view to finalisation thereof when circumstances permit.
Sharing of pension benefits
The Sharing of Pension Benefits Bill will be submitted to Parliament when it is ready for introduction with a view to the finalisation thereof when circumstances permit.
The Review of the Marriage Act 25 of 1961
A report on the review of the Marriage Act was submitted to the Minster of Justice and Constitutional Development in June 2001, who subsequently referred it to the Minister of Home Affairs.
The Publication of Divorce Proceedings: Section 12 of the Divorce Act 70 of 1979
"A report on the publication of divorce proceedings: section 12 of the Divorce Act 70 of 1979 was submitted to the Minister in August 2002. The Publication of Divorce Proceedings Bill will be submitted to Parliament when it is ready for introduction with a view to the finalisation thereof when circumstances permit.
A report on sexual offences covering both the substantive and procedural law was submitted to the Minister on 21 January 2003. The Criminal Law (Sexual Offences) Amendment Bill is receiving the attention of the Portfolio Committee.
Review of the Child Care Act, 1983
A report on the review of the Child Care Act was submitted to the Minister on 21 January 2003, who subsequently referred it to the Minister of Social Development. The Children's Bill is receiving the attention of the Portfolio Committee on Social Development.
Customary law: Traditional courts and the judicial function of traditional leaders
A report on traditional courts and the judicial function of traditional leaders was submitted to the Minister on 21 January 2003. The Traditional Courts Bill will be submitted to Parliament when it is ready for introduction with a view to finalisation thereof when circumstances permit.
Islamic marriages and related matters
A draft report was approved by the Commission on 28 June 2003 and submitted to the Minister on 22 July 2003. The Islamic Marriages Bill will be submitted to Parliament when it is ready for introduction with a view to the finalisation thereof when circumstances permit.
Customary law of succession
A report by an Ad Hoc Committee of Parliament was finalised on 11 February 1999 and Tabled in Parliament on 17 March 1999. Legislation has been prepared and it will form a Chapter in the Children's Bill.
The legal consequences of sexual realignment and related matters
Domestic Violence Act 1998 (Act No. 1 16 of 1998)
Customary law: Conflicts of law
Sharing of pension benefits
Traditional courts and the judicial function of traditional leaders
Sexual offences: The substantive law
Review of the Marriage Act
Customary law: Succession
A draft report on customary law of succession was approved by the Commission on 6 March 2004.
Customary law: Administration of estates
The Administration of Estates Amendment Act 47 of 2002 was passed. The researcher is preparing a document on the administration of estates.
Publication of divorce proceedings: Section 12 of the Divorce Act 70 of 1979
Islamic marriages and related matters
Sexual offences: Process and procedure
Review of the Child Care Act
This discussion paper includes proposals for possible law reform to recognise and regulate various forms of domestic partnerships. The proposals are aimed at harmonising family law with the provisions of the Bill of Rights and the constitutional values of equality and dignity. Possible amendments to the Marriage Act of 1961 and the promulgation of legislation to deal specifically with registered and unregistered partnerships are proposed.
Conflict of personal laws
Review of the maintenance system
Sexual offences against children
Succession in customary law
Review of the Child Care Act
Islamic marriages and related matters
Sexual offences: Adult prostitution
An investigation into Stalking has been introduced on the programme of the Commission as of January 2003. This investigation flows from the investigation into Domestic Violence and the investigation into Sexual Offences. An issue Paper was published for comment in August 2003 and a discussion paper is being developed.
Trafficking in persons
An issue paper was published for general information and comment on 23 January 2004. The closing date for comment was 31 March 2004. The submissions on the issue paper are being collated, subject to the researcher's involvement in the Children's Bill process.
Review of aspects of the law of divorce
A questionnaire was distributed publicly and the closing date was extended to 31 May 2003. A draft discussion paper will be finalised in October 2004.
Review of aspects of matrimonial property law
Research will commence when the discussion paper on the review of aspects of the law of divorce has been finalised,
This is the SOCA Unit's analysis of the law reform and its ability to support protect and empower women together with an analysis of the gaps identified for urgent attention.
I trust that this analysis of progress made in relation to women and law reform will be adequate. Please do not hesitate to request further information regarding this topic
Special Director of Public Prosecutions
Head of the Sexual offences and Community Affairs Unit