womensnet logo Draft Report on Violence Hearings
(Ad Hoc Joint Committee on Improvement of Quality of Life and Status of Women)
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Date: 26 May 1998
To: All Committee Members
From: Pregs Govender

Please note that this is a draft report. Please read before the meeting and bring suggested changes with you.

INTRODUCTION

The Portfolio Committee on Justice and the Ad Hoc Joint Committee on Improvement of Quality of Life and Status of Women (referred to as the Committee in this report) held hearings during 1997 and 1998 on Violence against Women. At the 1998 hearings, organisations were also invited to address the committees on other aspects relating to gender and justice. In this regard the Justice Department presented an overview of all its gender initiatives, which will not be detailed in this report.

A total of 32 written submissions were made, some of which were also presented orally. Copies of all the submissions are available from the Justice committee clerk. The list of submissions received appears at the end of the Report.

In view of the large number of submissions received the section on submissions from organisations is presented thematically and does not include a summary of each and every submission. The report also focuses on aspects of the submission which fall within the jurisdiction of the department of Justice. Aspects covered are Domestic Violence, the Legal System and Spousal Killings, Sexual Offences and Sexual Offence Pilot Courts.

A. Department of Justice (1997 and 1998)

1997

The department's 1997 report includes sections on Domestic Violence, the Prevention of Violence against Women Campaign, developing a monitoring system for the Guidelines on Sexual Offences developed by a national task team, the need for legisaltion on sexual offences against women, strategies for victim empowerment, and activities of SADC, the Southern African Development Community.

The department facilitated discussions on the SALC project on reforming the Prevention of Family Violence Act of 1993 and prepared a submission to the SALC. A project committee of individuals working in the field was to be established within the department to carry through the legislative process.

There are technical and administrative problems which frustrate the effective operation of the current Act such as the inability of the SAPS to arrest a person in breach of the interdict if the woman does not physically have a copy of the interdict and suspensive warrant in her possession.

The department suggested investigating practical solutions to this problem directly with the SAPS, such as serving a copy of each interdict on the police station closest to the applicant. A computer database linking all magistrate's courts and police stations would be the best way of ensuring an effective police response. A task team would be established by the department to implement immediate and practical strategies under the current Act.

Domestic Violence is an aspect of family law and a departmental task team was established to set up pilot "family court "structures which would address family issues in a holistic and sensitive way with experienced personnel.

A workshop would be held by the department to assess the campaign of No violence Against Women, which included the Open Courts Day. A report on the open day revealed issues of concern for women such as sentencing and bail in cases involving violence against women, the inefficiency of the current maintenance system, the need for improved facilities for women at courts, including separate waiting rooms, more community involvement in the justice system, gender sensitivity training for personnel, the need to establish community justice forums and the need for more women to be appointed as prosecutors and judicial officers.

Standard guidelines for responding to survivors of sexual violence were finalised by a task team and included in a manual. The guidelines were formulated as practical steps to assist in the daily work of people dealing with rape and sexual assault survivors.

The department advised that a monitoring system for the implementation of the guidelines must be developed. This could be done by legislation or including the guidelines as part of the professional Codes of Conduct of the relevant role-players.

There is a need for the substantive law of sexual offences to be modernised and improved. There are a number of shortcomings in the law including the definition of rape itself and rules of evidence which work against the complainant. These include the cautionary rule as well as the complainant's previous sexual history.

The department stated that it could consult outside consultants to develop a reform package or the SALC could undertake an investigation on Sexual Offences against women.

The special Sexual Offence Courts set up in Wynberg were to be evaluated by the parties involved with the project. There is debate within the department about whether there is a need for specialised courts or whether it can be as effective to train particular prosecutors and magistrate's within the ordinary system. Specialist courts would not be sustainable in the rural areas.

The department recognises that real change in the experiences of those who enter the Justice system will only come about when they are treated differently by the personnel who are involved in the case. All the relevant groups need training to sensitise them to gender issues. The department appointed a lawyer with extensive experience in Human rights and the NGO sector to head the Justice College. The gender awareness training was to be reintroduced. Magistrate's also receive training in the technical and functional aspects of the Prevention of Family Violence Act.

The National Crime Prevention Strategy (NCPS) is a mechanism which promotes an integrated, co-ordinated and holistic approach by all relevant government departments and NGO's to deal with crime. Violence against women and children is a priority crime. Victim empowerment is a key strategy in ensuring confidence in the Criminal Justice system. The SALC has produced an issue paper on restorative justice which includes a scheme for compensating victims of crime and a victim impact statement process.

A victim empowerment committee has been established with representatives of line departments. Its main function is to ensure that there is an integrated approach to dealing with victims of crime and to prevent secondary victimisation experienced by victims in the criminal justice system.

1998

The department's 1998 report includes aspects of the campaign on the Prevention of Violence against Women such as the Open Court day in 1997, the national policy guidelines on sexual offences, victim empowerment, the Canadian Study Tour and the SADC Conference. Only aspects which are not covered in the 1997 report are highlighted below.

Arising out of the 1997 report from the department, the Committee needs to establish from the department whether method of enforcing the guidelines for survivors of sexual offences have been further investigated and implemented.

In the 1998 submission, the department advised that it will produce a comprehensive violence against women policy before the end of 1998. The policy framework will incorporate the principles enunciated in the United Nations Policy Framework on Domestic Violence.

A legal forum, composed of NGO's and departmental personnel, is envisaged by the department. The forum will periodically consult on issues of common concern including victim empowerment and gender equality. Regional heads in the provinces are also participating in victim empowerment initiatives which are led by the department of Welfare.

The chair of the Committee will address a letter to the Department of Welfare requesting a report on aspects of the victim empowerment initiatives and the budgetary allocations that have been made to give effect to the programmes.

The department also reported back on a Canadian study tour on dealing with violence against women. Lessons drawn from the tour include the following: an inter-sectoral approach in dealing with violence against women is crucial, economic empowerment of women is essential, counselling is needed for victims and rehabilitation for offenders, shelters and safe houses must be established for victims.

A report on the study tour will be presented to the NCPS inter ministerial meeting by the department and the appointment of an intersectoral task team is envisaged to facilitate the implementation of the recommendations.

The SADC Conference on Prevention of Violence Against Women took place in March 1998. A regional declaration on violence against women as well as an accountability framework were developed. As a follow up to the conference the department will convene a national summit on violence against women on 25 November 1998, the International day of no violence against women.

B. Independent Complaints Directorate Report: Investigation and Prosecution of Sexual Offences

This report arose out of the rape of Nomboniso Gasa on Robben Island and is based on an investigation of conduct of members of the SAPS who investigated the case. The report goes beyond the conduct of the officials involved with the case. Some of the recommendations that go beyond the particular incident are detailed.

The SAPS should embark on a extensive training programme. The training should be aimed at improving the member's understanding of the nature and consequences of violence against women and of the context within which such violence occurs and at enhancing their capacity to respond appropriately to such complaints. Suitably trained members should be attached to each police station. Complainants should be offered a choice of a male or female member to assist in the initial stages of the investigation. Each police station should have a list of organisations that deal with violence against women. The SAPS should review its mechanisms regarding release of information to the media so as not to discriminate against women, not to invade their privacy.

The chair of the Committee will forward a letter to the ICD enquiring as to the status of this report and whether its recommendations have been implemented.

C. National Crime Prevention Strategy Inter-Ministerial Committee: Reports from the Various Departments

This report was submitted in March 1997 and details the departmental reports of Justice, the SAPS , Correctional Services and Welfare in relation to reprioritizing the eradication of violence against women.

The reports are a response to a request for details in respect of programmes which target violence against women and legislative, institutional and budgetary changes that have been effected to ensure the eradication of violence against women. The details are not set out in this report as the government report was tabled in Parliament on 8 May 1997.

The Committee will analyse this report when scrutinising budget reprioritization as part of its analysis of the MTEF budget tabled in March 1998. The chair of the Committee has in this regard addressed letters to the departments of Justice, Welfare, Safety and Security and the SAPS requesting updated reports on programmes and budgets to combat violence against women. The responses from the departments will be tabled before parliament.

D. Submissions Received from Organisations

  1. Domestic Violence: the SALC Project

    The project of the South African Law Commission (SALC) arose out of criticism of the Prevention of Family Violence Act 133 of 1993 and aims to introduce a Domestic Violence Bill which will replace the 1993 Act in its entirety. The SALC developed an issue paper which was circulated for comment. The comments received were incorporated into a discussion paper which was also released for comment and submitted to the Committees at the hearings.

    It is anticipated that a final report, together with a draft bill will be submitted to the Minister of Justice during 1998. The bulk of submissions received commented on the SALC discussion document and draft bill. The various organisations also forwarded their submissions to the SALC and some of the proposals will be included in the SALC final report. Once the SALC draft bill is introduced into parliament, these submissions will again be considered.

    Aspects covered were for example the definitions of domestic violence, which type of relationships should fall under the Act, the scope of the interdicts that the court can grant, the type of acts that should be considered violent in terms of the Act, the nature of the proceedings should the Respondent violate the interdict and the role of the SAPS in service of the interdicts.

    One of the submissions suggested further legislation in respect of domestic violence in addition to the SALC bill. A draft bill was submitted by the Community Law Centre (UWC), the ANC Women's Caucus and Rape Crisis jointly, providing for the creation of new statutory criminal domestic violence offences. Currently the only domestic violence offences in South Africa are assault, rape and indecent assault. The bill suggests introducing offences of intimidation, harassment and stalking.

  2. The Legal System and Spousal Killings

    A submission from the Centre for Violence and Reconciliation details the phenomenon of intimate femicide as the most extreme form of domestic violence. The term is used to refer to the killing of women by intimate male partners.

    The submission focuses on four case studies, and recommendations are made in respect of two of the case studies. Sandy Ramontoedi, who killed his wife in the court room, was sentenced to three years correctional supervision to be served over week-ends in instalments of twenty hours. The submission calls for the review of both the finding and the sentence handed down.

    Meisie Kgomo was beaten regularly by her husband and was accused of encouraging her brother to kill her husband. She received the death penalty in 1993 and will now serve a life sentence. The submission calls for the resentencing of Meisie Kgomo.

    Various other recommendations are made such as the setting up of a task team to consider the question of gender bias in sentencing, introducing legislation permitting the introduction of similar fact evidence or evidence of a history of domestic violence, abandoning the complete defence of non-pathological criminal incapacity, training of members of the judiciary and early release for women serving sentences for killing their abusers.

  3. Sexual Offences

    There are a number of legislative interventions needed in relation to sexual offences such as the amendment of the substantive definition of rape, the laws of evidence and criminal procedure as well as statutory complaints mechanisms, training of judicial officers, bail and sentencing.

    The department of Justice indicated that the SALC could broaden its project on Sexual Offences against Children to include women, alternatively experts consultants could be drawn in to draft legislation.

    One of the submissions, from Rape Crisis and the Women and Human Rights project at the Community Law Centre, introduced to the committees a comprehensive Namibian draft bill on Sexual assault. The bill covers, amongst others the following aspects:

    • a redefinition of the offence of rape
    • minimum sentences for a person convicted of rape
    • orders for payment of compensation to the complainant
    • mandatory commencement of rape trials within three months of date of arrest of the accused
    • disallowing a negative inference based solely on the length of the delay between the commission of the act and the laying of the complaint
    • the right of a complainant to be legally represented during criminal proceedings
    • prohibition of evidence relating to the previous sexual history of the complainant

    The submission itself focuses on the rights of the complainant in relation to bail applications and legal representation during the criminal trial proceedings, as well as evidentiary aspects such as previous consistent statements and the admissibility of evidence relating to the complainant's sexual history.

    The Department of Justice convened a national task team on violence against women in 1997 that was responsible for developing national guidelines for all role players handling rape and other sexual offence cases. Each of the departments took responsibility to disseminate the guidelines pertaining to the areas covered by that department.

    At the hearings officials of the Justice Department advised that only 200 copies of the guidelines were produced within Justice. Further copies could not be made due to budgetary constraints. There is a need to ensure that the guidelines are widely disseminated and methods of enforcement should be explored.

  4. Sexual Offences Pilot Courts: The Wynberg Model

    A submission was received from Margot Lochrenberg, Sharon Stanton and Veronica Mukasa on a preliminary evaluation of the Wynberg Sexual Offences Court Model. Some of the broad aims of the project were:

    • to conduct an in-depth evaluation of secondary victimisation of adult survivors of sexual violence within the criminal justice system with specific focus on the Wynberg Sexual Offences model in order to identify any improvements and ongoing problems in the treatment of adult sexual violence survivors,

    • to inform the development of an integrated, appropriate and sensitive system for the treatment and processing of sexual offence cases by the criminal justice system,

    • where necessary to generate policy recommendations for the elimination of secondary victimisation of sexual offence survivors.

    The submission concludes with the question of whether the Wynberg Sexual Offences Court model should be extended nationally. When the final report on the Wynberg court was handed to the department of Justice, a committee was established to evaluate the report and make specific recommendations.

    At the hearings in 1998 members of the Department of Justice Gender Directorate advised that further pilot courts on sexual offences have been established. The department was requested to provide details on where these has been established and an evaluation of how they are functioning.

    CONCLUSION

    In February 1996 and in terms of the Beijing Platform for Action, the Minister of Justice committed the department to introducing new legislation to protect women against violence. This legislation was to include a review of sexual offences legislation and review of the Prevention of Domestic Violence Act. Some two years later these key pieces of legislation are still not in place. Parliament urgently needs to ensure that legislation is enacted in 1998 to give effect to the constitutional guarantee that everyone has the right to freedom and security of the person, which includes the right to be free from all forms of violence from either public or private sources.

    The Committee has communicated to the Justice Ministry and other roleplayers the urgency of introducing to Parliament during 1998 the proposed SALC legislation on Domestic Violence and comprehensive legislation on Sexual Offences against women. This has been done through its document on priority legislation, meetings and telephonic communications.

    SUBMISSIONS

    1. NCPS Inter Ministerial Report
    2. Report by the ICD
    3. Department of Justice: 1997
    4. Department of Justice: 1998
    5. United Nations Commission on Human Rights Report on the Mission of the Special Rapporteur to South Africa on the issue of Rape in the Community
    6. Margot Lochrenberg, Sharon Stanton and Veronica Mukasa: A Preliminary Evaluation of the Wynberg Sexual Offences Court Model
    7. National Association of Democratic Lawyers: Violence Against Women
    8. Women on Farms Project: Domestic Violence, Access to Justice, Maintenance
    9. Gender Advocacy Programme: Domestic Violence
    10. Stephen Owen QC: British Columbia Violence Against Women in Relationships Policy
    11. Tshwaranang Legal Advocacy Centre: Domestic Violence
    12. SALC: Discussion Document on Domestic Violence (1997)
    13. Submission on Domestic Violence (1998)
    14. South African National Council for Child and Family Welfare
    15. Democratic Party: Family violence
    16. Individual Survivor of Domestic Violence
    17. Commission for Gender Equality: Domestic Violence
    18. Women and Human Rights Project Community Law Centre, University of the Western Cape and Rape Crisis and ANC Parliamentary Women's Caucus: Violence Against Women in Relationships: Submissions to the SALC
    19. NICRO: An Investigation into the effectiveness of interdicts granted in terms of the Prevention of Family Violence Act 1993
    20. Rape Crisis and Women and Human Rights Project, Community Law Centre UWC: Proposals for Sexual Assault Legislation
    21. South African Human Rights Commission: Violence Against Women
    22. The Centre for the Study of Violence and Reconciliation: The Legal System and Spousal Killings
    23. End Violence Against Women

     

      

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