1. Introduction

The Commission wishes to concentrate substantially on the issue of violence against women, as we believe that legislative amendments in this area are long overdue, and should be prioritised as a matter of urgency by your committees.

There are other issues which the Commission consider important in the arena of law reform, and these include the draft bill for amendments to the Maintenance Act, and the initiatives around amendments to the Marriage Act.

The Commission supports the submissions made today by the Commission on Gender Equality. We had hoped to work jointly on our submissions, and this was favourably discussed between our offices. Unfortunately, given the short notice we received about the hearings, we were unable to synchronise the process of preparation, but look forward to future joint projects where appropriate.

2. Background

There are many other agencies who are more specialised and better placed to provide a detailed and comprehensive indication of the situation on the ground, and the widespread and endemic nature of domestic violence. The Commission raises the above statistics merely to indicate the level of the problem, and to motivate for the issue to be addresses as a priority to address a situation which is a crisis.

South Africa's commitment to address the issue of violence against women is set out in the following:

• The Bill of Rights, with particular reference to the clauses dealing with:
  • Equality
  • Human dignity
  • Freedom and security of the person
  • Privacy
• The Convention on the Elimination of All Forms of Discrimination Against Women
• General Recommendation 19 of the Committee on the Elimination of Discrimination against Women
• The Declaration on the Elimination of Violence Against Women
• The Beijing Declaration and Platform of Action.

The Commission believes that the enactment of certain legislation, and legislative amendment which is discussed below, will go a long way to meeting the obligations of the state to eliminate all forms of violence against women, whether occurring in public or private life.

3. Legislation

There are various problematic issues surrounding sexual offences which need attention. These are both questions of substantive and procedural law.

(a) The definition of rape

The existing definition of rape, as set out in our common law, is unduly restrictive. Its definition as developed in case law effectively excludes many forms of sexual assault, which are defined, prosecuted and punished as such, but which would more appropriately fall under the definition of rape.

The Chief Justice in the matter of The State v Chapman 1997 (3) SA 341 (SCA) stated as follows:

Rape is a very serious offence, constituting as it does, a humiliating, degrading and brutal invasion of the privacy, the dignity and the person of the victim. The rights to dignity and privacy and the integrity of every person are the basis to the ethos of the Constitution and to any defensible civilisation. Women in this country are entitled to the protection of these rights.

The courts have a duty to send a clear message to the accused and to other potential rapists and to the community that the courts are determined to protect the equality, dignity and freedom of all women and show no mercy to those who seek to invade these rights.

It is clear that such judicial protection and sentiments should not be limited to the current offence of rape. Violence against women is a problem which is systemic, and its manifestations are tied to the power relations which exist in society, and which are constantly reinforced on many different levels. The law must take cognisance of the wide range of behaviours which constitute violence against women, and more particularly under that category, those actions which amount to rape.

For the purposes of this paper, the use of the term "rape" refers to the broader category of offences, many of which currently fall outside of the common law definition.

In addition, there is merit in the introduction of legislation where the crimes of rape and other sexual offences are clearly set out and defined. The duty to send out clear messages is not the duty only of the courts, but of the legislature. A statute, which contains appropriate and clear definitions, will, in addition to being a progressive step in law reform in this area, also be important for the purposes of educational and empowering programmes.

Recommendations

The Commission requests that consideration be given to:

• The introduction of a new piece of legislation which includes a statutory definition of rape.
• Such definition to be widened, in order to:
  1. Incorporate a wide range of offences, some of which are currently categorized under sexual offences or indecent assault, so as to introduce a broad definition of rape,
     or
     
  2. revisit the existing definition in order to address the main qualifications relating to the sex of the offender and the victim, and following therefrom the requirement that it be the penetration of a female by a male sexual organ.

(b) Cautionary Rule

The need to exercise "caution" with respect to the evidence of witnesses in sexual offences amounts to unfair discrimination on the grounds of sex, given that most adult witnesses are women. The underlying rationale for the rule is based upon the generalised assumption that women tend to lie about rape and sexual offences. Such a view is inappropriate in a society which guarantees equality and dignity for all.

In the matter of The State v Chapman (cited above), the court expressed, albeit indirectly, some doubts regarding the existence of the cautionary rule, although the court was not required to decide on any aspect of this rule. However, this question was argued before the Supreme Court of Appeals in the matter of Rodney Jackson v The State (95/97), in which the State raised the unconstitutional nature of the rule in the face of an appeal against a conviction on the basis that it was not applied. Given that the Appellant conceded that the cautionary rule had been properly applied in the matter, the court may not find it necessary to decide on this matter.

Judgement has yet to be handed down, and we await it with interest. Should the court find that in the light of our new Constitution the cautionary is to be abolished, this will finalise the matter. However, should the court deem it unnecessary to decide on the issue, the question will have to be addressed in a piece of legislation which deals with rape and sexual offences, in which the cautionary rule is clearly abolished.

Recommendations

The Commission requests that consideration be given to:

• The inclusion in a new piece of legislation of an unambiguous abolition of the cautionary rule, should the matter not be dispensed with by the Supreme Court of Appeals.

Statements made by rape victims, and which are consistent, are admitted in a matter, and often strengthen the state's case. However, a repercussion of the admission of such statements is the practice of a negative inference being drawn where such a statement is not made, and the complainant's credibility being challenged. This practice is problematic as in many cases the trauma and shame associated with sexual offences often precludes the making of such statements.

The Law Commission suggested in its report on Women and Sexual Offences (April, 1985) that legislation should address this problem, and make clear that the absence of previous consistent statements cannot be used to attack the credibility of the complainant. The Commission supports this recommendation.

Recommendations

The Commission requests that consideration be given to:

• The inclusion in a comprehensive statue dealing with sexual offences a provision prohibiting the link between the absence of previous consistent statements and the credibility of the complainant.

Section 227 of the Criminal Procedure Act provides for the admission of evidence relating to the previous sexual history of a female complainant when trying a sexual offence, with the leave of the judicial officer, if satisfied with the relevance of such evidence.

The Commission has been advised by specialist organisations that this limitation is seldom applied properly. In addition the qualifying criteria of relevance is open-ended, and may not effectively limit the admission of such evidence in cases where it is not necessary.

Recommendations

The Commission requests that consideration be given to:

• The formulation of a more specific and clear test for the determination of admissibility of evidence relating to previous sexual history of a complainant ina case of a sexual offence.
• Such a test, or guidelines could be introduced into the Criminal Procedure Act, and / or included or repeated in a new piece of legislation dealing with the various issues around sexual offences.

The Commission supports the recommendations of the South African Law Commission to effect certain amendments to this Act, which was introduced in 1993, and was the first attempt by Parliament to develop an infrastructure which facilitated speedy, cost-effective and "user friendly" access to legal remedies in situations of domestic violence.

It is to be welcomed that the Law Commission addresses the constitutionality of measures under the existing and future legislation, as it can be argued that the measures potentially infringe upon the rights of a Respondent to the presumption of innocence, and a fair trial. The recommendation's that such violations, should one accept that they might occur, can be justified under certain circumstances, is supported.

The recommendations seek to increase the scope of the existing Act, to include many other forms of violence and intimidation which are not currently included, such as sexual abuse, the threat of sexual abuse, harassment, damage to property, or the threat thereof, loitering, following, approaching or hindering access. In addition, recognition is given to the fact that intimidation may take the form of a pattern of behaviour, and not specific incidents. Given that domestic violence manifests itself in so many forms, the widening is crucial to allow any legislation to be as effective as possible to protect victims of domestic violence.

It is crucial that access to the protection of an interdict be increased, and the Commission supports the recommendations that certain provisions in the current Act, which have the effect of limiting the possibility of obtaining an interdict, be removed. More particularly:

• the current Act only recognises married couples, or couples who co-habit; the recommendations broaden the scope of who may apply for an interdict, by taking account of other relationships where domestic violence takes place;
• the introduction of the possibility that the Sheriff's costs be borne by the state in appropriate circumstances;
• the introduction of a broader basis to establish jurisdiction;
• the recommendation that the possibility of a third party making application for an interdict on behalf of a victim of domestic violence, which exists in the current Act, be retained;
• the possibility that court officials be obliged to assist victims of domestic violence with their applications;
• the improvement of after hours procedures both at the courts and at police stations.

The fact that domestic violence takes place in a social context must be recognized, and the necessity of a holistic approach to the safety of an applicant is important. Accordingly, the Commission approves of the recommendations which expand the possible relief which can be obtained with an interdict, such as the inclusion of the possibility of obtaining

• an interim maintenance order;
• an interim custody and/or access order;
• an order excluding a respondent from a shared residence in specific circumstances;
• an order relating to payment of rental or mortgage instalments;
• any other specific order or conditions in the interdict which may be necessary.

The Commission requests that consideration be given to:

• The definition of domestic violence be augmented to include the specific actions of stalking, psychological abuse, and economic abuse.
• The definition also includes a general criterion of "abusive and controlling behaviour that harms the health, safety and well being of the applicant or any child in their care".
• The provisions contained in section 4 of the Act, relating to the mandatory reporting of ill treatment of children be rendered consonant with section 42 of the Child Care Act (Act 74 of 1983).
• That these amendments be tabled and discussed as a matter of urgency, with a view to passing and implementing the bill as soon as possible.

4. Enforcement

The protection afforded by an interdict duly obtained, depends largely on the co-operation and efficiency of the South African Police Services, as they are faced with day-to-day reports of domestic violence, both before and after an interdict has been obtained. An interdict does not offer any protection unless it is properly enforced, and in this regard victims rely almost entirely on the assistance and intervention of the police.

Accordingly, the Commission strongly supports the widening of police participation in the prevention of domestic violence. In terms of the Act, the recommendations that the police actually assist a victim with the application for an interdict, instead of merely referring a victim to the courts, is welcomed. Further, the Commission supports the proposal that a Police official be empowered to go to court and make the application on behalf of a victim.

It must be borne in mind that the South African Police Services are to some extent still dealing with an about-turn from a policy which set out a firm non-interventionist approach. Changes in policy must be translated into changes in attitude among personnel. In this regard, training of police personnel on gender issues, and the handling of domestic violence is necessary, both as a core component of any training programme, and as an on-going education focus.

5. Enabling environment

• The provision of state shelters for women who seek refuge from abuse
• Appropriate training programmes for all personnel involved in domestic violence, with particular emphasis on the police personnel, and officers of the court.
• With respect to sexual offences, judicial officers need to be made aware and sensitised to the issues, enabling them to properly implement protective procedural and evidentiary provisions.
• Given that many women seek protection from the legal system without legal assistance, all officers of the court should be trained to give them assistance, and uniform guidelines regarding such assistance should be developed.

Recommendations

The Commission requests that consideration be given to:

• The speedy establishment of the Family Courts
• The consideration of these issues in the policy initiatives of the Department of Justice.

6. Other matters

Black Administration Act

The ongoing operation of this act is problematic. In so far as there may be sections which are still required they should be redrafted into a fresh statute. However, section 11, which provides that certain black women are deemed to minors, under the guardianship of their customary law husbands requires immediate attention.

Marriage Act

The Commission welcomes the Law Commission project to revisit this statute, with particular reference to customary law marriages.

Maintenance Act

The Commission supports the introduction of interim amendments to the Maintenance Act, pending the results of the research project on substantial law reform in this area. The Commission strongly supports the amendments relating to default judgement orders, deduction from wages and other methods of payment and the incorporation of principles and guidelines. With respect to the option relating to enforcement, the Commission believes that the Portfolio Committee will be guided by more informed submissions in this regard.

In addition to law reform, the improvement of private maintenance collection must address systemic problems, such as access to the courts, the training of personnel, and the question of staff shortages. In terms of access, the possibility of after-hours maintenance courts should be considered in the gender policy development processes taking place in the Department of Justice, as this will significantly improve access to the court for working women.