Presentation to Parliament on Gender Based Violence by Nicqui Galaktiou (on behalf of IWFSA)

Posted 3 December 2020

SUBMISSIONS TO THE PORTFOLIO COMMITTEE ON JUSTICE AND CORRECTIONAL SERVICES

Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007
The Domestic Violence Act 116 of 1998
Criminal and Related Matters Amendment Bill proposing amendments to:
The Magistrates’ Courts Act 32 of 1944
The Criminal Procedure Act 51 of 1977
The Criminal Law Amendment Act 105 of 1997
The Superior Courts Act 10 of 2013

THE IWFSA:

has a vision to be the voice of women leaders who bring change, inspire and mentor by educating and empowering
is committed to the fight to combat Gender-Based Violence (“GBV”) and Femicide
is committed to assisting Government, business and civil society in ensuring that women, children and vulnerable persons, as defined, including LGBTQI, are protected
welcomes the commitment by Government to act expeditiously and decisively against GBV which has been declared a national emergency!

Many knowledgeable and experienced institutions and organisations have presented and covered numerous of the proposed amendments and we do not feel it necessary to re-iterate and ventilate them again more particularly matters relating to bail, parole, resources for shelters and housing, counselling, job skills and training, protection orders, intermediaries and seizure of weapons

BILL #1

CRIMINAL LAW (SEXUAL OFFENCES AND RELATED MATTERS) AMENDMENT ACT 32 OF 2007 (“AMENDMENT BILL”)

Amendment of section 2 of Act 32 of 2007

We welcome the amendment to this section which expands the record of persons who will be listed on the National Register for Sex Offenders from the more limited definition in respect of only children and persons who are mentally disabled to include any person convicted of any sexual offence
The proposed amendment also expands to identify the places that any person listed on the Register would be permitted to work at, have access to or authority or supervision over vulnerable persons (as defined) as opposed to the more narrow definition of children or persons who are mentally disabled
Section 40(a)(b) defines an employer as any person, organisation, institution, club, sports club, association or body who employs employees who in any manner and during the course of their employment will be placed in a position of authority, supervision or care over a person who is vulnerable or working with or will gain access to a person who is vulnerable or places where persons who are vulnerable are present or congregate
This sub-section is more expansive but the point is that certain concerns have been raised by parties that the definition in the Act is focused on a limited interpretation of “employer” and that an environment such as a hospital, orphanage or girl scouts would not fall under this definition. This is not our understanding of the wording of the Act in that it covers a facility such as a hospital where vulnerable people would be cared for

Amendment of section 42 of Act 32 of 2007, as amended by section 36 of Act 66 of 2008

The insertion after section 42(3) of section 42(4) states that:

“The Registrar must make the full names, surname, identity number and the sexual offence, of every person whose particulars have been included in the Register, available on the website of the Department of Justice and Constitutional Development.”

Propose that the conviction and date of conviction should be reflected in the National Register for Sex Offenders as referred to in section 42(1) which identifies the sexual offence concerned

This section seems to conflict with section 44 which addresses the requirements and identifies the persons and/or organisations who qualify to apply to the Registrar for a prescribed certificate

Section 42(4) states that the Register will be available on the website of the Department of Justice and Constitutional Development implying it will be available to the public by accessing the website. This could not be the intention and we therefore propose that section 44 titled “persons entitled to apply for certificate” should qualify that it is not open to the public but the persons identified in sections 44(a)(2)(g)
It is self-evident that making the Register available to the public will create risks, including to the perpetrator’s family and may even lead to mob justice and retaliation

The Protection of Personal Information Act 4 of 2013 (“POPIA”)

POPIA and related legislation would have to be amended to align with the proposed amendments to the Sexual Offences Act
Consideration of section 14 of the Constitution (right to privacy)

Amendment of section 45 of Act 32 of 2007

This proposed amendment does not comply with the requirements of the Labour Relations Act 66 of 1995 (“LRA”)
Process needs to be followed for lawful termination of the employment of an employee
The necessary sections of the LRA and any consequential and/or related legislation should be amended to allow for immediate termination of employment in line with this Act. This will give rise to many claims relating to inter alia possible unfair dismissal and must be considered very carefully
The reference to an employer taking reasonable steps in section 45(d) is difficult to define and to interpret and may allow for legal loopholes. This section also does not identify a timeframe within which an employer must take such “reasonable steps”

Definition of vulnerable persons in terms of section 40(c)

Our concern pertains to section 40(c)(b) which identifies one of the categories of vulnerable persons as a female under the age of 25 years. This would imply that it is a female between the ages of 18 and 25 years as a child, as defined in sub-section 40(c)(a) is a person under the age of 18
It is a concern that a female under the age of 25 and as defined as a vulnerable person should not be discriminated against when seeking employment in that an employer may determine that the onus / obligation on the employer to comply with section 45 is too onerous and may preclude females under the age of 25 from such employment

Section 45 titled “obligations of employers in respect of employees” places an obligation on an employer, at the date of commencement of the Chapter, who has in his or her employment any employee, must apply to the Registrar for a prescribed certificate. If the Act is implying that all employers must consider all employees as currently employed then I think it should be more clearly worded as this will place an obligation on most employers in South Africa
Many employers in South Africa employ females under the age of 25 and the introduction of females under the age of 25 as a defined vulnerable person will not only, in all probability, exclude these women from obtaining employment but it would also place a perpetrator in a position where it would be very difficult for him or her to find employment
Example: if an employer was interviewing two females, one being 24 years old and the other 26 years old, it is highly probable that the employer will choose the 26 year old so as to avoid this obligation. In the same circumstances if an employer was considering a female under the age of 25 for a position and a male of any age, the employer may be inclined to employ the male to once again avoid this obligation

Section 49 – contents of Register

The amendment to section 49(b)(iv) records that the sentence imposed and the date and place of conviction and sentence together with the prisoner’s ID must be included in the Register. This is more expansive than section 42.
It must therefore be clarified, as mentioned earlier, as to whether the Register will be available to the public or not. We re-iterate the concerns regarding the risks should the Register be made available to the public

Substitution of section 51 of Act 32 of 2007

There is no implication that the Registrar does not have the appropriate experience, conscientiousness and integrity as required in section 42(2) however consideration can be given as to whether an application for removal from the Register should be determined by a Judge or Magistrate
Consideration should be given as to whether the victim and/or complainant should be informed by the Registrar prior to the person’s removal from the Register within a prescribed timeframe of such removal for example within 14 days of receipt of the application and the manner of such notification would have to be prescribed

BILL #2

DOMESTIC VIOLENCE ACT 116 OF 1998 AMENDMENT BILL

Meaning of domestic relationship – amendment of section 1

Section 1(h) defines the meaning of “domestic relationship” to mean a relationship between a complainant and a respondent if they share or shared the same residence, premises or property within the preceding year. The phrase “within the preceding year” is unclear in that it does not identify the period of time in which the residence must have been shared
If the insertion is intended to mean for a full calendar year, 12 months, then that should be clarified to avoid any misinterpretation. If it intended to mean a lesser period, that should be clarified
It might be clearer to change year to 12 months

Definition of harassment

Section 1(i)(g) has removed the definition of stalking which many of the organisations have complained about. We note that the definition of harassment has been expanded upon in section 1(a) to include conduct that would constitute stalking however given the submissions that have been made by the other parties we would support the retaining of the definition of stalking for the purposes of clarity and understanding
Section 1(o) deals with the definition of “harassment”. The words “a pattern of” and “repeatedly” have been removed. We understand the benefit in deleting these words, but it is important to draw a balance between harmful repetitive conduct and a once off incident such as for example one text which would allow the recipient, to a lay charge of harassment. Given the acrimonious relationships that may arise during, for example divorce proceedings, a person may abuse the law and utilise this section for his or her own benefit

This can lead to overburdening the system where a person lays a charge of harassment for one text or one phone call which would be deemed to be an act of domestic violence. Without undermining the importance and seriousness of the offence it is important to strike a balance between repetitive conduct and once off conduct. However given the seriousness of the current scourge of GBV in the country, it may be better to err on the side of caution and allow the amendment to remains as is. We are just noting our concern in this regard.

Definition of related person

Section 2(t) deals with the definition of “related person” however this needs clarification
The definition of related person means “any member of the family or household of a complainant, or any other person in a close relationship with the complainant.” This wording may be open to misinterpretation and allow for the exploitation of loopholes in the legal system particularly in respect of the definitions of “family” and “close relationship”
Given that the definition “related person” plays a significant role in the wording of this Act, the definition must be narrowed down and clarified

Insertion of sections 2A and 2B

Section 2A(2)(a) which addresses the necessity for a functionary to complete a report and submit the report to a social worker and to the South African Police Services, does not identify a timeframe within which to do so
It states that the functionary must if reasonably possible provide the complainant with a prescribed list of names and contact particulars of accessible shelters and public health establishments and hand the notice to the complainant in the official language of the complainant’s choice and explain the content of such notice including the remedies at the complainant’s disposal and right to lodge a criminal complaint

The practical implementation of the law is to a large extent hampering the enforcement of the law and the support to victims. In this instance, a functionary should not have a discretion as to whether it is reasonably possible to provide a complainant with a prescribed list of names and contact particulars of accessible shelters and public health establishments amongst other things as referred to above. This should be peremptory and should not be discretionary

Obligation to report domestic violence and to provide information

Section 2(B)(1) states that such report must be made as soon as possible to a social worker and the South African Police Services
The difficulty is that the wording “as soon as possible” is open to attack, abuse and misinterpretation. If a person fails to comply with this subsection he/she is guilty of an offence and therefore there should be no ambiguity. Making an adult person responsible to report such suspected acts to both a social worker and the South African Police Service is unfeasible. The clause should limit the reporting to either of the two in the alternative as it places an unreasonable onus on a person who may reside or work in an area where it is difficult to contact, either in person, electronically or telephonically, a social worker

Amendment of section 8

The South African Police Service should not have a discretion as to when to arrest a respondent and when not. If there has been a breach of the protection order by the respondent, the member of the South African Police Service should not have a discretion to determine that there are insufficient grounds for arresting the respondent and should not be given the option to hand a written notice to the respondent, Section 8(5) must be amended to remove this discretion

BILL #3

Criminal and Related Matters Amendment Bill proposing amendments to:

The Magistrates’ Courts Act 32 of 1944
The Criminal Procedure Act 51 of 1977
The Criminal Law Amendment Act 105 of 1997
The Superior Courts Act 10 of 2013

Amendment of section 158

The proposed amendment to section 158 is that witnesses outside the Republic and who give evidence by means of closed-circuit television or similar electronic media are regarded as witnesses who have been subpoenaed to give evidence in the court in question. There should be strict guidelines given for the evidence of such witness to testify via any video audio means in that the witness should be physically monitored to ensure that his or her evidence is not tainted. Provision should be made for an independent legal representative, court official etc. or any other independent party to supervise the giving of evidence. This will reduce any concerns regarding tainting of evidence and narrow grounds of appeal
No need to expand further as the procedural matters have been comprehensively and fully addressed to the Honourable Committee

Abuse of the legal system

Complainants who lay false charges particularly in instances where there’s personal vendettas and retaliation should be charged with perjury or any other relevant offence given that such abuses take place often and give rise to an overburdening of the system and to undermining the seriousness and importance of the true complainants and victims

Conclusion

The IWFSA compliments Government and all stakeholders for getting us to this point and is committed to continue to engage with all stakeholders in support of the full implementation of these bills. We are encouraged by the collaborative approach, transparency and urgency in dealing with these Bills and hope to witness its promulgation very soon. It is our privilege to submit our initial comments and proposed amendments to the Portfolio Committee on Justice and Correctional Services

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