Criminal and Related Matters A/B & Domestic Violence A/B: Department briefing on public submissions

Meeting report

The Chairperson convened the virtual meeting, welcoming Members and the delegation from the Department of Justice and Constitutional Development. She noted the apology from Mr John Jeffrey (the Deputy Minister of Justice and Constitutional Development), who was unable to attend the meeting.

The purpose of the meeting was for the Committee to be briefed by the Department of Justice and Constitutional Development (DOJCD) on the written submissions and comments received on the Criminal and Related Matters Amendment Bill [B17B-2021] and the Domestic Violence Amendment Bill [B20B-2020]. The delegation from the DOJCD consisted of Ms Kalay Pillay (Deputy Director-General: Legislative Development), Ms Ntombi Mnyikiso (State Law Advisor), Mr Makubela Mokulubete (State Law Advisor), Ms Patricia Whittle (Parliamentary Researcher), and Mr Phomolo Sekgobela (Parliamentary Liaison Officer).

The Chairperson reminded Members that the Committee previously received a briefing from the Department of Justice and Constitutional Development on 23 June 2021, relating to three Amendment Bills on the issue of gender-based and domestic violence. These included the Criminal Law (Sexual Offences and Related Matters) Amendment Bill [B16B-2020], the Criminal and Related Matters Amendment Bill [B17B-2020], and the Domestic Violence Amendment Bill [B20B-2020]. Public comments were received between 11 June and 16 July 2021 to ensure sufficient time for submissions to be made on the proposed legislative changes. A total of 87 submissions have been received on these three Amendment Bills, and the majority expressed support for the proposed legislative changes. Nine written submissions from organisations and individuals were received for the Criminal and Related Matters Amendment Bill, and 19 were received for the Domestic Violence Amendment Bill. This meeting is to engage with the submissions received on the Criminal and Related Matters Amendment Bill, and the Domestic Violence Amendment Bill.

Briefing on the written submissions on the Criminal and Related Matters Amendment Bill

The first item on the agenda was for the Committee to engage with the written submissions received on the Criminal and Related Matters Amendment Bill and for the Department of Justice and Constitutional Development to brief the Committee on the submissions received together with the departmental responses. Ms Kalay Pillay, Deputy Director-General: Legislative Development, presented the briefing.

Summary of the written submissions received

It was reported that a total of nine submissions from organisations and individuals were received for the Criminal and Related Matters Amendment Bill. The majority of submissions supported the amendments. The submissions that were received were outlined to the Committee together with the departmental responses.

Regarding Clause one, the following submissions were outlined:

The MEC for Social Development of the Western Cape referred to section 57A(7)(d) and stated that paragraph (d) should be deleted or clarified by providing that only in circumstances where no other intermediary is available and the court is able to ensure that vulnerable witnesses will be protected from undue psychological, mental, or emotional stress, trauma and suffering while giving evidence, can the court continue the proceedings in the absence of the appointed intermediary. There should be consequence management for intermediaries who are absent without good cause. The departmental responses were that the proposal is not supported. Subsection (7)(d) should not be considered in isolation. Subsection (7)(c) makes provision for the appointment of a “new” intermediary. It is submitted that the proposed subsection (6), which provides for an intermediary to be summoned to appear before a court, is sufficient to ensure that intermediaries cooperate with the court.

The Law Trust Chair in Social Justice stated that the reference to physical conditions” in the proposed new section 51A(1)(b) is too wide. It is recommended that factors should be stipulated that must be taken into consideration. The departmental response stated that it should be noted that subsection (1) affords the court with the discretion to decide, with reference to the witness’ undue psychological, mental, or emotional stress, trauma, or suffering, whether an intermediary should be appointed or not. It is submitted that it will be difficult for the Legislature to stipulate factors that should be considered by the court in the case of a “physical condition”. It may therefore be more appropriate to provide the courts with sufficient leeway to determine the presence of “physical conditions” on a case basis.

The MEC for Social Development of the Western Cape referred to section 51B(3)(e) and suggested that the term head of a court be clarified. The term “most senior magistrate” is vague because it could refer to age or the time when the magistrate started service at the office. It is not necessary to define who a “head of court” is. Reference to “head of a court” is a term that is widely used in legislation and is well established. The term implies a judicial officer at any court, who is responsible for the execution of certain duties associated with the functioning of the court.

In addition, the MEC for Social Development of the Western Cape proposed that a new section 51B be introduced in terms of which a court should be allowed on application or of its own accord to allow technology to be used as a communication tool to enable witnesses who, due to mental and physical conditions, are unable to give viva voce evidence. The court should also be obliged to give reasons for allowing or refusing the application. It should also provide for training of intermediaries in the use of augmentative technology.

The proposal is not supported. Alternative means to give evidence, other than viva voce, is generally recognised and is subject to the discretion of the court to allow this if it is in the interest of justice. Section 51A deals with intermediaries, and they are not persons with technical expertise to operate technologies that enable a witness to communicate. Section 161 of the Criminal Procedure Act 51 of 1977 is broad enough to allow for "other forms of non-verbal" communications as a medium to give evidence. Technologies in this field develop at a rapid pace and may require a procedure for the court to evaluate the extent of autonomy of the witness to communicate as well as the reliability of the communications received or interpreted by experts. This will be addressed in the revision process of the Criminal Procedure Act.

Regarding Clause no. two, the following submissions were outlined:

The MEC for Social Development of the Western Cape recommended that subsection (1)(a)(ii) be amended by the inclusion of the words “with whom the accused is or has been in a domestic relationship”. A subparagraph (iv) should be inserted as follows: “(iv) with an element of violence committed while the accused is or was a sentenced offender placed under correctional supervision, day parole, parole or medical parole as contemplated in section 73 of the Correctional Services Act 111 of 1998, in respect of an offence committed with an element of violence.”. It is submitted that the definition of “domestic relationship”, as reflected in the Domestic Violence Act 116 of 1998, is sufficient to include “existing and previous” relationships. It is not necessary to insert the words as proposed. It is submitted that the ambit of subparagraph (i), namely, “an offence referred to in Part II or III of Schedule 2” to the Domestic Violence Act is wide enough to cover the proposal. The inclusion of subparagraph (iv) is therefore not necessary.

The Department of Justice and Constitutional Development noted the comment by the Sonke Gender Justice that supported the requirement that the prosecutor should be required to put the reasons for not opposing bail on record in cases of domestic violence.

COSATU supported the proposal to tighten bail conditions and argues that there should be clear stipulation of cases and conditions where bail should not be granted. The principal legislation already provides for circumstances where police or prosecutor bail may not be granted. The Criminal and Related Matters Amendment Bill seeks to provide for additional circumstances where police or prosecutor bail may not be granted, namely, where the accused is in custody for an offence against a person who is in a domestic relationship with such an accused or for contravening a protection order that was obtained against the accused to protect the victim against the accused. The principal legislation and the proposed amendments in the Criminal and Related Matters Amendment Bill contain provisions relating to factors, which a court must consider when hearing bail applications.

Regarding Clause no. three, the following submissions were outlined:

The Law Trust Chair in Social Justice proposed that an accused person should be psychiatrically evaluated as soon as possible after arrest, but before first appearance, for a bail application to determine factors that could have an effect on the person having committed the offence and that the information be captured for data purposes and that the report be submitted to the Director of Public Prosecutions (the DPP) for bail proceedings. The proposal is not supported. The feasibility of the proposal is questioned. It should be kept in mind that the psychiatric evaluation of a person is not necessarily something that can be concluded within 48 hours after arrest, which is the general norm for the first appearance of the alleged offender. The Department of Justice and Constitutional Development was also concerned with regard a number of unintended consequences associated with regard to the proposal, including the possible unjustifiable limitation of the alleged offender’s section 35 rights (such as the right to remain silent and not to be compelled to make a confession or admission), and whether the State has sufficient resources (human and financial) to ensure a proper evaluation and reporting within the standard 48 hours. The Department of Justice and Constitutional Development is further of the view that the proposal does not fall within the ambit of the Bill and is not something that should be considered without comprehensive research, with specific reference to the administration of justice, the rights of alleged victims and alleged offenders, having been conducted.

Regarding Clause no. four, the following submissions were outlined:

The MEC for Social Development of the Western Cape recommended that paragraph (b) be amended to promote the right of the victim or complainant under section 60(2A)(b) to present their views to the court and accommodates the kind of constraints that victims may be subject to. The proposal is not supported. Paragraph (b) is clear and unambiguous to the extent that the court is obliged to take any view expressed by an alleged victim into account. It is submitted that the Legislature should not be too prescriptive in this regard and allow the courts to exercise its discretion in this regard.

Regarding Clause no. seven, the following submissions were outlined:

Sonke Gender Justice stated that the proposed wording in 2(a) should be amended to include “sign language and gestures”. It is submitted that reference to “gesture-language” in paragraph (a) is sufficient to cater for those instances where a person lacks a sense of hearing or the ability to speak. The term used is wide enough to include “sign language”. It is submitted that the wording used in the paragraph is clear and unambiguous.

Regarding Clause no. eight, the following submissions were outlined:

The MEC for Social Development of the Western Cape recommended that consideration be given to provide for instances where certain witnesses are not able to give viva voce evidence but would require an intermediary and the use of technology as a tool of communication. With regard to clause 8(d) it is recommended that the term “most senior judicial officer” be defined. The Department of Justice and Constitutional Development referred the Committee to its earlier responses.

The Law Trust Chair in Social Justice recommended that factors should be stipulated to clarify what would qualify as a “physical condition”. The Department of Justice and Constitutional Development referred the Committee to its earlier responses to similar submissions.

Regarding Clause no. nine, the following submissions were outlined:

The MEC for Social Development of the Western Cape recommended that provision be made for a representative of the victim to attend parole hearings or to make representations on behalf of the complainant. It is recommended that an obligation be placed on the sentencing court in matters subject to section 299A to enquire from the prosecutor, in the absence of the victim, as to the efforts that have been made to secure the victim’s attendance at court. The departmental response outlined that section 229A provides for persons other than the victim (i.e., relatives) to be informed of the right to be present and make presentations when parole is considered. This proposal was not supported, a prosecutor as a matter of course always determines whether evidence will be led in aggravation of sentence, and deals with a matter accordingly.

The Law Trust Chair in Social Justice recommended that, in the event where an offence was committed against a victim who is a student at a tertiary institute, the imposition of a restorative justice programme should be considered in addition to or in the place of a sentence to be imposed by the court. The proposal is not supported. It is questionable whether it would be feasible to introduce a sentencing option, which does not apply equally to all offenders (with specific reference to the circumstances under which the offence was committed).

Sonke Gender Justice supported the notion that victims must be heard during parole processes and supported the amendment of section 299A of the Criminal Procedure Act.

Regarding Clause no. 18, the following submissions were outlined:

The MEC for Social Development of the Western Cape proposed that paragraph (d) should be deleted or clarified by providing that only in circumstances where no other intermediary is available and the court is able to ensure that vulnerable witnesses will be protected from undue psychological, mental, or emotional stress, trauma and suffering while giving evidence, can the court continue the proceedings in the absence of the appointed intermediary. There should be consequence management for intermediaries who are absent without good cause. The Department of Justice and Constitutional Development referred the Committee to its earlier responses to similar submissions.

The Law Trust Chair in Social Justice recommended that factors should be stipulated to clarify what would qualify as a “physical condition”. The Department of Justice and Constitutional Development referred the Committee to its earlier responses to similar submissions.

Regarding Clauses no. 15, 16, and 17, the following submissions were outlined:

Sonke Gender Justice supported the proposed amendments. However, it is re-iterated that there is very little research available that indicates that an increase in severity of punishment in fact deters crime. The Department of Justice and Constitutional Development noted the comments.

Briefing on the written submissions on the Domestic Violence Amendment Bill

The second first item on the agenda was for the Committee to engage on the written submissions received on the Domestic Violence Amendment Bill and for the Department of Justice and Constitutional Development to brief the Committee on the submissions received, together with the departmental responses on each submission. Mr Makubela Mokulubete, State Law Advisor, presented the briefing.

Summary of the purpose of the amendments

The Domestic Violence Amendment Bill seeks to amend the Domestic Violence Act so as to amend and insert certain definitions, further provide for the manner in which acts of domestic violence and matters related thereto, must be dealt with by certain functionaries, persons, and Government departments, further regulate obtaining of protection orders in response to acts of domestic violence, delete and amend provisions of certain laws, and to provide for matters connected therewith.

It was reported that a total of 19 submissions from organisations and individuals were received for the Domestic Violence Amendment Bill. The majority of submissions supported the amendments, with some proposals necessitating technical amendments. The submissions that were received were outlined to the Committee, together with the departmental responses that showed that there was a majority support for the amendments (see the attached detailed summary of the submissions). The majority of written submissions that were received related to Clause no. 2 regarding definitions and were outlined to the Committee.

The general comments received on the Domestic Violence Amendment Bill pointed out implementation issues and enforcement difficulties. These comments show the importance of ensuring that the Domestic Violence Amendment Bill is implemented properly with the necessary capacitation. The Bill seeks to include relevant functionaries and, by way of Section 18B, provides for directives and instructions that will include training. Some of the amendments that seek to ensure implementation and accountability with the relevant officials where implementation is found wanting. While it is agreed that the law is often a blunt tool when used to fix societal ills, the making of directives by relevant government departments relating to Clause no. 18B is aimed at providing clarity on what role-playing departments must do when dealing with domestic violence. The law provides sufficient safeguards to protect against abuse of process. A final protection order will not be made without providing the respondent an opportunity to state their case. They may also be required to carry costs in terms of the existing section 15 if found to be vexatious, frivolous, or unreasonable. All these processes are overseen by the courts.

The amendments seek to ensure that services are streamlined, accessible and that officials are held accountable. The training of officials, coupled with the sanctions to be imposed by the instructions, would resolve some of the concerns raised by the submissions. Officials refusing to render the required assistance may face disciplinary proceedings, and this is intended to curb the challenges experienced in this regard. The Domestic Violence Amendment Bill makes room for online application for a protection order, but this does not do away with the manual applications that are still permitted if online application cannot be used, is inaccessible or is not preferred. What is also intended by the Domestic Violence Amendment Bill is to have facilities available for online applications at various strategic places such a police stations, shelters, and other suitable places. There will be a drive to inform people how to apply for domestic violence protection orders online.

The submissions that were received were outlined to the Committee together with the departmental responses that showed that there was a majority support for the amendments (see the attached detailed summary of the written submissions that were outlined to Members).

Discussion

The Chairperson thanked the delegation from the Department of Justice and Constitutional Development for the lengthy and detailed briefing made to the Committee and the summary document that was provided. She noted that the proposals that have been made relates mostly to technical amendments and meanings.

Mr T Dodovu (ANC, North West) also thanked the delegation for the briefing made to the Committee. He stated that the issue of domestic and gender-based violence in South Africa remains significant, and the seriousness of the issue is demonstrated by the number of stakeholders, institutions, individuals, and governmental entities that have made submissions on these Amendment Bills. It is crucial that all of the submissions received be properly considered in an impartial and objective manner to demonstrate the commitment of Parliament in addressing the issues of domestic and gender-based violence in the country.

The meeting was adjourned.