DA proposes urgent legislative reforms to curb domestic abuse

17 September 2019

In recent weeks, 19-year old Uyinene Mrwetyana, 14 year-old Janika Mallo, and boxing champion, Leighandre “Baby Lee” Jegels were among hundreds of women brutally raped and murdered in an often incomprehensibly cruel and evil fashion. They join a long list of names, which include those of Courtney Pieters, Karabo Mokoena, Valencia Farmer and Meghan Cremer, who were failed by a society that ought to have protected them from harm instead of preying on them, and by a government that should have responded to the soaring number of sexual offences, abuse and femicide years ago.

The tragic reality is that unless swift and decisive action is taken, history will keep on repeating itself, leaving many more women to join the list.

Last week’s annual crime statistics release revealed a tragic national reality, which is that every day almost 114 people reported being raped - an increase of 3.9% from the same period the year before. The overwhelming majority of these cases would have been women. Many more cases are likely to have remained unreported. During the same period, sexual offences against children increased by 3.8%. Women were the victims of two thirds of all reported sexual offences, while children are the victims of nearly half the reported sexual assault cases.

The country needs urgent, clear and decisive action that goes further than jailing perpetrators and that addresses the root causes of the social and moral collapse. We also need strong leadership both in government as well as in the form of a Parliament that makes effective legislative decisions.

The party has already written to the President for a bipartisan meeting to discuss solutions to the scourge of gender-based violence, and have called on the President to establish a special task team to review the processes and systems of the country’s law enforcement agencies and criminal justice system. The DA has also written to the Minister of Police to request that he sends the Draft Criminal Law (Forensic Procedures) Bill to Parliament as a matter of urgency. This Draft Bill will allow for DNA samples to continue to be taken from offenders convicted in terms of Schedule 8 of the Criminal Procedure Act, which includes sexual offenders. This would ensure that SAPS is able to speedily identify any repeat offences should these individuals be released back into society. There are currently no DNA samples recorded for over 46 000 convicted Schedule 8 offenders.

The DA however further believe that the elimination of gender-based violence from our society must start with ourselves and at home. We hope that by restoring the sanctity of the home, we can lay the groundwork for eliminating violence and the general abuse of women from other domains of South African life.

It is for this reason, but also because it is often the case that women and children are harmed in their own homes by those they love and trust the most, that we want to introduce legislative reforms to specifically address the occurrence of domestic abuse.

We want to propose replacing the Domestic Violence Act (which will turn twenty years old this year and is due for an overhaul) and the Protection from Harassment Act with a brand-new holistic piece of legislation that is better suited to protect victims of inter-personal and domestic abuse.

We intend to introduce a private member’s bill that will strengthen the powers granted to courts and the SAPS to provide essential safeguards and make sure that the rights of the society’s most vulnerable are protected. Our private members bill will address legislative gaps and shortfalls; and will have due regard to innovative measures introduced in other countries, where such measures have a proven track record of success and can be adapted for the South African context.

Nine key proposals include:

1. Changing the terminology that is used in the legislation to make it more inclusive – for example changing “domestic violence” to “domestic abuse.” This recognises that not all abuse are violent and that the threshold for receiving protection does not in fact require an act of physical violence to have taken place;

2. Drafting the substantive chapters of the Bill in plain English (non-legal English) to make the Bill more accessible. Ordinary South Africans that do not have legal qualifications must be able to read the legislation and understand their rights and the process that they should follow to obtain protection, without first needing to consult with a lawyer at great expense. Although the plain English movement has had support in the South African legal sector for years, it has not yet resulted in legislation being drafted in plain English and we hope that this Bill can set a precedent in that regard;

3. Providing for a single, defined process of applying for and obtaining an order from the courts protecting against various forms of inter-personal and domestic abuse, that may include acts of bullying or stalking;

4. Ensuring the speedy service and enforcement of protection orders through alternative means, in order to ensure that victims are immediately provided protection after a protection order is granted. This is to avoid lengthy delays that often result from backlogs and the lack of capacity at South African Police Service (SAPS) stations;

5. Directing the Minister to issue Rules that guide the process to be followed by the court, including burden of proof and leading of evidence. Currently, there are many grey areas as far as the court procedure is concerned, and this has resulted in inconsistent application across different courts and provinces, and between different presiding officers;

6. Ensuring that court staff dealing with matters of domestic abuse are properly trained and that experienced, and legally trained court officials, are made available to assist parties in a case, particularly where one or both the parties are not legally represented, in order to ensure that nobody’s rights are unduly infringed on;

7. Placing a duty on all legal practitioners to act as a point of first contact for a victim of abuse by advising them on their basic rights and remedies without charging for this consultation;

8. Creating a central online register of domestic violence court orders and applications to ensure that a court in one city or town can easily access an order granted by a court in a different city or town; and

9. Creating specific offences for those who fail to assist victims of domestic abuse in accordance with the duties placed on them by the Act, such as police officers or court officials. This will see negligence in the execution of duty have serious consequences as a breach of the trust placed in public officials by the most vulnerable in our society.

There is of course no substitute for good policing, and this is something that government can make work of right away. Policing in South Africa needs to return to basics. We need to ensure that there are adequate rape kits so that DNA samples of offenders can be taken; that the front-of-house police officers are trained to deal with sexual offence cases in a professional and sensitive manner and that they are equipped with the necessary victim friendly rooms to interview sexual offence survivors in. We also need to increase the number of detectives that are able to investigate sexual offences and bring the perpetrators to book.

The DA intend to have a first draft of this Bill ready before the end of this year. We implore both government, especially the Department of Justice, and Parliament to stand with us and provide us with their cooperation in this matter.

To this end, the DA will also be writing to the Speaker in terms of Rule 216 of the Joint Rules of Parliament to fast-track the processing of this legislation as soon as it is ready to be introduced. This will enable the Joint Programme Committee to dispense with any joint rules that may impede prompt passage of the Bill and shorten time periods relating to legislative processes surrounding the Bill.

The DA believes that government has shown inaction for too long, and that public sentiment on the issue has now reached a boiling point.

We must act now. Enough is enough.

Issued by John Steenhuisen, Chief Whip of the Official Opposition, 17 September 2019