PORTFOLIO COMMITTEE ON JUSTICE: SUMMARY OF SUBMISSIONS ON THE DOMESTIC VIOLENCE BILL [B 75 - 98]

preamble
Focus on Elder Abuse (DOM 5)
South Africa supports the United Nations Declaration on the Rights of the Elderly (Resolution No 46/91). The elderly should be included in the third paragraph of the preamble.

National Association of Democratic Lawyers
Insert in Preamble "that the training of all police and judicial personnel in the procedures and enforcement of this Act is expected".

clause 1 - definitions
Black Sash (DOM 10)
The definition of "domestic violence" is not too wide. If verbal abuse can be suppressed at an early stage, physical violence could be prevented.

Cape Law Society (DOM 9)
"Sexual relationship of any duration" in paragraph (f) of the definition of "domestic relationship" should be more closely defined.

The definition of "domestic violence" should be extended to include threatening violence and the brandishing of a firearm.

Delete the words "any or all" in paragraph (a) of the definition of "economic abuse". There is a concern that provisions dealing with economic abuse will cause the Family Court to become clogged.

Commission on Gender Equality (DOM 19)
Clause 1(vi)(d) should be extended by including a reference to "clan, name and kinship". The definition of "shared household" should include family members in an extended family.

Focus on Elder Abuse (DOM 5)
The following phrase should be added to the definition of "intimidation":
". . . including, in the case of an elderly person, manoeuvres on the part of the respondent which are calculated to force that person to comply with the respondentís requests or alter his or her behaviour to fit into ways that suit the respondent".

Gender Advocacy Programme (Dom 11)
The definition of "domestic violence" should also include that a single act may amount to domestic violence and that a single act, no matter how trivial, when part of a pattern of conduct, may similarly amount to domestic violence. Clause 6(8) should therefore be included in the definition of domestic violence.

Law Society of South Africa (DOM 8)
Add the following to the definition of domestic violence:
"Refusal of access, either direct or indirect to the home without an appropriate court order".

National Association of Democratic Lawyers
Clause 1(vi)(d) should be extended to include clan, kin and extended family relationship under customary law.

The definitions of "applicant" and "respondent" should include persons who are not South African citizens but reside in the Republic.

The definition of "emergency monetary relief" as regards medical expenses should include costs for transportation and medical services should include crisis counselling.

NICRO Western Cape (DOM 7)
Paragraph (b) of the definition of emergency monetary relief should include counselling, psychological and psychiatric expenses. Transport costs should also be included. In addition to emergency relief, further provision needs to be made for monetary compensation of the applicant which is not limited to the period of the interim order.

The words "a pattern of" should be deleted in the definition of "harassment". Harassment may only occur once or twice but cause severe harm. In paragraph (b) of the definition the phrase "or a person connected with the applicant in order to cause harm" should be inserted after the word "applicant" This would include calls to family, friends and the applicantís place of work with the intention of causing trouble.

In the definition of "emotional, verbal and psychological abuse" the words "a pattern of" should be included before "degrading or humiliating conduct". In this way a single incident of name calling or an insult will not on its own be sufficient to warrant the granting of a protection order.

In the definition of physical abuse the word "physical" should be inserted before "assault" as the latter is defined more broadly than physical assault.

In the definition of "sexual abuse" the words "is unwanted" should be inserted after "any sexual conduct that".

The definition of "shared household" should include households governed by customary law so as to include extended families or clans living in proximity to one another but not in the same dwelling. The inclusion of a definition of "household" is also recommended.

Rape Crisis (Cape Town), Women & Human Rights Project (Community Law Centre UWC), Institute of Criminology (UCT) (DOM 14)
The concept of "affinity" employed in paragraph (d) of the definition of "domestic relationship" may not be broad enough to encompass the extended family relationships created by customary marriages. Paragraph (d) should be amplified to accommodate extended family relationships under customary law.

It is important to provide further guidance as to whether single acts or threats may amount to domestic violence as conceptualised under the Bill. The definition of "domestic violence" should expressly provide that a single act or threat may amount to domestic violence. A number of acts or threats, which may appear to be minor or trivial when viewed in isolation, may similarly amount to domestic violence.

The definition of "emergency monetary relief" should also refer to psychological and/or psychiatric expenses (trauma counselling). "Moving and accommodation expenses" in paragraph (c) of the definition should be amplified to expressly include travelling expenses. The clause should also be expanded to include both monetary losses and expenses incurred.

The definitions of harassment and stalking are too limited and should be amended accordingly.

SA Human Rights Commission (DOM 17)
The reference to "medical expenses" in the definition of "emergency monetary relief" should include payment for psychological assistance.

SA National Council for Child and Family Welfare (DOM 10a)
Define "dangerous weapon", "peace officer" and "sheriff" as not everyone has access to the Acts referred to in the present definitions.

SA National Council for Child and Family Welfare (DOM 10a - Addendum)
"Rape" and "child molestation" should be included in the definition of "domestic violence" and be defined as follows:
"Child molestation": Forcing a child to participate in some sexual activity which can include rape, incest, erotic fondling or compelling the child to behave in a way that erotically stimulates the perpetrator.

"Rape": The criminal act of forcing a non-consenting person/child to engage in some form of sexual contact. The force may include violence assault or real or implied threat. Rape also occurs by someone known or related to the victim.

The Campus Law Clinic, University of Natal - Durban (DOM 6)
To prevent an opening of the floodgates under paragraph (g) of the definition of "domestic relationship", it should be stipulated that only those persons having an emotional connection to one another would be covered.

clause 2 - duty to inform victim and applicant of rights
Black Sash (DOM 10)
Accredited traditional leaders should also be empowered to inform victims of their rights.

The explanation is too lengthy and simple language is recommended.

Commission on Gender Equality (DOM 19)
Insert a clause 2(1)(c) as follows:
"if the victimís language of choice is a language other than an official language of the Republic, arrangements have to be made for a translated copy of the explanation to be made available in a language the victim understands".

Cape Law Society (DOM 9)
Clause 2(1)(a) should be substantially abbreviated.

Ikamva Labantu (DOM 4)
Clause 2(1)(b) should ensure that a braille copy be made available for blind and visually impaired persons.

National Association of Democratic Lawyers
Substitute the word "complainant" for the word "victim" in clause 2(1)(b).

Where the applicant cannot read or write, it must be ensured that verbal explanations are completely understood and a copy of the explanation must be in a language that a person assisting the applicant can understand. Copies of the explanation for the blind should be in braille. For the deaf, information should be given with the assistance of a person who knows sign language. For persons who do not speak any of the Republicís official languages, attempts have to be made to provide information in a language they understand.

Rape Crisis (Cape Town), Women & Human Rights Project (Community Law Centre UWC), Institute of Criminology (UCT) (DOM 14)
Although the inclusion of information to be conveyed to the victim in the body of legislation may appear unusual in the South African context, it is important to note that the present clause clearly sets out all information usually required by victims of domestic violence, thus facilitating the task of the SAPS member. It should also be noted that this formulation is commonly employed in other jurisdictions, for example, in New York State and Michigan State legislation. This formulation should therefore be retained in the legislation.

However, the positive duty to inform the victim of her rights is imposed on the SAPS member only at the scene of an incident of domestic violence, or when the incident of domestic violence is reported. This, in effect, excludes situations where a SAPS member may be informed of an incident of domestic violence (by the victim or a third party). In this situation no positive duty rests on the member to inform the victim of her rights. This positive duty should extend to all situations where a SAPS member has knowledge, for whatever reason or from whatever source, of an incident of domestic violence.

In addition, the rights of the victim are restricted to a right to request assistance from a SAPS member, for example, in locating a place of safety, but there is no positive duty on the member to actually provide the required assistance. A positive duty should be imposed on SAPS members to provide assistance to victims in a number of ways, for example, in locating and taking the victim and her children to a place of safety and in obtaining medical treatment.

SA Human Rights Commission (DOM 17)
When being advised of his or her rights, the SAPS should encourage applicants to lay criminal charges where appropriate.

Southern African Catholic Bishopsí Conference (DOM 12)
A shorter and simpler formulation in respect of clause 2(1)(a) is suggested. [See DOM 12 par 4] It would be helpful if SAPS members were able to provide names and contact details of counselling or support organisations.

The Campus Law Clinic, University of Natal - Durban (DOM 6)
The legislation should state that the police use the language of the victimís choice in informing him/her of the rights. This would be particularly required in situations where the victim is illiterate.

Tshwaranang Legal Advocacy Centre (DOM 18)
Duties of the SAPS members are limited to informing the victim of her rights and there is no positive duty to assist the victim. There should be a duty to accede to the victimís request for assistance to locate and take the victim and her children to a place of safety and to obtain medical treatment.

clause 3 - arrest by peace officer without warrant
Black Sash (DOM 10)
Any member of the community at the scene of domestic violence should be given arrest powers.

Commission on Gender Equality (DOM 19)
The police must be protected from action taken against perpetrators of domestic violence. Immunity must be granted to police officials where an arrest turns out to be unlawful, unless the arrest was executed mala fide. The onus of proof should rest on the person alleging mala fides.

Rape Crisis (Cape Town), Women & Human Rights Project (Community Law Centre UWC), Institute of Criminology (UCT) (DOM 14)
The majority of domestic violence incidents are classified as "common assault". This implies that presently a SAPS member would only be able to arrest the perpetrator if the offence is committed in his/her presence, or if warrant has been issued. Clause 3 is therefore welcomed, but there is concern that this power can only be exercised "at the scene of an incident of domestic violence". The clause should include a power of arrest upon report of a domestic violence offence.

SA Human Rights Commission (DOM 17)
Given that an arrest without a warrant is a serious measure, the circumstances in which this may take place must be set out very clearly. Consideration should be given to the introduction of a definition of offences giving rise to an arrest without a warrant, or alternatively to listing the offences in a Schedule to the Bill.

clause 4 - application for protection order
Black Sash (DOM 10)
The procedure to apply for a protection order should include the traditional way of getting protection. There is a problem of accessibility to magistratesí courts. There should be a clause empowering an accredit appointee of the traditional leader in the village to issue a "traditional protection order".

At present a spoliation order can be obtained ex parte. What is appropriate for property should also be appropriate for wives, women and children.

Cape Law Society (DOM 9)
Where no notice of an application for a protection order is given to the respondent, the applicant should give reasons why such notice would defeat the order (clause 4(3)).

Commission on Gender Equality (DOM 19)
A time limit of seven days must be stipulated in clause 4(9) in order to avoid a delay of the proceedings by clerks of the court.

Focus on Elder Abuse (DOM 5)
The following subparagraph should be included in clause 4(4):

"showing diminution of intellectual capacity accompanying ageing, including but not limited to dementia of the elderly"
The following phrase should be added to clause 4(4)(d):
". . . including over-medication of an aged person"

Gender Advocacy Programme (DOM 11)
The procedure in clause 4(6) should be spelt out so that the SAPS and judicial officers are clear about what is expected of them.

Law Society of South Africa (DOM 8)
Clause 4(4) should refer to an applicant who is unable to give consent due to injury or other medical factors.

National Association of Democratic Lawyers
The omission of the applicantís address in clause 4(8) should be mandatory.

NICRO Western Cape (DOM 7)
Clause 4(6) should include details of how to go about making an application for a protection order after ordinary court hours.

Rape Crisis (Cape Town), Women & Human Rights Project (Community Law Centre UWC), Institute of Criminology (UCT) (DOM 14)
Clause 4(2) enjoins the clerk of the court to inform the applicant of the relief available in terms of the Act. A duty should also be placed on the clerk of the court to assist the applicant to fill in the forms and depose to an affidavit. The Minnesota Domestic Abuse Act, for example, provides that "the court shall provide simplified forms and clerical assistance to help with the writing and filling of a petition". A subsection should be added which tasks the clerk of the court with assisting applicants in the application for a protection order.

It is not clear how the requirement in clause 4(4) of "a material interest in the wellbeing of the applicant" should be interpreted, especially in cases where the consent of the applicant will not be required.

With regard to clause 4(6) the clerk of the court should be tasked with making information on the 24-hour service available to local police stations and service providing organisations.

The omission of the applicantís address from the protection order in terms of clause 4(8) should ensue as a matter of course, unless the nature of the order necessitates its inclusion.

SA Human Rights Commission (DOM 17)
Provision should be made for assistance to an applicant, either by the clerk of the court, or a domestic violence officer.

"Material interest" in clause 4(4) should be defined.

Substitute "immediately" for "forthwith" in clause 4(9).

The applicant should be advised of the possibility of oral evidence in clause 4(10)(a), especially if relevant witnesses are present at court.

SA National Council for Child and Family Welfare (DOM 10a)
The problem of physical accessibility in areas where there are no local magistratesí courts or police stations has to be addressed.

The Campus Law Clinic, University of Natal - Durban (DOM 6)
Clause 4(6) refers to applications brought outside ordinary court hours. There is concern over the lack of clarity regarding the role of the police and justice officials in respect of urgent situations as well as the procedure for after-hours applications.

Tshwaranang Legal Advocacy Centre (DOM 18)
Clause 4(2) (and clause 2(3)) sets out duties of the clerk of the court. The clerk of the courtís duty to assist the applicant fill in the application form, depose to affidavits and to assist her with other clerical matters incidental to the application should be expressly set out.

Women from the town of Genadendal (DOM 13)
Courts are inaccessible because women do not have the means to travel.

clause 5 - power to grant interim protection order
Cape Law Society (DOM 9)
The phrase "or is likely to commit" should be inserted in clause 5(1).

Ex parte applications for interim protection orders should only be granted on good cause shown and where there is a fear of imminent harm, danger or severe prejudice. Economic relief should not be sought on an ex parte basis.

The respondent should be made aware of the fact that this is not a final order.

Commission on Gender Equality (DOM 19)
The procedure of an interim order and a return date reinforces rather than diffuses the unequal power relationship between victim and perpetrator as the latter is given the opportunity, time and place at which he/she knows that there will be access to the victim. It is maintained that the granting of a final order in the absence of the respondent is constitutionally justifiable.

NICRO Western Cape (DOM 7)
A clause similar to clause 10(12) should be introduced to ensure that a copy of the interim order is also forwarded to the police station of the applicantís choice.

Clause 5(4) should state a maximum time period for the return date.

Rape Crisis (Cape Town), Women & Human Rights Project (Community Law Centre UWC), Institute of Criminology (UCT) (DOM 14)
The approach followed in the Bill, which allows for the granting of an ex parte protection order without notice to the respondent is supported. No express allegation of urgency or "imminent harm" is required. This provisional protection order in effect constitutes a rule nisi, and includes a return date upon which the respondent may appear to contest the confirmation of the order.

Tshwaranang Legal Advocacy Centre (DOM 18)
If the courtís power to grant an interim protection order violates the rules of natural justice and section 34 of the Constitution, such violation is reasonable and justified in terms of the limitation clause, considering -
* the victimís entrenched constitutional rights to equal protection or the law, human dignity and freedom and security of the person;
* that the order is not final and that there is a return day on which the respondent will be heard;
* that the respondent can anticipate the return day on 24 hoursí notice;
* that if the applicant obtained the interim protection order based on incorrect facts, she can be charged with perjury.

clause 6 - terms of protection order
Cape Law Society (DOM 9)
It is not appropriate to consider matters relating to economic abuse (clause 6(4) - (5)) when the courts are seized with issues relating to physical abuse. Or else emergency monetary relief should be granted by way of an interim order only.

Clause 6(6) is a duplication of the definition of "emergency monetary relief". This definition should be extended to provide for educational expenses and clause 6(6) should be deleted.

Insert "only" after "basis" in clause 6(8).

Commission on Gender Equality (DOM 19)
The proviso in clause 6(1)(c) is problematic in that no test has been provided to determine what are the applicantís best interests. In the absence of training, magistrates should be given less rather than more discretionary powers. Wherever it is stated that the court "may order" it is suggested that the court "shall order".

Emergency monetary relief in clause 6(5) read with the definition of "emergency monetary relief" should extend to the applicantís immediate family. "Immediate family" should be defined as "any adult, child, parent, grandparent, grandchild or sibling of the applicant who is wholly or substantially financially dependent on the applicant".

Focus on Elder Abuse (DOM 5)
In the case of an institution it may be necessary to prevent the respondent from nursing or being directly involved in the care of a disabled or elderly person.

Clause 6(7)(a) and (b) should also refer to an "elderly person".

Michael Horton (DOM 16)
Clause 6(1)(c) attempts to provide an extra criterion for the grant of orders which interfere with property rights. However, the restriction of "in the best interests of the applicant or any child" is no restriction. It will almost always be in the best interests of the applicant to get rid of someone out of the house who she does not want to be there.

"Structured contact" in clause 6(7)(b) is not clear.

National Association of Democratic Lawyers
Guidelines should be provided to assist presiding officers to determine what is in the best interests of the applicant or a child in terms of the proviso to clause 6(1)(c).

Rape Crisis (Cape Town), Women & Human Rights Project (Community Law Centre UWC), Institute of Criminology (UCT) (DOM 14)
The "best interest" requirement in clause 6(1)(c) should be deleted, since it imposes an additional burden on the applicant and could exacerbate existing reluctance on the part of magistrates to include such a term in the order. It could also lead to unnecessary and protracted legal argument about the meaning and extent of the term.

Clause 6(2) should be extended to encompass the notion of "health, safety and wellbeing of the applicant". The present formulation regarding the supervision of collection of personal property does not adequately clarify the role of the peace officer and should be amplified.

There is concern about the enforcement of an order for emergency monetary relief in terms of clause 6(5). Although the Bill provides that it is a criminal offence to contravene the terms of a protection order, this may ultimately not assist the applicant in obtaining payment. The order for emergency monetary relief should have the effect of a civil judgment. In addition, Form 1 of the Schedule does not provide a space for the applicant to detail what emergency monetary relief is required and does not indicate that vouchers or other documents should be attached to prove the expenditure or anticipated expenditure.

Clause 6(6) does not appear to adequately reflect its objective of ensuring that the respondent be held liable for economic loss or additional expenses which the applicant may be forced to incur due to the respondentís actions.

Although the notion of "structured contact"in clause 6(7) is endorsed, it should be defined and expressly provided how structured contact should operate.

SA Human Rights Commission (DOM 17)
The elderly and disabled are referred to in the preamble. Consideration should be given to the inclusion of references to the elderly and disabled in the terms of the protection order.

Clarity is needed regarding the execution of orders for emergency monetary relief in clause 6(5). Will it have the effect of a civil judgement for purposes of recovery?

Define "structured contact" in clause 6(7) or employ the more common description of "supervised access" used by the High Court and Family Advocates.

South African Council of Churches (DOM 15)
Clause 6(6) is restricted to educational expenses resulting from abuse. It is equally appropriate for a respondent to assist with ordinary educational expenses.

The Campus Law Clinic, University of Natal - Durban (DOM 6)
While clause 6(2) is laudable as regards the supervision of the collection of personal property, it could in the event that the respondent enforces his possessory rights (spoliation application) amount to a further victimization of the applicant.

Clause 6(4) may be open to abuse by a unscrupulous applicant. Further difficulties may arise where a maintenance order is already in existence.

Clause 6(7)(a) is endorsed in respect of interim orders, but the finalisation of such an order in the absence of assistance from an outside agency such as Social Welfare or the Family Advocate should be avoided.

Tshwaranang Legal Advocacy Centre (DOM 18)
There are no sufficient mechanisms for the enforcement of clause 6(5). The order for emergency monetary relief should have the effect of a civil judgment.

clause 7 - seizure of arms and dangerous weapons
Commission on Gender Equality (DOM 19)
The powers of the court should be couched in peremptory language.

NICRO Western Cape (DOM 7)
Clause 7(1) should not give a discretion to the court.

Rape Crisis (Cape Town), Women & Human Rights Project (Community Law Centre UWC), Institute of Criminology (UCT) (DOM 14)
The clause allows a court a discretion in ordering the seizure of the arm from the respondent and does not direct the court to order the seizure when the arm has been used, or the respondent has expressed an intention to use the arm to commit further violence. Moreover, an onus is placed on the applicant to furnish the court with reasons as to why the respondentís arm should be seized. The additional factual enquiries could lead to delay, or ultimately frustrate the relief which the applicant may be entitled to. There is also concern that the clause omits mention of cultural weapons.

Southern African Catholic Bishopsí Conference (DOM 12)
The court should be required to order the seizure of arms or weapons until such time as the court is satisfied that the respondentís possession thereof poses no reasonably foreseeable threat.

clause 8 - service of documents
Cape Law Society (DOM 9)
The person serving an interim order on a respondent should be required to advise the respondent, in particular, of the right to anticipate the return date of the order.

Clause 8(2) should clearly stipulate which department is to be liable for the cost of serving documents.

Commission on Gender Equality (DOM 19)
Time frames should be provided for the service of documents.

Law Society of South Africa (DOM 8)
Include the maintenance investigator as envisaged in the new Maintenance Act for the service of process.

NICRO Western Cape (DOM 7)
Clause 8(1) should spell out a time frame within which the documents must be delivered to the respondent as well as whose responsibility it is to ensure that the documents are delivered. Waiting days for delivery is unacceptable if the protection order is meant to effect emergency protection.

Rape Crisis (Cape Town), Women & Human Rights Project (Community Law Centre UWC), Institute of Criminology (UCT) (DOM 14)
The addition of peace officers and the clerk of the court as service agents is welcomed. There is, however, concern that the following matters have not adequately been addressed:

* No distinction is drawn between service of the interim protection order on the respondent and service of further affidavits. The clerk of the court, the sheriff and the police are all empowered to serve any of the aforementioned documents. In order to eliminate delays in service, a distinction between service of the provisional protection order and other documents requiring service should be drawn.

* If all the service agents are empowered to serve all the different types of documents, the various agents may refuse to serve the documents on the basis that it could be done by one of the other service agents.

* A form of substituted service analogous to the mechanism in the Magistratesí Courts Rules should be considered in appropriate cases, given the fact that respondents are notoriously successful in evading service.

SA Human Rights Commission (DOM 17)
The protection order is only valid from the time of service. Hence the time within which the service should be effected should be stipulated as ". . . immediately, and in any event in not less than 24 hours".

Tshwaranang Legal Advocacy Centre (DOM 18)
The duty of each agent regarding service should be fully set out. The duty of the clerk of the court should be confined to the court building. Only the sheriff and peace officer should serve documents outside the court.

Proof of service is material to the procedure outlined in the Bill. The question of what constitutes proof of service for each service agent should be amplified. Where the serving agent is not the clerk of the court, proof should be lodged with the clerk of the court as soon as service has been effected.

clause 9 - validity of interim protection order
Attorney-General: Eastern Cape (DOM 1)
In terms of clause 4(8) the applicant may request that her physical address be omitted from the protection order. Clause 9(2) will frustrate the purpose of clause 4(8), since Form 1 provides for the applicantís address. Clause 9(2) must be amended to provide for the situation where the address of an applicant is to be protected from disclosure.

Cape Law Society (DOM 9)
Insert the phrase "or in such other manner as the court may direct" in clause 9(1). There may be evidence of a respondentís efforts to avoid service.

Substitute "furnish" for "serve" in clause 9(3).

clause 10 - power to grant final protection order
Cape Law Society (DOM 9)
A final protection order should not be granted unless there was personal service on the respondent or unless the court is satisfied that the respondent had knowledge of the likelihood of such order being granted.

Substitute "may" for "shall" in clause 10(1).

Substitute "may" for "must" in clause 10(3) - the respondent may elect not to file an answering affidavit.

In clause 10(5) the applicant should be required to file a replying affidavit not less than three days prior to the hearing to afford the respondent an opportunity to consider the content thereof.

The lodging of an appeal should not suspend execution of the warrant (clause 10(13)).

Child Abuse Therapeutic and Training Services (DOM 3a)
The following clause is recommended:
"Once a final order is granted the respondent shall attend a mandatory rehabilitation program, at his own expense, for a period of at least six months and not exceeding 12 months. This rehabilitation program should have the prevention of further intimate violence as a primary focus".

Commission on Gender Equality (DOM 19)
Clause 10 outlines an elaborate and cumbersome procedure and it does not take into account the social and economic dimensions of victims of domestic violence who are in most cases rural working class women from under-resourced areas. The legislation should ensure that it can be easily implemented by women who do not have access to education, employment, telecommunication systems, transport and the courts.

FAMSA Western Cape (DOM 3)
Mandatory counselling for respondents should be incorporated in the final protection order.

Law Society of South Africa (DOM 8)
In clause 10(4) the respondentís answering affidavit should be served on the applicant as well as the clerk of the court and also have an address for service of the applicantís answering affidavit as envisaged in clause 10(6).

Rape Crisis (Cape Town), Women & Human Rights Project (Community Law Centre UWC), Institute of Criminology (UCT) (DOM 14)
There is concern that the procedure to be followed where a respondent indicates that he wishes to oppose the confirmation of the provisional protection order will prove to be impractical. The proposed procedure is unnecessarily complex with various areas of potential breakdown. An alternative mechanism is proposed in the comprehensive document.

SA Human Rights Commission (DOM 17)
Consideration should be given to a system of immediate finalisation of opposed matters by way or oral evidence, rather than on papers, incorporating the role of a domestic violence officer.

The Campus Law Clinic, University of Natal - Durban (DOM 6)
Clause 10(9) presupposes that both parties will cooperate in finding a suitable date for the hearing of the matter. The phrase "within a reasonable time" should be substituted for "a date that is suitable to both parties".

Zehir Omar attorneys (DOM 2)
In terms of clause 10(13) a final order remains in force unless it is set aside. The protection order should be given a short life span by lapsing after, perhaps, six months. If after six months it appears that the reason for obtaining the interdict is still in existence, a new interdict can be pursued.

clause 11 - warrant of arrest and procedure upon arrest of respondent
Attorney-General: Eastern Cape (DOM 1)
Substitute the words "be dealt with as a criminal charge" for the introductory part of clause 11(6)(c). The present wording may lead to a conclusion that all matters shall, as a matter of course, be prosecuted. A final decision should, as a matter of principle, be left with the prosecuting authority.

Cape Law Society (DOM 9)
In clause 11(3) insert the phrase "if there is prima facie evidence of contravention of any of the terms of the protection order" after "Any member of the SAPS must . . . (a) execute . . . ; or (b) arrest . . ."

Insert the phrase "or where the warrant is unavailable" in clause 11(4)(b).

Gender Advocacy Programme (DOM 11)
The exclusion of discretion of the SAPS in clause 11(3) is commended and will alleviate many of the problems which victims have encountered with the SAPS.

Rape Crisis (Cape Town), Women & Human Rights Project (Community Law Centre UWC), Institute of Criminology (UCT) (DOM 14)
The Bill proposes that there should be no such discretion Ė the police, when presented with the warrant and an affidavit, must arrest the respondent. This may prove to be a contentious provision: a perception may exist that this process could be unduly prejudicial to a perpetrator where an ex parte interim protection order has been issued, and the applicant alleges a breach of the order prior to the return date. This raises the hypothetical possibility of a respondent who has not yet been given the opportunity of any hearing languishing in custody (for a period up to 48 hours) based on untested allegations by the applicant.

* It is not clear how the discretion under the present Act should be exercised (i.e. what the basis for the decision whether or not to arrest should be).

* Since a warrant of arrest is a document which orders the person named therein be arrested by a peace officer, there can be no discretion to arrest after a warrant has been issued. Section 43(2) of the Criminal Procedure Act, for example, provides that "[a] warrant of arrest issued under this section shall direct that the person described in the warrant shall be arrested by a peace officer in respect of the offence set out in the warrant..."

It is therefore clear that a warrant of arrest by definition orders or directs a peace
officer to arrest the person in question; a discretion to arrest where a warrant has been issued is inimical to the very nature of the document.

* It should be noted that peace officers are granted authority to arrest suspects without a warrant of arrest where there is a reasonable suspicion that the suspect has committed an offence listed in Schedule 1 of the Criminal Procedure Act.

The following is proposed:

* The implicit Ďthreshold testí (i.e. that the police official must be satisfied that the affidavit in fact alleges a breach of the order) should be stated more clearly in clause11(3).

* A distinction may be made between provisional and final orders. In the case of a final order, the provision should remain as it stands; where a provisional order has been issued, but the return date has not yet passed when the breach is alleged, it should be stipulated that the respondent should be brought before court within the shorter period of 24 hours.

The following formulation is recommended:

"11(3): Any member of the South African Police Service must, if satisfied that the respondent has breached a prohibition, condition, obligation or order imposed in terms of section 6 -
(a) execute a warrant of arrest ... or;
(b) arrest the respondent ...

11(6)(b): A respondent arrested in terms of subsection (3) shall be brought before a court as soon as reasonably possible, but not later than -
(i) 24 hours after the arrest in the event of alleged breach of an interim protection order issued in terms of section 5; or
(ii) 48 hours after the arrest in the event of alleged breach of a final protection order issued in terms of section 10; or
(iii) the end of the first court day after the expiry of the period contemplated under ss (i) or (ii), if this period expires outside ordinary court hours or on a day which is not an ordinary court day..."

Clause 11(3)(b)(iii) and (4)(b) refers to a warrant of arrest which has been lost or destroyed. The provisions should be amended to incorporate situations where the original warrant is unavailable for reasons other than being lost or destroyed, for example, where it is in the possession of the perpetrator.

SA Human Rights Commission (DOM 17)
The retention of clause 11 is necessary in order to provide substantive protection in terms of the Bill. If this is not acceptable, it could be provided that an arrest in terms of an interim order be followed by a hearing immediately or as soon as possible for consideration of the final order. Alternatively, consideration could be given to the inclusion of an element of actual or imminent harm for the warrant of arrest to be triggered before the order is made final. A similar route would be to refer to the formulation of "element of violence" or preferably a schedule of offences, the commission of which could potentially trigger the warrant.

clause 12 - amendment or setting aside of final protection order by applicant
NICRO Western Cape (DOM 7)
The wording should be strengthened to ensure that the applicant was under no duress or threat when making the application.

Rape Crisis (Cape Town), Women & Human Rights Project (Community Law Centre UWC), Institute of Criminology (UCT) (DOM 14)
Where the original application was made on behalf of the applicant, or where the application was accompanied by supporting affidavits, the application for amendment or setting aside should similarly be accompanied by corresponding affidavits attesting to the fact that the application is made freely and voluntarily.

The Campus Law Clinic, University of Natal - Durban (DOM 6)
It is imperative that the police have notification of amendments or setting aside of protection orders. The phrase "and the police" should be inserted in clause 12(2).

clause 13 - jurisdiction
NO SUGGESTIONS

clause 14 - obligation to report ill-treatment of children
Focus on Elder Abuse (DOM 5)
Mandatory reporting of elder abuse should be addressed.

SA Human Rights Commission (DOM 17)
The obligation to report the ill-treatment of children should be retained and made consonant with the provisions of the Child Care Act.

SA National Council for Child and Family Welfare (DOM 10a - Addendum)
Amend heading to read: "Obligation to report ill-treatment, child molestation and child abuse including rape"

In clause 14(1) insert the phrase "including a member of a family, or any person residing with the family" after "teacher" in the second line.

The Campus Law Clinic, University of Natal - Durban (DOM 6)
Clarification is required regarding the action to be taken by a peace officer on receiving a complaint.

clause 15 - rape of wife by her husband
Rape Crisis (Cape Town), Women & Human Rights Project (Community Law Centre UWC), Institute of Criminology (UCT) (DOM 14)
The clause should be retained in order to avoid reversion to the common law position until legislation dealing with sexual assault is enacted.

clause 16 - proceedings in camera
Commission on Gender Equality (DOM 19)
Clause 16(2) detracts from the purpose and objectives of the provision. The following phrase should be added:
". . . provided that such specified persons shall have a material interest in the proceedings".

NICRO Western Cape (DOM 7)
Clause 16(2) should specify that the specified persons should be there in a supportive capacity. This request should not be refused to the applicant.

Rape Crisis (Cape Town), Women & Human Rights Project (Community Law Centre UWC), Institute of Criminology (UCT) (DOM 14)
The use of Latin is not in the spirit of plain language and can easily lead to confusion. "Closed proceedings" should be substituted for "in camera".

Section 16(2) does not set out any guidelines for the presiding officer in making the decision as to who may or may not be present at the proceedings. The respondent may therefore request the presence of his supporters in court which would serve to intimidate the victim. The clause should be formulated in a manner similar to sections 153 and 154 of the Criminal Procedure Act 51 of 1977.

clause 17 - legal representation
Commission on Gender Equality (DOM 19)
The following phrase should be added:
". . . which shall include the right to -
(a) be informed of this right promptly;
(b) choose a legal practitioner;
(c) have a legal practitioner assigned to the person by the State and at State expense if substantial injustice would otherwise result".

A means test should also be devised that will ensure that persons who are indigent at the time of application are able to receive economic assistance from the State.

National Association of Democratic Lawyers
State funded legal representation should be provided to victims.

Rape Crisis (Cape Town), Women & Human Rights Project (Community Law Centre UWC), Institute of Criminology (UCT) (DOM 14)
The majority of victims in domestic violence cases are women who are severely economically disadvantaged. Applicants should have the right to legal representation and the costs of such legal representation should be borne by the State.

SA National Council for Child and Family Welfare (DOM 10a)
Provision should be made for legal aid.

The Campus Law Clinic, University of Natal - Durban (DOM 6)
To protect the child applicant, clause 17 should provide that the child has an automatic right of legal representation, at State expense, in cases where the application is opposed.

Women from the town of Genadendal (DOM 13)
Legal aid should be included.

clause 18 - costs
Cape Law Society (DOM 9)
Presiding officers should have the discretion to grant appropriate costs orders on the highest Magistratesí Courts scale. Such order should include service costs.

NICRO Western Cape (DOM 7)
Just as the respondent may be ordered to pay emergency monetary relief, so the respondent should be made to pay costs if the protection order is granted.

Rape Crisis (Cape Town), Women & Human Rights Project (Community Law Centre UWC), Institute of Criminology (UCT) (DOM 14)
The exclusion of costs orders assists in perpetuating the unequal power relationship inherent in domestic violence by denying an applicant the right to recover costs which may have been incurred in obtaining the interim protection order, when such order is made final. The legislation should provide for an applicant to recover the costs incurred where a respondent has spuriously opposed the granting of a final order.

The court should also have the power to grant adverse costs orders against legal representatives of the applicant and/or the respondent who have recklessly and/or intentionally proceeded with the obtaining or opposition of a protection order in circumstances where it is clear on inquiry by the magistrate that the launching or opposition of the application constituted and abuse of the process of court. This will go some way to ensure that the real victims of domestic violence are afforded the protection they are entitled to and that they are not prevented from obtaining such relief by the financial exploitation of the legal system.

clause 19 - appeal and review
NO SUGGESTIONS

clause 20 - offences and penalties
Cape Law Society (DOM 9)
Penalties which can be imposed on members of the SAPS are likely to cause them to be unwilling to assist in domestic violence matters.

Commission on Gender Equality (DOM 19)
Penalties provided for are too lenient. The maximum period of imprisonment should be increased to at least ten years.

NICRO Western Cape (DOM 7)
A wider range of sentencing options is recommended.

Rape Crisis (Cape Town), Women & Human Rights Project (Community Law Centre UWC), Institute of Criminology (UCT) (DOM 14)
The criminalisation of dereliction of duty by state agents is supported but higher penalties should be provided for.

SA National Council for Child and Family Welfare (DOM 10a - Addendum)
Sentence should not be a maximum of five years, but in accordance with the seriousness of the crime committed.

clause 21 - repeal of laws and savings
NO SUGGESTIONS

clause 22 - short title and commencement
NO SUGGESTIONS

miscellaneous
Black Sash (DOM 10)
There is concern that the Bill does not address the problem of domestic violence from the traditional perspective. Three ways are identified to deal with the discrepancy. [See DOM 10, page 1]

National Association of Democratic Lawyers
Amend the Criminal Procedure Act to list domestic violence as a distinct offence.

SA Human Rights Commission (DOM 17)
The creation of a position of domestic violence officer is recommended. The role and functions of such officer are set out in DOM 17, page 6.

SA National Council for Child and Family Welfare (DOM 10a)
It should be ensured that those who perpetrate violence have to attend voluntary counselling services.

Southern African Catholic Bishopsí Conference (DOM 12)
The names of those against whom final protection orders have been issued should be entered into a data-base.

Womenís Health Research Unit, UCT (DOM 23)
The Unit supports the submission made by Rape Crisis (Cape Town), Women & Human Rights Project (Community Law Centre UWC), Institute of Criminology (UCT) (DOM 14).