SUMMARY OF GROUNDWORK AND FINDINGS OF THE SURVEY CONDUCTED BY THE CGE AT TWENTY MAGISTERIAL COURTS AND POLICE STATION FROM 2002 JANUARY UNTIL 2003
The Commission on Gender Equality (CGE) as a constitutional institution established to promote constitutional democracy has specific functions, powers and authority that relate to the promotion and development of gender equality as well as prevention of gender discrimination.
The CGE regards gender based violation as a threat to the advancement of the human rights of people, especially women whose progress in life is continuously retarded. What could have been accomplished with ease by huge a number of women from different spheres of life, over the years are being retarded due to the scourge of gender based violence. The following are other forms of violence that impact on womenís lives
The South African government has one of the most progressive constitutions in the world has passed one of the most excellent legislative. This legislation is a framework to address gender based violence within domestic relationships. If there was a will to properly implement the Act the scourge of gender based violence would have lessened by now.
As the world commemorates 16 days of activism against gender based violence. Growth and progress that South Africans at large could have made over the past ten years in advancement over all aspects of life is being compromised by the ineffectiveness and tardiness in the implementation of the Domestic Violence Act. This has been evidenced by media reports of violence against women in recent past.
The Commission on Gender Equality has received a huge number of complaints relating to the implementation of the Domestic Violence Act. Research conducted by different organisations as well as government departments indicate that, despite the fact that the DVA was promulgated more than five years ago, the scourge of gender violence is not decreasing. Instead women and children still experience abuse from men such their partners, spouses and male relatives. The abuse is spreading as though there is no improved legislative framework which has been put in place specifically to address this scourge.
Although the DVA imposes duties on the members of the SAPS and Judicial Services, the number of complaints brought to the attention of the CGE on the implementation of the Act shows that there is still a need to carefully evaluate and monitor the roles of each stakeholder as provided in the Act.
The CGE has also noted with concern the appalling decisions that are granted by courts in matters where women and children are complainants in gender based violence cases. Even though this may be as a result of ill prepared cases, there is a great concern that this excellent legislative framework is being deliberately weakened.
As a result of the ever increasing reports of such incidents where women and children suffer from gender based violence the CGE embarked on a survey to determine the veracity and enormity of the failure of the justice system. After the survey, consultative conferences were held and the following are some of the outcomes: -
Furthermore the survey and the consultative conferences were held where among others the purpose was to further explore the possibility of coming up with further evidence about the non-effectiveness or reluctance to implement the provisions of the law
The purpose of the investigation was to find out what was hampering the effective implementation of the Domestic Violence Act, no 116 of 1998 ("the DVA"). Some of the concerns to the CGE was that the DVA as a newly implemented legislation was expected and is supposed to deal with the short comings of the old Prevention of Family Violence Act. But the number of complaints that are brought to the attention of the CGE show that there is a problem with the implementation of provisions of the DVA. The complaints that CGE receive range from complaints about police not acting in cases of domestic violence even though the person had an interdict against the perpetrator, to courts not granting interdicts or giving interdicts where they should not do so.
The criteria that we used in selecting the magistrates courts was informed by facts such as, that there are courts where work had been done on DVA, e.g. Family courts, and there are districts which are always side lined (not deliberately) when it comes to research, monitoring or investigations despite there being a need for such.
So in each province the capital city (except Johannesburg) and another district that serves rural communities were selected. These are Bronkhorspruit and Alberton courts in Gauteng; Ga-Rankuwa and Mmabatho in North West; Polokwane and Mankweng in Limpopo; Nelspruit, Kabokweni and Mkobola in Mpumalanga; East London and Mdantsane in Eastern Cape; Bellville and Atlantis in Western Cape; Bloemfontein and Bothaville in Free State; Verulem and Umlazi in KwaZulu-Natal.
The investigation was conducted in phases. The first phase, consisted of informal meetings with key people that are tasked with the duty of service delivery by the DVA, such as the South African Police Service, Court officials like Magistrates, clerks and prosecutors; NGOs who work as volunteers in the courts and health and welfare. The second phase was questionnaires which all personnel, service providers as well as the public that uses the DVA courts had to answer.
After the interviews court records were examined. In some instances the CGE staff observed the interaction of personnel and community members during the provision of their services. The last phase that would be finalised before end of financial year would be revisiting the district courts that have been exposed by media to be resisting to improve service delivery in as far as this Act is concerned. The leaders of these envisaged meetings would be some of the CGE Commissioners whilst staff would scrutinise the records of the service providers.
The complainants of any crime rely on members of the SAPS for assistance. The CGE needed to establish if members are aware of this responsibility and how it is tackled. Where possible all members of the SAPS at the Community Service Centres that are charged with attending to complaints relating to Domestic Violence were interviewed. They were asked questions to determine:
The Station Commissioners were also interviewed to determine if they are implementing what is expected of them in accordance with the provisions of the Act and National Instructions. Amongst other things we wanted to determine if:
At some Police stations that have separate facilities for vulnerable complainants who need to be given special care the Victim Support Centre was visited with some of the members or the head of the station.
As the Clerks of the court are at the fore front when complainants approach the courts, the CGE needed to establish if they are trained whether they are able to provide information and can cope with the varying flow of complainants on DVA among other tasks that they have to attend to.
Questions that were asked were on
At some courts CGE staff sat in during interviews when complainants were interviewed by the clerks of the court to observe and get details on what information is transmitted between the clerk and complainants. Interviews with the Magistrates revolved around the relationship with the SAPS, other organisations and whether they can determine applications where parties are same but in different capacities.
4. 1. SAPS
It was established that most members of the SAPS have been trained on the DVA and all Stations have copies of the National Instructions. The forms that are required in applications for Protection orders are filed but hardly used. Instead complainants are sent to the court once they mention that they are involved in domestic violence disputes. This is in a sense confirms that although members of the SAPS are aware that DVA has to be attended to by them they still react in the same old fashion regarding domestic violence as something that has to be attended by other people.
The following were typical examples of responses to questions posed and what the CGE staff observed during the survey:-
4. 2. MAGISTRATES
All magistrates that were interviewed had undergone at least one training workshop offered by Justice College. They all have copies of necessary resources to implement the DVA. However there were inconsistent responses on how they carry out their responsibilities.
At all courts, the clerks play multiple roles daily. Such as assisting with maintenance claims, filling necessary paperwork for peace letters to assisting complainants with referral letters to other relevant institutions for non-jurisdiction matters. It was apparent that all of them are very dedicated to their work as most were not even trained on the DVA. The clerks should be commended as some never received any formal training expect what they read on their own with guidance from the selfless magistrates.
Although some inflated the amount of time spent on the work they do, as they locked their offices during breaks and complainants had to wait patiently and hope that they would not be turned away to return the following day.
In brief what was established was: -
4. 4 COMMUNITY POLICING FORUM
In Mmabatho CGE staff were afforded an opportunity to conduct interviews with members of the Community Policing Forum. They were asked questions relating to the implementation of the DVA in rural areas especially. From this it was established that:
As the survey has now been finalised, follow-ups would be made and reports with recommendations would be forwarded to the responsible authorities.
Examples that can be given here are that:
Violence against women occurs in all aspects of women's lives. It encompasses abuses of women's civil, cultural, economic, political and social rights. This broad understanding of violence against women as a human rights violation has moved advocacy groups and governments to transform and expand their work.
The scourge of violence against women and children is an indictment against all of us. It is indeed a major challenge to our new democratic order. Democracy is meaningless if society cannot provide a safe environment for its women and children. If indeed the legislation that has been put in place does not address this matter adequately then other policies should be put in place to deal with the inadequacies. As it is evident that there are weaknesses with implementing agencies, then mechanisms should be put in place to assist these officials to fulfil their mandate. Communities should avoid shying away from women and children victims instead they should rally around them. The CGE would like to encourage and support efforts to mobilise men to be part of the solution in this regard.
It is our ardent hope that this initiative will go a long way towards ensuring that the noble ideals identified in our constitution are enjoyed by all without reservation. We hope to see that day when violence against women and children will be a thing of the past. It is only through such innovative initiatives that we can look forward to such a future.