The Domestic Violence Act has been in operation since 15 Dec 1999. During the last 6 months, various problems have already been brought to the attention of the government departments responsible for implementing the Act.

Some of the major problems are caused by the huge financial implication the Act places on the responsible government departments. Hereby we refer specifically to shortages of staff and stationary due to sufficient funds available for implementation.

Issues which have come to our attention, include the following.

Every magistrate office, be it rural or urban, is having enormous problems with implementing the Act due to the fact that they do not have enough personnel (permanent or temporary) to deal with the huge increase in domestic violence cases. A copy of statistics from the courts is attached hereto.

Statistics received from the Bloemfontein and Pretoria Magistrate Offices has indicated that applications fro protection orders have increased from:

Notice the difference, in 3 months they had dealt with 1000 applications in 12 months it will be 4000 or more because the public is becoming more and more informed of the Act.

Some offices in rural areas do not have personnel who is able to help an applicant in his/her own language or an understandable language, which results in community members setting up booths where they charge R40.00 to fill in the application form for the applicant.

Most offices, especially those which were previously disadvantaged, do not have resources such as fax machines, photocopiers, court recording machines, computers and phones. This makes it very difficult to communicate with other stake involved in the implementation of the Act.

Some magistrate offices (which include better-resourced offices) do not have enough funds available to ensure that they have photocopying paper to photocopy the application forms, as the Department has problems in getting forms from the Government printers.

At the moment problems are also experienced with making applications outside of ordinary court hours, due to the fact that it places a heavy strain on the lacking personnel resources of each office and the fact that overtime pay has been suspended due to financial constrains. Another aspect of this problem is also that some officials still need to make an attitudal change to contribute to the successful Implementation of the Act.

Other financial implications include lack of sufficient funds for the service of process. This problem is experienced through most of the offices.

There are still a great need employment of personnel with the necessary capacity to implement the Act and for training of personnel already in the system on the Act, throughout the country. The issues surrounding training needs is still investigated to determine the specific resources required.

In some instances, jurisdiction differences of Magistrate Offices and Police Stations, have also created problems in the handling of domestic violence cases.

It has also been noted that problems are being experienced with the granting of bail in certain cases. This relates to bail being granted in serious cases as well as bail being granted where the respondent has contravened the protection order.

Magistrates refuse to take into consideration, when granting a protection order or bail, the fact that the perpetrator has a criminal case against him of, for example, attempted murder against the complainant. This makes them not to make appropriate orders.

The Maintenance Act , No.99 of 1998 (The Act) was implemented on 26 November 1999, except for the provisions relating to the appointment of Maintenance Investigators. The reason being that the Department of Justice does not have sufficient funds fir this purpose.

A project team was formed to investigate and examine several models for the Maintenance Investigators Implementation Programme. The Project Team recommended the implementation of one or more of the following models:

1. Outstanding of the functions of the maintenance investigators to private contractors, including sheriffs.
2. To utilize existing administrative clerks/officers and to train them for the position of maintenance investigators. This model is divided into three sub-models:

• establish one Maintenance Investigator Unit
• establish nine Maintenance Investigator Units (one in each province)
• utilize one administrative clerk/officer per court

1. The model of using a hybrid option, such as an administrative clerk or outsourced company for the tracing function (by way of computers and databases in the office) and sheriffs for the fieldwork.

However, despite the formulation of these models, none of the above- mentioned models could be implemented due to the financial constraints of the Department.

The following can be mentioned as background with regard to the Department efforts to procure funding for the appointment of maintenance investigators.

During May 2000, a Maintenance Project Proposal was submitted to the Department of Finance, requesting that an amount of R18 million be made available from the Poverty Alleviation Funds, to be utilised for provisions relating to the appointment of investigators in terms of the Act.

From the R18 million requested, approximately R2 million would have been earmarked for the appointment of a maintenance unit, to efficiently facilitate the implementation and monitoring of the Act. In view thereof that no such funds were allocated, the Department has had to allocate such tasks additionally to personnel from the Department’s Directorate: Children and Youth Affairs for this purpose. The remaining funds requested (16 million) would have been used for the appointment of maintenance investigators.

The Department of Finance did not approve this request and therefore no fund from the Poverty Alleviation Fund was allocated to the Department.

In an attempt to solve this dilemma at the Department has had to re-prioritise its funds to initiate the process to appoint such as persons and has allocated R6 million in its current budget for this purpose. This amount is obviously not sufficient for the proper implementation of section 5 of the Act, as the said Act provides that the Minister of Justice and Constitutional Development shall progressively appoint at least one maintenance investigator per court, within the financial constraints of the Department. Accordingly, the Department had to re-strategise the implementation plan of action bearing in mind the limited funds available.

Furthermore as an interim measure the Department has distributed a circular to all Regional Heads and Cluster Heads with a view to determining whether:

• There is any person who could be seconded form his or her present post to act as maintenance investigating officer until such time that the Department is in a position to make permanent appointment; there is any person occupying an established post who has the capacity to perform the duties of a maintenance investigator in addition to his or her present duties (an existing maintenance clerk or maintenance officer)
• It is possible to make a contract appointment in terms of that court’s existing budget; or
• It is possible to appoint a temporary unit as maintenance investigator.

Unfortunately, all the courts that have responded to the said have indicated that they are not in a position to accede to any of the aforementioned request due to their own financial constraints and lack of human resources.

To further assist in the matter, the Department of Justice has embarked on developing a National Action Plan to re-engineer the maintenance system with the primary focus on improved service delivery and the appointment of maintenance investigators. A Working Committee including all relevant stakeholders has been nominated to focus exclusively on determining the most efficient manner, which will guarantee results which will be sustainable. Options in this regard include the investigating of proposal received from various organizations for example the sheriffs profession and investigations into the previously mentioned models formulated for the appointment of maintenance investigators.

The Department has made a further plea to the Presidency for funding from the Poverty Alleviation Funds. It is also presently updating the financial costing in the maintenance Project Proposal Action to be submitted to the Department of Finance for an allocation of funds for the appointment of Maintenance Investigators for the year 2001.

In order to monitor the success of the implementation of the Act, the Department issued circulars early this year, 2000 requesting magistrates to submit statistics, regarding the implementation of the Act, on a quarterly basis. As well as to submit particulars of problem areas experienced and the comments of the public in this regard. However, the Department is not in a position to make an accurate analysis of the said statistics, because as many of the 476 magistrate s courts have not submitted the necessary information. Further circulars requesting magistrates to supply the outstanding information have been issued. The Department is also looking into automating the collection of these statistics.

Despite the aforementioned difficulties the following problems at the courts were identified from the information received:

• the lack of and urgent need for maintenance investigators.
• insufficient availability of maintenance complaint forms and that forms are only available in English.
• staff shortages.
• dramatic increase in the volume of work since the implementation of the new Act, which has placed a sever strain of available resources.
• that sheriffs fees are too high (during recent negotiations with the sheriffs they indicated that they are willing to reduce their fee by 20%).
• delays in the finalisation of maintenance matters and payouts of maintenance matters (These issues are addressed to the Regional Heads for investigation) and the e-justice project will assist in terms of tracing the cases.

A business plan has been developed for the implementation Strategy of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000. The training aspects of this Business Plan were extracted and articulated in a separate Business Plan on Capacity Building. The following has since been achieved on the basis of the business plan and through the work of the inter-branch team referred to as ELIT: Equality Legislation Implementation Team.

1. Partial implementation of the Act focusing on general and specific provisions that lay the basis for the appointment of the Equality Review Committee, an advisory structure provided for in the Act
2. Appointment of the Equality Review Committee
3. Development and circulation of Draft regulations under the Act
4. Training of a Group of "Ambassadors" to perform advocary work on the Act
5. Establishment of a Training Management Team which includes representatives of the Department, Judicial Service Commission, Magistrates Commission, South African Human Rights Commission, Commission on Gender Equality and Civil Society. Participants include judges, Magistrates, Academics, practicing attorneys and advocates as well as management and human rights training experts.
6. Development of a training design document and process map culminating in March 21 the date of implementation of the rest of the Act
7. Development of a communication strategy and commencement of public awareness
8. Briefing of provinces about the implementation process and initiating a process of establishing Provincial ELITs and implementation strategies
9. Informing other role players about their responsibilities under the act, including the initiation of discussions with SAMDI regarding the provision of training to public employees outside the department.

CONTINUING CHALLENGES

10. Fostering an understanding that change management is about management of transformative interventions and not a separate thing from transfrmation.

• Finalisation and monitoring of the implementation of the Departmental Employment Equity Plan in compliance with the Employment Equity Act.
• Implementation of a focused and sustained organizational development programme as envisaged inJV2000, with a view to in particular, to engendering a learning organization.
• Coaching managers to integrate all transformation issues, including gender analysis in budgets and daily activities.
• Transformation of the organizational culture particularly to ensure a paradigm shift from internal and rules focus to customer focus and to affirm difference with special reference to gender and cultural difference.

1. Effective Coordination of the Equality Legislation Implementation Project, to ensure effective implementation of the Promotion Equality and Prevention of Discrimination Act and in particular to ensure that Equality courts are up running by 21 March 2001.

• Promoting a diagnostic and synergistic approach to change
• Facilitating a strengthened response to affirmative procurement policies
• Development of Policy on Pay Equity
• Facilitating the process of right sizing and ensuring that change entailed therein, is managed sensitively

A report on customary marriages was submitted to the Minister on 30 September 1998. A memorandum was to the Minister in which it is recommended that the Recognition on Customary Marriages Act 120 of 1998 should come into operation on 15 November 2000. Draft regulations for promulgation have also been submitted to the Minister of Justice and Constitutional and Development.

The Department of Home Affairs has the responsibility of registering the customary marriages that are valid. However, in some rural areas, there are no Home Affairs offices and some are over 40KM away from the communities. Therefore the Magistrates Courts used to register those marriages. The Act excludes the Magistrates Courts totally.

The anticipated problem is that the Department of Home Affairs may not be ready on the 15^th of November 2000 in terms of forms for registration and Registering officers/Designated officers. Since the Act excludes Magistrates on the day the Act comes into operation, Magistrates will have to send the applicants away if there is no arrangement made by the Department of Home Affairs.

Further the Act provides that "a court" means a High Court of South Africa, or family court established under any law, and for the purposes of section 8, a Divorce Court established in terms of section 10 of the Administration Amendment Act, 1929 (Act No 9 of 1929). These are courts that will be dealing with dissolution of the customary marriage and determination of age as required by the Act. Here also the Magistrates courts are excluded by the Act. This might create hardship for people in the rural areas as there are no High Courts, Family Courts or Divorce Courts in the rural areas. People might have to travel 100KM to access these courts. The monitoring task-team is in the process of writing a memorandum to the Minister requesting him to appoint Magistrates who have been dealing with dissolution of customary marriages as Presiding Officers in order to facilitate access to justice by communities.

The Communication Services in the Department is in the process of developing awareness raising material on the Act and its implications to the people in the customary marriages/relationships.

An issue paper on succession was published for general information and comment on 28 April 1998. The closing date for comments was 30 June 1998. The development of a discussion paper was receiving attention when the Department of Justice introduced a Bill in Parliament entitled the "Customary Law of Succession Amendment Bill". The Bill having since been withdrawn, the then Acting Director-General indicated on 14 September 1999 that the investigation should go back to the Law Commission as a matter of urgency. The Minister agreed. A draft discussion paper (which includes a draft Bill) on succession in customary law was considered by the project committee on 13 May 2000. It was approved for publication by the Working Committee on 5 July 2000. The discussion paper was released at a media conference on 8 August 2000. The closing date for comment on the discussion paper was 22 September 2000.

On 13 May 2000 the project committee also considered draft papers on administration of estates in both customary law and under the Administration of Estates Act 66 of 1965. The papers were combined and a draft discussion paper on administration of estates was considered by the Working Committee on 5 July 2000. An amended draft discussion paper which will include draft legislation will be considered by the Working Committee at its next meeting.

A report on conflicts of law was submitted to the Minister on 8 September 1999. The report was tabled on 29 May 2000. A Cabinet Memorandum is being drafted by the Department.

A discussion paper on the judicial powers of traditional leaders was published on 6 May 1999. Countrywide workshops were held during the period 9 June –13 June 1999. The closing date for comments on the discussion paper was extended to 31 August 1999. The researcher attended five workshops on the discussion paper hosted by the Commission on Gender Equality on 7,14,15,16 and 17 September 1999. A full report on the country-wide workshops was given by the researcher and project leader to the project committee on 15 October 1999. A task team comprising Professors Bennett, Nhlapo and Rugege presented a draft Bill on Traditional Courts to the project committee. Joint submissions on the discussion paper received from the Centre for Applied Legal Studies, Commission on Gender Equality, and the National Law Committee, as well as a draft Bill on Customary Courts, were considered by the project committee on 13 May 2000. An amended draft Bill on Customary Courts was distributed to a select group of stakeholders for their comments. The compilation of the final report has been delayed by the resignation of the researcher. The project leader is in the process of finalizing alternative arrangements for the completion of the report on the judicial powers of traditional leaders.

The drafting of legislation to combat the sexual exploitation and abuse of children was a priority identified in the National Plan of action for Children. The Minister of Justice accordingly requested the Commission to include an investigation into sexual offences by and against children in its law reform programme.

An issue paper was published in May 1997 for general information and comment. The closing date for comment was 30 September 1997.

It became clear during the course of the investigation that any proposed changes to the law relating to sexual offences would have far-reaching effects on the position not only of children, but also of adults. Consequently, and as a result of various other requests, the Commission decided to expand the scope of the investigation to include sexual offences against adults.

It has been decided to follow an incremental approach with a view to expediting the investigation. The current law is not in line with thinking elsewhere in the world. Consequently an extensive legal comparative survey of carefully selected jurisdictions has been undertaken.

A discussion paper on sexual offences: the substantive law, was submitted to the Minister on 8 September 1999. An extensive consultation process on the discussion paper was launched. The closing date for comment was extended to 30 November 1999.

Some of the recommendations made in the discussions paper are the following:

• The criminal law is the appropriate mechanism to address sexual exploitation, abuse and violence against women and children in particular.
• The Commission does not recommend the repeal of all common law sexual offences. However, the adoption of one comprehensive new Sexual Offences Act is recommended.
• The Commission proposes the repeal of the common law offence of rape and its replacement with a new gender-neutral statutory offence. This new offence centers around " unlawful sexual penetration". The Commission says sexual penetration in unlawful per se when it occurs under coercive circumstances. Coercive circumstances include the application of force, threats, the abuse of power or authority, the use of drugs, etc. "Sexual penetration" is defined very broadly to include the penetration "to any extent whatsoever" by a penis, any object or part of the body of one person, or any part of the body of an animal into the vagina, anus, or mouth of another person. Simulated sexual intercourse is also included under the Commission’s definition of "sexual penetration".
• Sexual penetration of any child below the age of 12 years should constitute rape.
• Absence of consent to sexual intercourse should no longer be an element of the offence of rape. (The accused should obviously still be able to raise consent to sexual intercourse as justification for his/her unlawful conduct, but should carry the burden of proof in this regard.)
• A husband can be convicted of raping his wife
• A statutory provision called "child molestation" is aimed at prohibiting sexual acts with children below 16 years of age. Consent by a child under 16 years of age to any sexual act should not be a defence to a charge under this provision.
• As most cases of intra-familial sexual abuse take place repeatedly and over long periods of time, child victims often have difficulty recalling precise details of the periods and time and place when and where the alleged offences are said to have occurred. It is thus recommended that the "persistent sexual abuse of a child" should constitute a separate offence.
• The commercial sexual exploitation of children should be prohibited. Commercial sexual exploitation includes child prostitution, child pornography and trafficking in children.
• Although the Commission supports a total prohibition of child pornography, it nevertheless does not propose the inclusion of provisions on child pornography in the new Sexual Offences Act. The Commission does not recommended any legislative amendments pending the review of the Films and Publications Act.
• Specific provisions should deal with sexual offences against mentally impaired persons.
• The Commission recognizes that a clear need exists for specific legislation criminalizing stalking (or harassment) and recommends that a specific investigation be conducted in this regard.
• A statutory offence in respect of coercion to perform sexual acts covers the actions of a person who compels another person to engage in sexual acts with that person, a third person, an animal or the compelled person himself or herself.
• Comment is invited on the prohibition of female genital mutilation.

Several workshops and briefings have been held on this discussion paper since its release. Submissions received have been collated and the preparation of a draft report is receiving attention. It is envisaged to have draft legislation ready for consideration by the project committee by 30 November 2000.

A discussion paper on sexual offences: process and procedure is receiving attention. This discussion paper addresses issues such as bail for sexual offenders, making it easier for victims of sexual offences to testify in court, and the sentencing of persons convicted of sexual offences, etc. The Project Committee considered a third draft of this discussion paper at its meeting held in Pretoria on 17 and 18 August 2000. It is envisaged to have a final draft discussion paper and draft legislation ready for consideration by the Project Committee by 30 November 2000.

A third discussion paper on commercial sex workers is receiving attention. It is envisaged to have a draft discussion paper and draft legislation ready for consideration by the project committee by 30 November 2000.

This discussion paper is being prepared against the following background. The Sexual Offences Act 23 of 1957 criminalises numerous aspects of the adult commercial sex working industry, including:

• Living wholly or in part off the proceeds of prostitution
• Keeping a brothel
• Procurement of persons for the purpose of pimping them to a third party
• The prohibition of solicitation

However, the Sexual Offences Act 23 of 1957 does not contain any express reference to clients being culpable of an offence if issuing the services of sex workers. Interestingly enough, a new law criminalizing the buying of sexual services was introduced in Sweden on 1 January 1999. Such developments will also be considered in the investigation.

Despite the explicit condemnation of sex work, the Sexual Offences Act 23 of 1957 has over the past decade hardly ever been used to prosecute adult sex workers. While brothel owners have occasionally been charged, in most cases the Act has been enforced in cases involving the sexual exploitation of children.

In recent years, new means of policing the industry have emerged. This includes:

• Charging street sex workers under municipal bye-laws for activities such as loitering, public indecency, and being a public nuisance;

The specific targeting of escort agencies and massage parlours by immigration officials

• The strategy of the Receiver of Revenue to extract income tax from management and sex workers at escort agencies and brothels

Such actions indicate that, while there is de facto acceptance that the sex industry is here to stay, there is a desire to regulate it extent and to define limits as to what is acceptable within the industry itself.

The preparation of a discussion paper on pornography is now also receiving attention. It is envisaged that a first draft of the discussion paper and draft legislation will be ready for consideration by the project committee on 28 February 2001. The need for a specific focus on pornography is necessitated by the inadequacies of the Films and Publications Act to deal with pornography coupled to the increased use of the Internet. Child pornography, however, is being dealt with in the report on substantive law.

The strategy consists in two phases:

• Posters;
• Radio talks;
• Information sessions; and
• Media release.

The awareness campaign kicked off during the second half of 1998. From July 1998, talk-shows were held on number of Radio stations, namely:

• Voice of Soweto
• Radio Turfloop
• Ikwekwezi FM
• Vaal Community Radio and
• Winterveldt Community Radio

On the first five radio stations weekly phone-in programmes were hosted which involved participation by the various audiences.

Posters were printed in the eleven official languages and distributed through schools, other Government Departments, NGO’s and at various public buildings.

2. Information and Education Campaign consisting of the following:

• Brochures;
• Feature article in newspapers;
• Pull-outs;
• Canned programmes for radio broadcasts.

Brochures were prepared and printed in all official language. Feature articles were written and published in various newspapers and magazines. Pull-outs were commissioned with newspaper groups with the widest circulation. Radio programmes were produced and recorded on CD in eight official languages and distributed to fifty-three community radio stations and nine radio stations under the SABC, the public broadcaster. Radio talk-shows proceeded to allow for greater public participation and to engender understanding.

• The Department is inundated with requests to provide printed material to Advice Centres for use with their projects.
• The Department is also often requested to provide funding directly to NGO’s.
• Material is firstly developed in English and then translations are made. Translated versions can usually not be produced in all languages due to budgetary constraints. This is problematic as there is a great need for material in all eleven official languages especially in disadvantages areas where people are not conversant with the technical jargon associated with courts.
• A serious challenge is the lack of prescribed forms being available at sub-offices. This leads to the community being sent to make copies at their expense.
• The attitude of court personnel is a large stumbling block. No matter the effort put into raising awareness, their attitude remains the same. The Principle of Batho Pele are rarely adhered to.

A quick audit was done during August 2000, with the aim of gathering preliminary statistics on the new Domestic Violence Act on the number of applications for protection orders received at Magistrate Offices.

Six magistrate offices were identified, namely:

• Magistrate Office PRETORIA
• Magistrate Office BLOEMFONTEIN
• Magistrate Office WYNBERG
• Magistrate Office KLERKSDORP
• Magistrate Office JOHANNESBURG
• Magistrate Office RANDBURG

The statistics received from the offices relates to the number of applications for protection orders received during the year 1999 and the year 2000, since the commencement of the new Act.

This indicates an increase of 357 applications in a 7-month period during the year 2000.

This indicates that the office received only 417 applications LESS during the 3 month period (Jan n- Mar) in the year 2000, compared to the number of applications received during the 12-month period (Jan – Dec) in 1999.

 
The indicates that the office received only 130 applications LESS during the 4 month period (Jan – Apr) in the year 2000, compared to the number of applications received during the 12-month period (Jan – Dec) in 1999.

This indicates that the office received only 176 applications LESS during the 6 months period (15 Dec 1999 – May 2000) in the year 2000, compared to the number of applications received during the 12-month period (Jan – 14 Dec) in 1999.

This indicates an increase of 337 applications in a 12-month period during the year 2000.

• 1999 – January to July (a 6 month period)
• 2000 – January to July (a 6 month period)

The total number of applications for the time period:

• 1999 (6 months) = 299
• 2000 (6 months) = 495

This shows an increase of 196 applications in the 6-month period during the year 2000.