COMMISSION FOR GENDER EQUALITY

1. COMMISSION FOR GENDER EQUALITY Consolidated Court Monitoring Assessment / Report Financial year 2013-2014 Date: 10 March 2015 Presenter: Marissa Van Niekerk Head of the Legal Department

2. OVERVIEW • Introduction • APP Requirement • Courts Monitored including Findings • Recommendations • Limitations

3. INTRODUCTION • The CGE aims to transform society by “exposing gender discrimination in laws, policies and practices, advocating changes in attitudes and gender stereotypes; and instilling respect for women’s rights as human rights”. • The right to access to justice is heavily intertwined with the host of Human Rights and can be traced to Article 8 of the Universal Declaration of Human Rights wherein it is cited that:- “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him /her by the Constitution or by law”

4. CONTINUED … • Section 34 of the SA Constitution provides that : - “Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.” • The skewed gender parity in South Africa gives birth to a context wherein access to courts and in turn effective process is vital in rectifying the historical imbalance.

5. CONTINUED… • I.e. Maintenance Courts Many women are left to bring maintenance applications on behalf of their minor children against absent and / or non contributing fathers. Therefore ,the effectiveness of Maintenance Courts is significant in attaining equality in the financial responsibilities inherent in the upbringing of children. • According to the Institute of Race Relations, 9 million children in South Africa grow up with absent fathers.

6. APP REQUIREMENTS • The CGE’s Strategic Plan per objective 1 tasks the CGE to : - “ ensure the creation and implementation of an enabling legislative framework that promotes the attainment of gender equality” • In order to achieve the overarching Strategic Objective 1, Sub Strategy 1.4 further provides the duty to: - “evaluate the facilities of the national justice facilities for gender discrimination”

7. MONITORING • Administering questionnaires, onsite visits and in turn insight garnered from complaints received. • Courts monitored

8. EQUALITY COURTS • The dismal functioning of the Equality Courts is evident in throughout SA. • A total number of 12 Courts were monitored. Out of the number, only one proper functioning equality court was found in existence.

9. CONTINUED … • For example: - Elliottdale – “Court has never operated” • It must be highlighted that in 2006 and 2007 , CGE embarked upon the monitoring of Equality Courts throughout the country and made a submission in this regard to Parliament in 2008. • The same patterns/findings are still apparent .

10. KEY FINDINGS • Low levels of community awareness about the operation or existence of these Courts. • Insufficient training has been provided to Equality Court officials. Clerks of the Courts, Court Managers and Presiding Officers still do not have sufficient information to guide the public on how they can bring equality cases before the Equality Courts and in turn adjudicate same. • Allocation of relevant financial resources to provide the optimal functioning of these Courts .

11. MAINTENANCE COURTS • The Legal Department receives an influx of Maintenance Complaints. By resolving such complaints, immense insight is obtained as to the functioning of the said courts and associated problems. Moreover, actual court monitoring took place. • Recently, the CGE also inputted into the Maintenance Amendment Bill – drawing on its findings and handled complaints .

12. CONTINUED… Example of a Maintenance Complaint • Mdantsane Magistrates Court - the Complainant alleged bias of the Maintenance Prosecutor. • Accordingly, CGE sought the removal of the Maintenance Prosecutor and assisted the Complainant in attaining the assistance of the Legal Aid Board to represent her in proceedings. • In total CGE dealt with 95 maintenance complaints for the 2013/2014 period.

13. CONTINUED … • Six Courts were formally monitored by means of questionnaires and warm body inspections :- • Douglas Magistrate Court • Harts water Magistrate Court • Kuruman Magistrate Court • Barberton Magistrate Court • Breyton Magistrate Court • Carolina Magistrate Court

14. KEY FINDINGS • Maintenance Prosecutors and Investigators are not fully conversant with what they are supposed to do ( job description). • Lack of proper system wherein warrants of arrest are furnished to SAPS for service (collected each day ). • Inadequate facilities ( office space ) – private areas for breastfeeding women etc .

15. DOMESTIC VIOLENCE COURTS • Like Maintenance Courts monitoring took place through complaint handling and administering of questionnaires and court visits. Example of a DV Complaint – Durban • The complainant lodged a domestic violence application against her domestic partner for domestic abuse. The Respondent is employed at the Durban Magistrates Court

16. CONTINUED… • The Complainant alleged that the matter was not being fairly adjudicated by the Magistrate (bias). • CGE is liaising with the Magistrates Commission to investigate the conduct of the Magistrate. • In total, the CGE dealt with 52 domestic violence cases for the 2013/2014 period.

17. CONTINUED … • Five Courts were formally monitored by means of questionnaires and warm body inspections:- • Barberton • Breyton • Carolina • Harts water • Kuruman

18. KEY FINDINGS • Certain officials including Magistrates lack understanding of the application of the Act. • The Act is used as a means to “fight other battles” such as division of assets in the joint estate. • There is no integrated system wherein the Clerks and Magistrates can determine the number of applications made by the individual and any related applications by the Respondent – there are high incidents of orders and counter orders that aren’t consolidated into one matter .

19. CRIMINAL • Despite the monitoring of the effectiveness of criminal courts not being specifically mentioned in the cited Strategic Plan objective and associated deliverable, it is strongly put forward that an overview of such courts be provided/ inserted in the report. • From a gendered perspective specifically with high incidents of rape, the criminal courts are instrumental in addressing gender based crime(s).

20. CONTINUED … • Provincial Offices monitor Criminal matters and track the efficiency of the Justice System . Case in point - Butterworth Case Number C 1214 / 2012 – dubbed the Tholeni Serial Killer • Murdered mostly elderly women in the Butterworth area (a small village called Tholeni). • The Legal Officer attended the trial and sentencing and was in constant liaison with the prosecutor and investigating officer.

21. RECOMMENDATIONS The following may assist in improving access to justice and the effectiveness of the impugned Courts:- • Inclusion of the Equality Court Procedure into the LLB curriculum and resultant Admission Exams. • An aggressive marketing /information campaign about the Equality Courts. • Increased Equality Court litigation by Chapter Nines.

22. Continued … • An integrated computer system for Domestic Violence Cases. • An integrated computer and tracking system for warrants of arrests issued for Maintenance Cases. Clear cut processes on whose duty it is to collect the warrants from the court for service by SAPS. • Intensive training of Magistrates and Clerks on the Equality Court Procedure and application of the Domestic Violence Act . • Lobbying for the establishment of a Victims Fund.

23. WAY FORWARD • 2014 / 2015, court monitoring shall continue, but shall expand to include the monitoring of the Sexual Offences Courts .

24. Thank you for your time Enkosi Ndo livhuwa / Ro livhuwa Dankie Inkomu Ngiyathokoza Siyabonga Ke a leboha CGE Free Call Hotline 0800 007 709 Twitter: @CGEInfo