DOMESTIC VIOLENCE IN SOUTH AFRICA
Acts of domestic violence against women, children and the elderly is a global problem. Domestic Violence is not confined to the poor, it affects the rich and the poor, and it cuts across class, gender, culture and religion. One look at the statistics and it is clear that the incidence of Domestic Violence in South Africa is particularly high. In its 2021 Report, Statistics South Africa indicated that 1 in 5 South African women are victims of domestic violence. This is only the tip of the ice-berg given the low-incidence of reporting of domestic violence. It is also well known that in South Africa there is an extremely low criminal prosecution rate for cases of Domestic Violence and assault against women and children, and that the South African conviction rates for these crimes are in fact dismal.
Why is this ? As a rule, domestic violence generally takes place within the four walls of the home where there are no outside witnesses to the violence. Poverty, gender imbalance, entrenched patriarchal systems in many South African communities, and alcohol and drug abuse are all factors that contribute to the high incidence of domestic violence in the country.
There is also as mentioned, a general under-reporting of domestic violence, particularly violence in the home against children and the elderly. Economic and relational dependence, the “voicelessness” of the victims and the potential misdiagnosis of the signs of domestic violence are all contributing factors to this dire situation.
Role players to whom reports of domestic violence may have been made, may also not have the necessary expertise to handle such matters. Due to their own ignorance or reluctance to become involved in a domestic violence matters, they may downplay the severity of the matter, “forget” to tell the victim about her legal rights and the protection the Law can give her, or refuse to follow protocol for helping the victim. All of this, would simply end up discouraging a victim from accessing available legal protection.
It is a well known fact that the involvement of the Courts in matters of domestic violence can also be an extremely traumatic experience for the victim. Especially where the relevant role players have failed in their duty to take advise the victim of her rights, the available law, and the procedures that need to be to be followed in respect of the law.
What follows here-below is an overview of the South African Domestic Violence Act of 1996.
WHAT IS DOMESTIC VIOLENCE?
Domestic violence is broadly defined as an act of violence against a person (or persons) sharing a familial or domestic relationship with the perpetrator.
The categories of people who can access the law include:
- People who were married to one another (whether by law, custom or religion).
- People who have lived together in a relationship (this can include a same-sex permanent relationship).
- The parents of a child or a person who had parental responsibilities over the child.
- Family members who have shared the same residence.
- People who are or were engaged or in a dating relationship or customary relationship (whether actual or perceived)
- People who shared the same residence.
WHAT IS THE DEFINITION OF DOMESTIC VIOLENCE?
The South African Domestic Violence Act of 1996 defines domestic violence as including the following:
- any act or threat of physical abuse;
- any act or threat of sexual abuse;
- emotional, verbal and psychological abuse;
- economic abuse;
- harassment; stalking;
- damage to property;
- entry into the residence of a person sharing or having shared a domestic relationship with the perpetrator without that person’s consent, where the parties do not share the same residence; or
- any other controlling or abusive behaviour.
The Act defines these categories of abuse as follows: –
- Physical Abuse means any act or threatened act of physical violence;
- Sexual Abuse means any conduct that abuses, humiliates or degrades or otherwise violates the sexual integrity of the person;
- Emotional, Verbal and Psychological Abuse means a pattern of degrading or humiliating conduct towards the person including repeated insults, ridicule or name calling; repeated threats to cause emotional pain; repeated exhibition of obsessive compulsiveness or jealousy which invades the person’s privacy, liberty, integrity or security ;
- Economic Abuse includes the unreasonable deprivation of economic or financial resources to which a person is entitled under law (i.e. spouse) or which the person requires out of necessity or, the unreasonable disposal of household effects or property in which the person has an interest ;
- Intimidation means uttering or conveying a threat, or causing the person to receive a threat which induces fear;
- Harassment means engaging in a patter of conduct which induces a fear of harm in a person including repeatedly watching or loitering outside of a persons residence, place of work, business or the place where the person happens to be; repeated telephone calls to the person irrespective of whether conversation ensues or not ; repeatedly delivering or causing the delivery of letters, e-mails facsimiles or other items to the person
- Stalking means repeatedly following, pursuing or accosting the person;
- Damage to Property means the intentional damage or destruction of property belonging to the person or in which the person has an interest.
WHAT IS THE PROCEDURE TO FOLLOW TO OBTAIN A DOMESTIC VIOLENCE INTERDICT?
A domestic protection order can only be granted by a Court. The application for a Protection Order can be made at any magistrate’s court having jurisdiction over the area: –
- where the complainant (the victim) resides (temporarily or permanently) or works;
- where the Respondent (the perpetrator) resides or works;
- where the act or acts of domestic violence took place.
Once a Magistrate’s Court having the necessary jurisdiction over a matter has granted an Interim Protection Order or issued a Notice to Show Cause and given a return date for the hearing of the matter, that Court will be the Court that the parties will have to return to for the hearing ( albeit that either or both Parties may in the interim have moved out of the Court’s jurisdiction). Nothing prevents a Party to a Domestic Violence matter asking the Magistrate’s Court to transfer the matter to another Court for their hearing of the matter, but the process of transfer of a matter from one court to another, is not without potential obstacles and delays, and this should ideally be avoided.
It is critical that victims of Domestic Violence are aware that the Domestic Violence Act makes provision for the granting of Protection Orders outside court hours and on days which are not court days. The court will only grant an Order in these cases where it is satisfied that the victim will suffer undue hardship if the application for the Protection Order is not dealt with immediately. The procedure to follow for the obtaining of an after-hours order is to contact the nearest police station who will have the contact details of the magistrate and prosecutor on duty.
THE GENERAL PROCEDURE TO FOLLOW FOR AN ORDER
The Complainant (victim)will be required to complete a standard form setting out :
- Why he or she needs an Order
- What acts of domestic violence he or she requires protection from.
- The nature of the domestic relationship between him or herself and the respondent (perpetrator).
Supporting documentation such as witness reports, medical reports, and statements from persons that have knowledge of the domestic violence should where possible, be attached to the application. Given the nature of abuse and the fact that it generally takes place behind closed doors, the absence of supporting documentation should not disqualify a person from obtaining a Protection Order.
An application for a Protection Order can be made on behalf of the victim by a third party including among others, a social worker, counsellor, health service provider, or a relative. Where the application is made by a third party, the victim’s written consent to their bringing the application on the victim’s behalf, must be given to the court. No consent is required where the victim is a minor, is mentally challenged, or is unable at the time to provide the necessary consent.
A minor child can go to Court to apply for a Protection Order without the consent of his or her parents or guardians.
Once the application form has been completed, the clerk of the court will submit the application papers to the magistrate who will grant an Interim Protection Order against the respondent in the event that he or she is satisfied that :
- the respondent is committing or has committed the acts of domestic violence; and
- the complainant will suffer hardship if an order is not immediately granted,
Where the magistrate is satisfied that the above requirements have been met, the magistrate will grant an interim order for the protection of the complainant and order that both the complainant and the respondent return to court on a specific date so that the court can decide on whether the Interim Protection Order should be made a final Order or whether the application should be set aside in its totality.
Where the court is not satisfied that the victim will suffer hardship if the Order is not immediately granted, the procedure the court will follow is to give notice to the respondent to show cause why on a specific date that a Protection Order should not be granted in the complainant’s favour. The complainant will also be required to attend court on this date.
WHAT IS THE DIFFERENCE BETWEEN AN INTERIM AND FINAL PROTECTION ORDER?
An interim protection order is of a temporary duration only.
A final Protection Order is generally only made after the court has had an opportunity to hear both sides’ version regarding the issue of domestic violence. In cases where a respondent fails to attend court for the hearing of the matter (after having been officially advised of the return date herein), the court may make a final Protection Order, even though the respondent was not at court.
SERVICE OF AN INTERIM ORDER ON THE RESPONDENT
The clerk of the court will arrange for a copy of the application papers together with a copy of the Interim Protection Order to be served on the respondent by either the sheriff, or a member of the South African Police Services. Service effected by the police is normally only required where there is a likelihood that the perpetrator will resist service.
The complainant is responsible for the costs of service of the court documents on the respondent, unless at the time of the making of the application, the court is satisfied that he or she cannot afford these costs.
The Interim Protection Order is of no force or effect against a respondent unless it has been served on the respondent. As soon as service has been effected on the respondent, the court will furnish the complainant with a certified copy of the Interim Protection Order as well as with an original warrant of arrest against the respondent in the event of the respondent violating the provisions of the Interim Protection Order.
On the return date to court, the court will consider the respondent’s evidence. Where the court is satisfied (on a balance of probability) that the respondent has committed or is committing an act of domestic violence, it will issue a final Protection Order against the respondent. This Order will remain in force until such time as it is set aside by another court.
TYPES OF ORDERS THE COURT CAN MAKE
Depending on the nature of the case, the court has the power to order a respondent :
- not to commit any act of domestic violence ;
- not to enlist the help of any other person to commit an act of domestic violence ;
- not to enter a residence shared by the complainant and the respondent ;
- not to enter a specified part of a shared residence ;
- not to enter the complainant’s residence ;
- not to enter the complainant’s place of employment ;
- not to prevent the complainant from entering any part of a shared residence ;
In addition to the above:
- The Court can also order the seizure of any arm or dangerous weapon in the respondent’s possession ;
- The Court can order that a peace officer to accompany the complainant to a specified place to collect his/her personal property ;
- The respondent can be ordered to pay emergency monetary relief to the complainant ;
- The Court can issue a refusal for the respondent to have contact with any child, or an order for contact with the child on conditions the court deems appropriate in the circumstances.
PROCEDURE WHERE THE WARRANT OF ARREST IS LOST
Where the complainant has lost the warrant of arrest the clerk of the court is required to issue the complainant with another warrant of arrest.
PROCEDURE WHERE THERE HAS BEEN A VIOLATION OF THE COURT ORDER
Where the respondent has violated the terms of the court order, the complainant will be required to go to the nearest police station, to advise the police of this and to hand over to them an affidavit with the warrant of arrest for their execution of the warrant. The procedure that the police are required to follow where there has been a violation of the Court Order is set out in the Act.
VARIATION OF THE COURT ORDER
The Domestic Violence Act allows a complainant or respondent to apply for the variation or setting aside of a protection order. The court will however not grant an application by a complainant for the setting aside of a protection order unless it is satisfied that the application has been made freely and voluntarily.