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Domestic Violence - South Africa

     By Eversheds

All too often, individuals co-habiting in domestic relationships endure every day with ongoing abuse on some or other level. In 1998, South African (SA) legislature sought to eradicate the occurrence of domestic abuse with the promulgation of the Domestic Violence Act, 116 of 1998 (the Act).

As stated in the Act, it recognises that domestic violence is a serious social evil, with a regrettably high incidence in SA, and that victims of domestic violence are among the most vulnerable members of our society. Sadly, the previous legislation did not provide effective relief to victims.

Therefore, the new Act seeks to afford victims of domestic violence the maximum protection that the law can provide and to introduce measures which seek to ensure that the courts and police officials give full effect to the provisions of this Act.

Since domestic violence manifests in many forms, acts thereof may be committed in a wide range of domestic relationships. Such relationships, in this sense, broadly encompass individuals who are or were in a romantic relationship, whether married or not, family members and persons residing or who have recently resided together in a common household.

The Act speaks of a “complainant”, being the individual in a domestic relationship who is suffering the harm, and a perpetrator who has allegedly committed an act of domestic violence is referred to as the “respondent”. The acts of abuse or domestic violence can be any one or all of the following:

• physical abuse
• sexual abuse
• emotional, verbal and psychological abuse
• economic abuse
• intimidation
• harassment
• stalking
• damage to property
• entry into the complainant's residence without consent, where the parties do not share the same residence
• any other controlling or abusive behaviour towards a complainant in such instances, where such conduct harms, or may cause imminent harm to the safety, health or wellbeing of the complainant.

If any one of these forms of abuse is happening to someone, they need to take steps to remedy the situation immediately. All too often, it is too late and the victim has again become a victim of abuse and the results could be disastrous. The statistics available paint a gloomy picture and speak volumes about how many victims do not receive the help they need before it is too late.

The Department of Justice estimates that one out of every four South African women is a survivor of domestic violence. According to People Opposing Women Abuse (POWA) one in every six women who die in Gauteng is killed by an intimate partner. A survey conducted during 1999 revealed that 42.5% of women had experienced all forms of abuse and 60% of all cases of abuse were committed by partners, lovers or spouses.
A victim of abuse needs to take action in order to prevent further and repeated abuse and, most importantly, to mobilise the law to protect themselves before it is too late. The Act and the relevant organs of State cannot assist a victim until that victim speaks out.

By design, the Act is easily understandable and the remedies implemented by it are easily accessible by the public. Every magistrate’s court has a domestic violence section and will be able and willing to assist a complainant immediately. Once the complaint is lodged, the complainant will be required to complete a set of forms and an affidavit, with the assistance of the domestic violence officer. An interim protection is then granted to the complainant; the interim order is served and explained to the respondent as soon as possible in order for it to be enforced. The respondent is thereby warned not commit any acts of domestic violence against the complainant, with the threat of arrest and detention if he fails to comply.

A return date on which both parties will be required to appear at court to present their cases is allocated by the court, and both parties are warned to appear on that day. On the return date, the protection order will be made final; alternatively it may be amended or dismissed.

A protection order will not readily be dismissed by a court as the court has a duty to protect the public and specifically vulnerable groups of society. In a study undertaken for a publication in SA Crime Quarterly, it was revealed that the attitude of the magistrates who are delegated the task of either granting or dismissing these orders, is generally that the approach to be applied is “rather safe than sorry”.

That being said, magistrates are often left with no alternative but to hand down a “conservative decision” in instances where the details are “sketchy”. A complainant should therefore be well prepared when lodging the complaint and while it is not always possible or practical, under these circumstances it is in the complainant’s best interest to attempt to provide the court with evidence that the respondent has committed an act of domestic violence. This will ensure that the court is well informed of the circumstances giving rise to the application for the order, resulting in the complainant being granted the most competent order in order to afford them the most protection.

It has been recommended by the court that when reporting an incident of domestic violence and laying a complaint, the statement should include five essential elements:

1 A history of the abuse.

2 A description of the most recent incident of domestic violence.

3 Evidence of any medical attention sought by the complainant as a result of the current incident or previous incident/s, or any other evidence to show that an act of domestic violence had taken place.

4 The complainant's knowledge of any previous criminal record of the respondent.

5 The complainant's knowledge of any orders against the respondent with regards to family violence, protection orders etc.

This information would assist the court in providing a more informed and comprehensive service to a complainant. There are measures in place and people who are trained to assist you in a caring and sensitive manner. If you are being abused and subjected to domestic violence, do something about it now. There is no excuse for abuse!

If you are, or somebody you know is a victim of abuse, approach your local magistrates court or SAPS today. You can also get help, information and support from People Opposing Women Abuse (POWA).

ABOUT THE AUTHOR: Deborah Di Siena & Natalie Laurencik
Deborah Di Siena is a partner and Natalie Laurencik an associate at Eversheds. Both specialise in all aspects of family law.

Copyright Eversheds

Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

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