• Kevin Smith


Domestic Violence – Legal tools at your disposal

Throughout the world and in South Africa in particular, domestic violence remains one of the most wide spread Human rights abuses in society.

Women are generally the most affected by domestic violence and the scourge of domestic violence is but only on part of a more widespread societal curse in the form of gender based violence.

In terms of South African Law, the first port of call is the Domestic violence Act. The Act stipulates the types of violence as well as the various forms of violent conduct which is criminalized under the Act.

Our courts have always viewed domestic violence in a very serious light. Our Judiciary has displayed its attitude towards domestic violence in countless cases, such as:

S v Chapman 1997 (3) SA 341 (SCA) at 345A-B Court said the following:

‘Women in this country have a legitimate claim to walk peacefully on the streets to enjoy their shopping and their entertainment, to go and come from work, and to enjoy the peace and tranquillity of their homes without the fear, the apprehension and the insecurity which constantly diminishes the quality and enjoyment of their lives.’

In the Constitutional Court, Judge Sachs said in S v Baloyi 2000 (1) SACR 81 (CC):

All crime has harsh effects on society. What distinguishes domestic violence is its hidden, repetitive character and its immeasurable ripple effects on our society and, in particular, on family life. It cuts across class, race, culture and geography, and is all the more pernicious because it is so often concealed and so frequently goes unpunished.”

D Mnisi v The State (391/08) [2009] ZASCA 17 (19 March 2009) Boruchowitz AJA said:

“Domestic violence is rife and those who seek solutions to domestic and other problems through violence must be severely punished. Sentences imposed must send a deterrent message.”

In addition to the above, a recent article by Calitz in De Rebus 2020 (June) DR 9 entitled “Government’s response to COVID 19: has the Bill of Rights been given effect to?” which was referred to in the recent judgment of “ Beer and Others v Minister of Cooperative Governance and Traditional Affairs”, wherein the lockdown regulations were declared invalid and unconstitutional, the following apposite views are expressed:

COVID-19 is a fierce pandemic with numerous deaths across the world and unfortunately there is no date on our calendar, which we can circle, to indicate when the storm will finally pass. Yes, there are unprecedented hardships on social, political, health, and economic sectors, but even more so on basic human rights. These distresses are felt more harshly by the least protected in society who do not have access to adequate housing, clean running water, health care, food, or social security, which are all guaranteed basis human rights.

The protection of inherent human dignity is another constitutional right guaranteed in s 10 of the Constitution. While it goes without saying that the loss of employment or livelihood impact on one’s dignity; the rapidly increased rate of gender-based violence during lockdown raises concern and alarm. Women and men are beaten and abused by their partners while being compelled by law to stay inside their homes. They cannot run or escape and are eft helpless.

During a pandemic, government should never lose sight of basic human rights. In fact, it should prioritise their realization and protection of human rights in such a time even more so. In my view, the Bill of Rights has not been given effect to. A pro-human rights lockdown would have perhaps looked much different”

As such, our Judiciary’s stance on Domestic Violence cannot be questioned.

It is important to note that the abuse can take the form of verbal abuse, emotional abuse, physical abuse, sexual abuse, psychological abuse, economic/financial abuse, intimidation, harassment, stalking and damage to property, amongst other conduct.

Domestic violence manifests itself as a pattern of abusive behaviour (physical, mental and emotional) whereby one partner in a relationship utilizes abusive behaviour in order to exert, establish or maintain control and power over the other partner. This applies whether the partners are married or unmarried, living together or living apart.

The Domestic Violence Act was introduced to afford victims protection from abusive partners by creating obligations on law enforcement bodies, such as SAPS, to protect victims as far as possible. The Act extends the definition of domestic violence to include not only married women and their children, but also unmarried women, people in same sex relationships, mothers and their sons as well as all other people who share a common living space.

Where ones safety is threatened as a result of the abusive behaviour of a person you share a common living space with, one should look to apply for a protection order. The protection order is put in place to stop an abuser from committing further acts of abuse and can set certain conditions that prevent the abuser from harassing or abusing the victim. In certain circumstances, it can even be used to ensure that a partner who is in a stronger financial position to continue uphold their financial responsibilities so as not to hold the other partner at ransom.

Given that there are various aspects of abuse that can be protected under the Domestic Violence Act, it is imperative that an individual who is the victim of abuse gets legal advice on their situation in order for their lawyer to establish exactly how to get them the necessary protection they need and to assist them in following the necessary procedures.

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