SOUTH AFRICAN LAW COMMISSION

RESEARCH PAPER ON DOMESTIC VIOLENCE

APRIL 1999
 i

INTRODUCTION

The South African Law Commission was established by the South African Law Commission Act,
1973 (Act 19 of 1973).

The members of the Commission are -

Mr Justice I Mahomed (Chairperson)

Mr Justice P J J Olivier (Vice-Chairperson)
Adv J J Gauntlett SC
Madam Justice Y Mokgoro
Professor R T Nhlapo
Mr P Mojapelo
Ms Z Seedat

The members of the Project Committee for this investigation are -

Ms Z Seedat (Chairperson)
Ms H Combrinck
Ms J Fedler
Ms L Foster
Mr K W Kuhn
Ms L Makhura
Ms R Manjoo
Ms M Monakali
Ms M Motsei
Ms F I Stewart
Ms P N Zikalala

The researcher responsible for the investigation is Mr M F Palumbo.

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The Secretary is Mr W Henegan. The Commission's offices are on the 12th floor, Sanlam Centre,
corner of Andries and Schoeman Streets, Pretoria. Correspondence should be addressed to:

The Secretary
South African Law Commission
Private Bag X668
PRETORIA
0001

Telephone : (012) 322-6440

Fax : (012) 320-0936
E-mail : [email protected]
Internet :http://www.law.wits.ac.za/salc/salc.htm
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PREFACE

Domestic violence is a pervasive and frequently lethal problem that challenges society at every
level. Violence of this nature is often hidden from view and devastates its victims physically and
emotionally. Directly or indirectly it affects the quality of life of the whole society. Appropriate
legislation to reduce and prevent domestic violence is therefore of critical importance.

This Research Paper is the concluding stage of a process that has involved a number of stages.
During May1996 the Law Commission published an Issue Paper to elicit responses and to serve
as a basis for the Commission’s deliberations. During February 1997 the Law Commission
published a comprehensive Discussion Paper on Domestic Violence for general information and
comments that was aimed at testing public opinion on problems and solutions identified by the
Commission.

The Minister of Justice subsequently appointed a Project Committee on Domestic Violence

consisting of external experts to assist with the processing of comments received on the
Discussion Paper and to steer the process towards a Final Report and Draft legislation.

Due to Parliamentary time constraints, a draft Domestic Violence Bill emanating from the Project
Committee was introduced in Parliament by the Minister of Justice prior to finalisation of the
Commission’s report. The Domestic Violence Act 116 of 1998 largely corresponds to the Bill
drafted by the Project Committee, but it also contains provisions advanced by the Commission
and developed by the Justice Portfolio Committee with the assistance of the Commission’s
researcher and the Department of Justice.

On 27 November 1998 the Commission decided that a report should not be published for the
following reasons:

* The main aim of a report was to initiate legislation.

* Because legislation had already been enacted, the costs of publishing a report could not
be justified.
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The Commission, however, agreed that the report contained valuable research which could be
made available to interested persons and institutions. It was subsequently decided to adapt the
report and to make it available as a Research Paper in the Commission’s research series.

The Research Paper contains important conclusions which could form the basis of legislative and
other measures to alleviate the plight of victims of domestic violence. It is hoped that this
Research Paper will provide relevant background information for any further development of
legislation addressing the problem of domestic violence.
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CONTENTS

Page

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
PREFACE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
SOURCES WITH MODE OF CITATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiv

1. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

2. BACKGROUND
2.1 Origin of the investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.2 Issue Paper 2 on Family Violence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.3 Discussion Paper 70 on Domestic Violence . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.4 Project Committee on Domestic Violence . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.5 Workshops and briefings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.6 Research Paper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

3. A BRIEF OVERVIEW OF THE ACT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

4. CONSTITUTIONAL AND INTERNATIONAL

HUMAN RIGHTS JURISPRUDENCE
4.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.2 Convention on the Elimination of All Forms of Discrimination
Against Women . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.3 Declaration on the Elimination of Violence Against Women . . . . . . . . . . . . 12
4.4 Beijing Declaration and Platform of Action . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.5 Report by Special Rapporteur on Violence Against Women . . . . . . . . . . . . 14
4.6 Evaluation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.7 International law and the interpretation of the Bill of Rights . . . . . . . . . . . . 15
4.8 Constitutional jurisprudence: The right to equality . . . . . . . . . . . . . . . . . . . 15
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4.9 The right to freedom from violence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

5. PROBLEMS IDENTIFIED IN ISSUE PAPER 2

ON FAMILY VIOLENCE
5.1 The audi alteram partem rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
A. Excerpt from Issue Paper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
B. Problem analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
C. Comparative survey of laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
D. Recommendation 1 in Discussion Paper 70 . . . . . . . . . . . . . . . . . . . 33
E. Submissions on Recommendation 1 in Discussion Paper 70 . . . . . . . 33
F. Evaluation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

5.2 Applicability of the Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

A. Excerpt from Issue Paper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
B. Problem analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
C. Comparative survey of laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
D. Recommendation 2 in Discussion Paper 70 . . . . . . . . . . . . . . . . . . . 50
E. Submissions on Recommendation 2 in Discussion Paper 70 . . . . . . . 53
F. Evaluation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

5.3 Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
A. Excerpt from Issue Paper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
B. Problem analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
C. Comparative survey of laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
D. Recommendation 3 in Discussion Paper 70 . . . . . . . . . . . . . . . . . . . 58
E. Submissions on Recommendation 3 in Discussion Paper 70 . . . . . . . 58
F. Evaluation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

5.4 Legal representation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

A. Excerpt from Issue Paper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
B. Problem analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
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C. Recommendation 4 in Discussion Paper 70 . . . . . . . . . . . . . . . . . . . 61

D. Submissions on Recommendation 4 in Discussion Paper 70 . . . . . . . 62
E. Evaluation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

5.5 Hearing of oral evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

A. Excerpt from Issue Paper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
B. Problem analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
C. Comparative survey of laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
D. Recommendation 5 in Discussion Paper 70 . . . . . . . . . . . . . . . . . . . 67
E. Submissions on Recommendation 5 in Discussion Paper 70 . . . . . . . 68
F. Evaluation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69

5.6 Service of interdicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

A. Excerpt from Issue Paper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
B. Problem analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
C. Comparative survey of laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
D. Recommendation 6 and Request for Comment 1
in Discussion Paper 70 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
E. Submissions on Recommendation 6 and Request for Comment 1
in Discussion Paper 70 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
F. Evaluation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77

5.7 Duration of interdicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

A. Excerpt from Issue Paper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
B. Problem analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
C. Comparative survey of laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
D. Recommendation 7 in Discussion Paper 70 . . . . . . . . . . . . . . . . . . . 83
E. Submissions on Recommendation 7 in Discussion Paper 70 . . . . . . . 83
F. Evaluation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84

5.8 Role of the South African Police Service . . . . . . . . . . . . . . . . . . . . . . . . . . 87

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A. Excerpt from Issue Paper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87

B. Problem analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
C. Comparative survey of laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
D. Recommendation 8 and Request for Comment 2
in Discussion Paper 70 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
E. Submissions on Request for Comment 2 in Discussion Paper 70 . . . 94
F. Evaluation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95

5.9 Review, appeal and bail . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98

A. Excerpt from Issue Paper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
B. Problem analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
C. Comparative survey of laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
D. Recommendation 9 in Discussion Paper 70 . . . . . . . . . . . . . . . . . . 101
E. Submissions on Recommendation 9 in Discussion Paper 70 . . . . . . 101
F. Evaluation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102

5.10 Definition of domestic violence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104

A. Excerpt from Issue Paper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
B. Problem analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
C. Comparative survey of laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
D. Recommendation 10 in Discussion Paper 70 . . . . . . . . . . . . . . . . . 114
E. Submissions on Recommendation 10 in Discussion Paper 70 . . . . . 115
F. Evaluation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118

5.11 24 - hour service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120

A. Excerpt from Issue Paper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
B. Problem analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
C. Recommendation 11 in Discussion Paper 70 . . . . . . . . . . . . . . . . . 120
D. Submissions on Recommendation 11 in Discussion Paper 70 . . . . . 121
E. Evaluation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
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5.12 Penalties under the Act; sentencing options;

rehabilitation and counselling for perpetrators of violence . . . . . . . . . . . . . 123
A. Excerpt from Issue Paper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
B. Problem analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
C. Comparative survey of laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126
D. Recommendation 12 in Discussion Paper 70 . . . . . . . . . . . . . . . . . 126
E. Submissions on Recommendation 12 in Discussion Paper 70 . . . . . 127
F. Evaluation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128

5.13 Exclusion of the respondent from the matrimonial home . . . . . . . . . . . . . . 130

A. Excerpt from Issue Paper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
B. Problem analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
C. Comparative survey of laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
D. Recommendation 13 in Discussion Paper 70 . . . . . . . . . . . . . . . . . 136
E. Submissions on Recommendation 13 in Discussion Paper 70 . . . . . 137
F. Evaluation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140

5.14 Application by applicant for amending or setting aside

of the interdict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
A. Excerpt from Issue Paper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
B. Problem analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
C. Comparative survey of laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
D. Recommendation 14 in Discussion Paper 70 . . . . . . . . . . . . . . . . . 143
E. Submissions on Recommendation 14 in Discussion Paper 70 . . . . . 144
F. Evaluation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144

6. CONCERNS NOT DEALT WITH IN

ISSUE PAPER 2 ON FAMILY VIOLENCE
6.1 The State as party to criminal prosecutions . . . . . . . . . . . . . . . . . . . . . . . . 146
A. Problem analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
B. Comparative survey of laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148
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C. Recommendation 15 in Discussion Paper 70 . . . . . . . . . . . . . . . . . 149

D. Submissions on Recommendation 15 in Discussion Paper 70 . . . . . 150
E. Evaluation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152

6.2 Warrant of arrest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155

A. Problem analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
B. Comparative survey of laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
C. Recommendation 16 in Discussion Paper 70 . . . . . . . . . . . . . . . . . 158
D. Submissions on Recommendation 16 in Discussion Paper 70 . . . . . 158
E. Evaluation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161

6.3 Terms of the order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163

A. Problem analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163
B. Comparative survey of laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164
C. Recommendation 17 in Discussion Paper 70 . . . . . . . . . . . . . . . . . 170
D. Submissions on Recommendation 17 in Discussion Paper 70 . . . . . 172
E. Evaluation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173

6.4 Temporary maintenance, custody and access orders . . . . . . . . . . . . . . . . . 174

A. Problem analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174
B. Comparative survey of laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
C. Recommendation 18 in Discussion Paper 70 . . . . . . . . . . . . . . . . . 180
D. Submissions on Recommendation 18 in Discussion Paper 70 . . . . . 180
E. Evaluation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182

6.5 Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185

A. Problem analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
B. Comparative survey of laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
C. Recommendation 19 in Discussion Paper 70 . . . . . . . . . . . . . . . . . 186
D. Submissions on Recommendation 19 in Discussion Paper 70 . . . . . 186
E. Evaluation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187
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6.6 Open court or behind closed doors? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188

A. Problem analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188
B. Comparative survey of laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189
C. Recommendation 20 in Discussion Paper 70 . . . . . . . . . . . . . . . . . 189
D. Submissions on Recommendation 20 in Discussion Paper 70 . . . . . 189
E. Evaluation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190

6.7 Obligation to report ill-treatment of children . . . . . . . . . . . . . . . . . . . . . . . 191

A. Problem analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191
B. Comparative survey of laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
C. Request for comment 3 in Discussion Paper 70 . . . . . . . . . . . . . . . 193
D. Submissions on Request for Comment 3 in Discussion Paper 70 . . 194
E. Evaluation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195

6.8 Marital rape . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196

A. Problem analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196
B. Recommendation 21 in Discussion Paper 70 . . . . . . . . . . . . . . . . . 197
C. Submissions on Recommendation 21 in Discussion Paper 70 . . . . . 198
D. Evaluation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199

6.9 Consultation between Magistrate / Judge

and Family Advocate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200
A. Problem analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200
B. Recommendation 22 in Discussion Paper 70 . . . . . . . . . . . . . . . . . 200
C. Submissions on Recommendation 22 in Discussion Paper 70 . . . . . 200
D. Evaluation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201

6.10 Renaming the Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202

A. Comparative survey of laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202
B. Recommendation 23 in Discussion Paper 70 . . . . . . . . . . . . . . . . . 203
C. Submissions on Recommendation 23 in Discussion Paper 70 . . . . . 203
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D. Evaluation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204

6.11 Criminal justice response to domestic violence . . . . . . . . . . . . . . . . . . . . . 205

A. Problem analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205
B. Comparative survey of laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207
C. Recommendation 24 in Discussion Paper 70 . . . . . . . . . . . . . . . . . 209
D. Submissions on Recommendation 24 in Discussion Paper 70 . . . . . 209
E. Evaluation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210

6.12 Victim support . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212

A. Problem analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212
B. Submissions on victim support . . . . . . . . . . . . . . . . . . . . . . . . . . . 213
C. Evaluation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213

7. CONCERNS NOT DEALT WITH IN

DISCUSSION PAPER 70 ON DOMESTIC VIOLENCE
7.1 Preamble in domestic violence legislation . . . . . . . . . . . . . . . . . . . . . . . . . 215
A. Problem analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215
B. Comparative survey of laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215
C. Evaluation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217

7.2 Duty to inform victim of rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218

A. Problem analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218
B. Comparative survey of laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218
C. Evaluation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220

7.3 Arrest without warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221

A. Problem analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221
B. Comparative survey of laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221
C. Evaluation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222
 xiii

7.4 Confidentiality of applicant’s address . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223

A. Problem analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223
B. Comparative survey of laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223
C. Evaluation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224

7.5 Seizure of arms and dangerous weapons . . . . . . . . . . . . . . . . . . . . . . . . . . 225

A. Problem analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225
B. Comparative survey of laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226
C. Evaluation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227

7.6 Notification of police station . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228

A. Problem analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228
B. Comparative survey of laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228
C. Evaluation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229

7.7 Penalties against law enforcement agents . . . . . . . . . . . . . . . . . . . . . . . . . 230

A. Problem analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230
B. Comparative survey of laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230
C. Evaluation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231

8. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233

ANNEXURE A: Prevention of Family Violence Act 133 of 1993 . . . . . . . . . . . . . . 234

ANNEXURE B: Persons who and institutions which reacted to
Discussion Paper 70 on Domestic Violence . . . . . . . . . . . . . . . . . . 239
 xiv

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the Family Violence Interdict LLM Research
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Prevention of Family Violence Act” 1996 South
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Australian Capital Territory Report on
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Gesinsgeweld, 1993: Noodsaaklik, Tydig en
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Australian Capital Territory Report on
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Paper No 3: Report on A Survey of Women
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 xvi

Women’s Support Centre in Terms of the

Prevention of Family Violence Act 133 of 1993
Cape Town: Nicro 1995

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Court Day for Women 1997

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out of the Fourth UN Women’s Conference,
Beijing 1995 3

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1998

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Act: Innovation or Violation?” 1994 De Rebus
212

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Interpreting the Bill of Rights 1994 South
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Court Practice Kenwyn: Juta 1994
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Through the Prevention of Family Violence Act
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Operation” 1995 South African Law Journal
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1996

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Die Laaste Spykers in die Doodkis” 1994 South
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Family Law, Domestic Violence, and
Occupation of the Family Home Law Com. No.
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Laws of Australia J A Riordan (Editor in Chief) The Laws of

Australia (Title 17 Family Law) Sydney: the
Law Book Company 1995

Lehmann 1997 Sajhr K Lehmann “Rutenberg V Rutenberg” 1997

South African Journal on Human Rights 154

Le Roux 1997 De Jure J Le Roux “Die Wet op die Voorkoming Van

Gesinsgeweld: ‘n Evaluasie” 1997 De Jure 301

T Loenen “The Equality Clause in the South

African Constitution: Some Remarks from a
 xix

Comparative Perspective” 1997 South African

Journal on Human Rights 401

C Murray & F Kaganas “Law and Women’s

Rights in South Africa: An Overview” in
Murray Et Al Gender and the New South
African Legal Order Kenwyn: Juta 1994 125

National Empowerment Policy Paper: Annexure

on Governments Departments’ Beijing Line
Ministry Commitments 1996

National Institute of Justice Project to Develop

A Model Anti-stalking Code for States
Washington: Us Department of Justice 1993

Novitz T Novitz “Interdicts in the Magistrates’ Courts:

An Analysis of the Content and Implementation
of the Prevention of Family Violence Act”,
Document Produced for the Law, Race and
Gender Project At the University of Cape
Town, September 1994

H N Pretorius Burgerlike Prosesreg in die

Landdroshowe Vol II Durban: Butterworth
1986

Sinclair J D Sinclair The Law of Marriage Vol I

Kenwyn: Juta 1996
 xx

S Stanton & M Lochrenberg Justice for Sexual

Assault Survivors? 1995

State Responses Women, Law & Development International

State Responses to Domestic Violence -
Current Status and Needed Improvements
Washington, DC: the Institute for Women, Law
& Development 1996

Stewart 1994 De Rebus F Stewart “Family Violence Act Causes

‘Nightmarish’ Problems” 1994 De Rebus 721

Van Dokkum 1996 Acta Juridica N Van Dokkum “The Statutory Obligation to
Report Child Abuse and Neglect” 1996 Acta
Juridica 163

Van Rensburg 1994 the Magistrate J M Van Rensburg “Interdikte in die

Landdroshof met Betrekking tot Gesinsgeweld”
1994 the Magistrate 94

International Instruments

Beijing Declaration and Platform for Action UN

Doc A/Conf 177/20 (Adopted by the Fourth
World Conference on Women and
recommended to the UN General Assembly by
the Committee on the Status of Women on 7
October 1995).
 xxi

Convention on the Elimination of All Forms of

Discrimination Against Women UN Doc
A/RES/34/180 1980 (Adopted for signature and
ratification and accession by the UN General
Assembly on 18 December 1979 and entered
into force on 3 September 1981.

Convention on the Elimination of All Forms of

Discrimination Against Women: First South
African Report 1997

Declaration on the Elimination of Violence

Against Women GAOR 48th Session, 23
February 1994, UN Doc A/RES/48/104/1994

General Recommendation 19 (11th Session

1992) UN Doc CEDAW/C/1991/L/1/Add.15
1992

Preliminary Report Submitted by the Special

Rapporteur on Violence Against Women, its
Causes and Consequences UN Doc
E/CN.4/1995/42, 22 November 1994

Un Framework United Nations Economic and Social Council

(Commission on Human Rights) Report of the
Special Rapporteur on Violence Against
Women, its Causes and Consequences - A
Framework for Model Legislation on Domestic
Violence UN 1996
 xxii

Cases

Administrator, Transvaal v Traub 1989 4 SA

731 (A)

Brink v Kitshoff 1996 6 BCLR 752 (CC)

Casserley v Stubbs 1916 TPD 312

Fraser v Children’s Court , Pretoria North 1997

2 BCLR 153 (CC)

Harksen v Lane 1997 11 BCLR 1489 (CC)

S v J 1998 2 SA 984 (SCA)

President of the Republic of South Africa v

Hugo 1997 6 BCLR 708 (CC)

Prinsloo v Van der Linde 1997 6 BCLR 759

(CC)

Rutenberg case Rutenberg v Magistrate, Wynberg 1997 4 SA

735 (C)

Herholdt v Rand Debt Collecting Co 1965 3 SA

752 (T)

Jackson v The State: Unreported: Case No

35/97: Supreme Court of Appeal
xxiii

Knox D’Arcy v Jamieson 1996 4 SA 348 (A)

Menell, Jack Hyman & Co v Geldenhuys 1972

1 SA (C)

Minister van Wet en Orde v Dipper 1993 3 SA

591 (A)

R v Limbada 1953 2 SA 368 (N)

Robinson v Rossi 1996 2 All SA 349 (W)

S v Chaplin 1996 1 SA 191 (C)

S v D 1992 1 SA 513 (Nm)

S v M 1996 2 SACR 127 (T)

S v Makwanyane 1995 6 BCLR 665 (CC)

S v Zuma 1995 2 SA 642 (CC)

The Western Countries Railway Co v Windsor

and Annapolis Railway Co 7 AC 188

Twayie v Minister van Justisie 1986 2 SA 101

(O)

Velasquez Rodriguez Case Judgment of 27 July

1988, Inter-American Court of Human Rights,
Ser C, Vol 4, par 166
 xxiv

Visagie v State President 1989 3 SA 859 (A)

Williamson v Helleux 1978 2 SA 348 (T)

Legislation

Alaska Stat. quoted in ALRI Report for

Discussion No 15

British Columbia Domestic Violence Legislation

quoted in ALRI Report for Discussion No 15

Child Care Act 74 of 1983

Constitution, 1993 Constitution of the Republic of South Africa

Act 200 of 1993

Constitution, 1996 Constitution of the Republic of South Africa

Act 108 of 1996

Criminal Procedure Act 56 of 1955

Criminal Procedure Act 51 of 1977

Criminal Procedure Second Amendment Act 75

of 1995

Criminal Procedure Second Amendment Act 85

of 1997
 xxv

Domestic Violence Act 1986 (Australian

Capital Territory)

Domestic Violence Act 86 of 1995 (New

Zealand)

Family Law Act 1996 (England)

Kentucky Revised Statutes (USA) quoted in

submission to the Commission

Legal Aid Act 22 of 1969

Magistrates’ Courts Act 32 of 1944

Maintenance Act 23 of 1963

Minnesota Domestic Abuse Act, Minn. Stat.

518B.01, 1992

Missouri Revised Statutes, Chap 455

Model Code National Council of Juvenile and Family Court

Judges Model Code on Domestic and Family
Violence Nevada: National Council of Juvenile
and Family Court Judges 1994

New Jersey Prevention of Domestic Violence

Act of 1991
 xxvi

Nova Scotia Proposed Domestic Violence

Legislation Quoted in ALRI Report for
Discussion No 15

Pennsylvania Protection From Abuse Act

Saskatchewan Victims of Domestic Violence

Act S.S. 1994, c. V-6.02

Supreme Court Act 59 of 1959

The Act Prevention of Family Violence Act 133 of 1993

The Regulations Prevention of Family Violence Regulations,

1993

Trinidad and Tobago Domestic Violence Act,

1991

Victims of Domestic Violence Act S.S. 1994, c. V-6.02 (Saskatchewan) quoted in ALRI
Report for discussion No 15
1. INTRODUCTION

1.1 Domestic and family violence is a pervasive and frequently lethal problem that challenges
society at every level. Violence in families is often hidden from view and devastates its
victims physically, emotionally, spiritually and financially. It threatens the stability of the
family and negatively impacts on all family members, especially the children who learn
from it that violence is an acceptable way to cope with stress or problems or to gain
control over another person. It violates our communities’ safety, health, welfare, and
economies . . ..

The above introductory remarks by the National Council of Juvenile and Family Court Judges
(USA)1 are an accurate reflection of the effects of domestic violence on society. Many different
societies and their legal systems have grappled with the problem of domestic violence. This phase
often coincides with a democratization process when issues of gender inequality are being
addressed. It is therefore to be expected that at this point in South Africa’s political and
constitutional development, domestic violence is demanding the attention of law-makers and
politicians.

1.2 Although victims of domestic violence are certainly not limited to women, the majority
of victims of such violence are women. There are no reliable statistics on the extent of violence
against women in South Africa, but, as the 1995 Human Rights Watch Report2 states:
What is certain . . . is that South African women, living in one of the most violent
countries in the world, are disproportionately likely to be victims of that violence.

1.3 The South African Government has committed itself to the eradication of violence against
women. It has stated3 that it intends to comply with the provisions of the Beijing Platform4 and

1
National Council of Juvenile and Family Court Judges Model Code on Domestic and
Family Violence Nevada: National Council of Juvenile and Family Court Judges 1994 v.
2
Human Rights Watch/Africa Violence Against Women in South Africa - State Response
to Domestic Violence and Rape New York: Human Rights Watch 1995 44.
3
National Empowerment Policy Paper: Annexure on Governments Departments' Beijing
Line Ministry Commitments 1996.
4
Beijing Declaration and Platform for Action UN Doc A/Conf 177/20 (Adopted by the
Fourth World Conference on Women and recommended to the UN General Assembly by the
Committee on the Status of Women on 7 October 1995).
 2

has ratified the Convention on the Elimination of All Forms of Discrimination Against Women5
during 1995. It has entrenched the rights to gender equality6 and freedom from violence7 in the
final Constitution, 1996. The Department of Justice has stated in Justice Vision 2000,8 a strategy
document for transforming the administration of justice, that it aims to achieve a criminal justice
policy that addresses the special needs of vulnerable groups such as women and children. On 25
November 1996, International Day of No Violence Against Women, the Minister and the Deputy
Minister of Justice launched an ongoing public campaign on preventing violence against women.
The campaign was developed as a result of deep concern for the endemic problem of violence
against women in South Africa.9

1.4 Appropriate legislation to give effect to and reinforce the aforementioned international and
national initiatives is of critical importance. It is clear that the law cannot be employed as a
panacea for the ills of a complex social phenomenon such as domestic violence. However, when
victims of domestic abuse do turn to the law for protection, the law should be effective and
efficient in its response. Having regard to the Constitution of South Africa and the international
commitments and obligations of the State towards ending violence against women and children,
victims of domestic violence should be afforded the maximum protection by ensuring that the
substance and procedures of domestic violence legislation are well tailored to the needs of those
suffering abuse in a domestic context.

5
Convention on the Elimination of All Forms of Discrimination Against Women UN Doc
A/RES/34/180 1980. The Convention was adopted for signature and ratification and accession
by the UN General Assembly on 18 December 1979 and entered into force on 3 September 1981.
6
Section 9 of the Constitution of the Republic of South Africa Act 108 of 1996.
7
Section 12(1)(c) of the Constitution, 1996.
8
Department of Justice Justice Vision 2000 1997 58.
9
Department of Justice Report Back on the Open Court Day for Women 1997 1.
 3

2. BACKGROUND

2.1 Origin of the investigation

2.1.1 During July 1995 the Commission received representations from attorneys Pincus, Matz,
Marquard and Hugo-Hamman to the effect that the Prevention of Family Violence Act 133 of
1993 (“the Act”) represents a radical and unjustified departure from the audi alteram partem
principle. It is argued that it is a fundamental principle of our law and not one which should be
abandoned under any circumstances. At most, particular circumstances may justify a temporary
suspension of the principle. It is for this reason that the High Court has traditionally insisted that
applicants make out a proper case for urgency and explain to the Court why such order should
be granted without any notice to the other side.

2.1.2 It is pointed out that the consequences of granting orders in terms of the Act are often
dire. Respondents may be excluded from their homes, prohibited from seeing their children or
having access to their possessions. Moreover, there have been many examples of abuse of the Act
in order to gain the upper hand in a matrimonial conflict.

2.1.3 The attorneys submit that the Act is in need of urgent revision to provide for a procedure
more in keeping with traditional applications such as that orders should not be granted without
notice to the respondent unless it is evident that it is justified in the circumstances and where
interdicts are granted ex parte, they should be interim interdicts as normally provided for.

2.1.4 After canvassing the views of the Department of Justice, the Chief Family Advocate and
the various Chief Magistrates on the matter, the Commission was convinced that the issue of
domestic violence warranted further investigation and during February 1996 the inclusion of an
investigation into domestic violence in the Commission’s programme was approved.
 4

2.2 Issue Paper 2 on Family Violence

In order to facilitate a focussed debate, Issue Paper 2 on Family Violence was published at the
beginning of July 1996. The closing date for comments was 15 August 1996, but at the request
of several role players the closing date was extended until 31 August 1996. Issue Paper 2 on
Family Violence was the first issue paper on a matter in which people at all levels of society had
a direct interest. The problems identified in the Issue Paper are canvassed in Chapter 5.

2.3 Discussion Paper 70 on Domestic Violence10

During February 1997 a comprehensive Discussion Paper on Domestic Violence was published
for general information and comment. The closing date for comments on Discussion Paper 70
was 30 May 1997. Further research and comments received on Issue Paper 2 on Family Violence
were assimilated in the Discussion Paper. Additional concerns not dealt with in Issue Paper 2 on
Family Violence were identified and investigated and are revisited in Chapter 6. Discussion Paper
70 on Domestic Violence also contained draft legislation.

2.4 Project Committee on Domestic Violence

2.4.1 As suggested by Bonthuys,11 it would be helpful for the Law Commission to co-operate
with NGO's which have experience in working with the problem and can provide a broader insight
into what victims of domestic abuse really need. Non-legal persons such as health and welfare
workers may also be able to provide much-needed expertise and insights into possible ways to
approach the problem.

2.4.2 During September 1997 the Minister of Justice appointed a Project Committee on
Domestic Violence consisting of experts drawn from the community to assist with the processing

10
South African Law Commission Discussion Paper 70 on Domestic Violence ISBN 0-
621-17650-8 February 1997.
11
E Bonthuys "The Solution? Project 100 - Domestic Violence" 1997 SALJ 371 388.
 5

of comments received on Discussion Paper 70 and to steer the process towards a final report and
draft legislation. The members of the Project Committee are listed on page (i).

2.5 Workshops and briefings

Members of the Project Committee and the researcher participated in a number of workshops and
briefing sessions during which public opinion was gleaned on preliminary proposals for draft
domestic violence legislation. The researcher participated in the following noteworthy
workshops:

* Briefing of Chief Magistrates: 21 February 1998

* Centre for Legal Services (University of Zululand) and National Human Rights Trust
workshop on domestic violence: 24 April 1997
* Commission on Gender Equality information and evaluation workshop: 6 May 1997
* Parliamentary Portfolio Committee on Justice public hearings on gender issues: 6 June
1997
* Institute for Multi-Party Democracy focus meeting on violence against women: 11 June
1997
* SADC conference on the prevention of violence against women: 5 - 8 March 1998
* Parliamentary Portfolio Committees on Justice and on the Improvement of the Quality of
Life and Status of Women public hearings on gender issues: 20 March 1998
* Natal Women's Resource Centre workshop on gender policy considerations: 30 April
1998
* Malibongwe gender policy workshop: 6 - 7 May 1998

2.6 Research Paper

2.6.1 Due to Parliamentary time constraints, a draft Domestic Violence Bill emanating from the
Project Committee was introduced in Parliament by the Minister of Justice prior to finalisation
of the Commission’s report. The Domestic Violence Act 116 of 1998 largely corresponds to the
Bill drafted by the Project Committee, but it also contains provisions advanced by the Commission
 6

and developed by the Justice Portfolio Committee with the assistance of the researcher and the
Department of Justice.

2.6.2 On 27 November 1998 the Commission decided that a report should not be published for
the following reasons:

* The main aim of a report was to initiate legislation.

* Because legislation had already been enacted, the costs to publish a report could not be
justified.

The Commission, however, agreed that the report contained valuable research which could be
made available to interested persons and institutions. It was subsequently decided to adapt the
report and to make it available as a Research Paper in the Commission’s research series.
 7

3. A BRIEF OVERVIEW OF THE ACT

3.1 The Act and the Regulations made in terms of section 7 thereof (“the Regulations”) came
into operation on 1 December 1993. As stated by Thring J in Rutenberg v Magistrate,
Wynberg, and Another12, one of the purposes sought to be achieved by the legislature “. . . was
the laudable provision of a speedy, inexpensive, easily accessible and effective remedy for persons
who find themselves threatened by violence within their family circle.”

3.2 Section 2(1) of the Act provides that any party to a marriage13 (the applicant) or any other
party who has a material interest in the matter on behalf of the applicant, may apply to a judge or
magistrate in chambers for an interdict against the other party to the marriage (the respondent)
in which the latter is prohibited from -
(a) assaulting or threatening the applicant or a child living with the parties or with
either of them [section 2(1)(a)];
(b) entering the matrimonial home or other place where the applicant is resident, or
a specified part of such home or place or a specified area in which such home or
place is situated [section 2(1)(b)];
(c) preventing the applicant or a child who ordinarily lives in the matrimonial home
from entering and remaining in the matrimonial home or a specified part of the
matrimonial home [section 2(1)(c)]; or
(d) committing any other act specified in the interdict.

3.3 "Party to a marriage" is defined in section 1(2) as including a man and a woman who are
or were married to each other according to any law or custom and also a man and woman who
ordinarily live or lived together as husband and wife, although not married to each other.

3.4 The application must be made by way of affidavit which must state the facts upon which
the application is based and the nature of the order applied for [regulation 2(1)]. Supporting

12
1997 4 SA 735 (C) 750.
13
Although the Act is gender-neutral and family violence is sometimes perpetrated by
women, the reality is that women and children are most often the victims of abuse.
 8

affidavits by persons who have knowledge of the matter may accompany the application
[regulation 2(2)], which must be lodged with the registrar or clerk of the court, who must submit
it to a judge or magistrate in chambers [regulation 2(3)].

3.5 In granting the interdict the judge or magistrate must make the following orders [section
2(2)]:
(a) A warrant for the arrest of the must be authorised, but it must be suspended on
such conditions regarding the compliance with the interdict as the judge or
magistrate sees fit [section 2(2)(a), (b)].
(b) The respondent must be advised that he may, after 24 hours’ notice to the
applicant and the court concerned, apply for the amendment or setting aside of the
interdict [section 2(2)(c)].

3.6 The interdict and orders have force only after service thereof on the respondent [section
2(3)]. The manner of service is prescribed in regulations 3 and 4. After service has been effected,
the applicant must be furnished with a certified copy of the interdict and the original warrant of
arrest to the applicant [regulation 3(2) and 4(7)].

3.7 If the applicant requires the execution of the warrant he or she must present an affidavit
to a peace officer in which it is stated that the respondent has breached one or more of the
conditions of suspension of the warrant [section 3(1)]. After the respondent has been arrested,
he may only be released if his or her release is ordered by a judge or a magistrate. The respondent
must, however, be brought before a judge or magistrate as soon as possible but not later than 24
hours after his or her arrest [section 3(2)]. A summary inquiry is then held by a judge or
magistrate into the alleged breach of the conditions of the order suspending the warrant [section
3(4)]. If the respondent contravened the interdict he could be sentenced to a fine (no maximum
is specified) or up to 12 months' imprisonment or both [section 6].

3.8 Section 4 of the Act further provides for an obligation to report the ill-treatment of
children. Any person who examines, treats, attends to, advises, instructs or cares for any child
in circumstances which ought to give rise to a reasonable suspicion that such child has been ill-
 9

treated, or suffers from any injury the probable cause of which was deliberate, must immediately
report such circumstances to a police official or a commissioner of child welfare or a social
worker referred to in section 1 of the Child Care Act 74 of 1983.

3.9 The Act is duplicated in “Annexure A”.

 10

4. CONSTITUTIONAL AND INTERNATIONAL HUMAN RIGHTS

JURISPRUDENCE

4.1 Introduction

4.1.1 The Act came into operation before the enactment of the Constitution, 1993 and therefore,
in reassessing this legislation, it is necessary to examine the potential influence of the Constitution,
199614 - most notably the Bill of Rights.15 A consideration of South Africa’s changed position
in terms of international law is also essential.

4.1.2 Prior to the adoption of the Constitution, 1993, international law did not play a prominent
role in the advancement of human rights in South Africa.16 The Constitution, 1996, however
clearly indicates that international law should be accorded a more significant position in South
African law.17

4.1.3 During the last decade gender-based violence has received increasing attention in
international human rights law,18 with concomitant emphasis on the determination of state

14
This Chapter refers to the provisions of the Constitution, 1996 unless the contrary is
expressly indicated.
15
Several fundamental rights in the Bill of Rights are significant in the context of domestic
violence. This chapter focuses on the right to freedom from violence (section 12(1)(c)), and the
right to equality (section 9) - although, for example, the right to dignity as entrenched in section
10 may also be significant in the context of prevention of domestic violence. From the
perpetrator’s point of view, different rights (for example, the right to access to justice in section
34) should be considered.
16
See generally J Dugard “The Role of International Law in Interpreting the Bill of Rights”
1994 SAJHR 208-210; H Combrinck “Positive State Duties to Protect Women From Violence:
Recent South African Developments” 1998 Human Rights Quarterly [In press].
17
See ss 39(1)(b), 231, 232 and 233 of the Constitution, 1996.
18
See generally J Fitzpatrick “The Use of International Human Rights Norms to Combat
Violence Against Women” in R Cook (ed) Human Rights of Women: National and International
 11

obligations to address gender-based violence.19 International human rights law may therefore be
of specific significance in determining the nature of the duties of the South African government
to address gender-based violence - including domestic violence.20 In addition, international law
may also be important in the interpretation of the fundamental rights entrenched in the Bill of
Rights.

4.2 Convention on the Elimination of All Forms of Discrimination Against Women21

4.2.1 The Convention on the Elimination of All Forms of Discrimination Against Women
prohibits all discrimination based on gender or sex “which has the effect or purpose of impairing
or nullifying the recognition, enjoyment or exercise by women... of human rights and fundamental
freedoms in the political, economic, social, cultural, civil or any other field”.22 The South African
government ratified the Convention in 1995,23 and in terms of international law is therefore bound
by the obligations created by it.24 The government recently prepared its first report for submission

Perspectives 1994 532-571.

19
This is illustrated by the provisions of the documents discussed infra.
20
While it is acknowledged that both men and women are victims of domestic violence,
it should also be recognised that the vast majority of victims are women. It is therefore
considered appropriate to include international documents which specifically focus on violence
against women.
21
UN Doc A/RES/34/180 (1980). The Convention was adopted for signature and
ratification and accession by the UN General Assembly on 18 December 1979 and entered into
force on 3 September 1981.
22
Article 1.
23
Ratification took place on 15 December 1995.
24
Ian Brownlie Principles of Public International Law 4 ed 1990 12. Section 231 of the
1996 Constitution deals with international agreements and sets out in subsection (2) that an
international agreement binds the Republic after it has been approved by resolution in both the
National Assembly and the National Council of Provinces.
 12

to the Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW)
as required under the Convention.25

4.2.2 Although at least six articles of the Convention relate to violence against women in an
indirect manner,26 the document does not expressly mention violence against women. Due to
pressure exerted by women's organizations,27 CEDAW adopted a general recommendation and
comments explaining the interpretation of the Convention in order to cover violence against
women and setting out the nature of government obligations.28

4.2.3 General Recommendation Number 19 states that the general prohibition of gender
discrimination includes “gender-based violence, that is, violence that is directed against a woman
because she is a woman or that affects women disproportionately”. CEDAW confirmed that
violence against women constitutes a violation of women’s human rights (including the rights to
life, liberty and security of the person, equal protection under the law and equality in the family),
and noted the following:

States may also be responsible for private acts if they fail to act with due diligence to
prevent violations of rights or to investigate and punish acts of violence, and to provide
compensation.29

25
Convention on the Elimination of All Forms of Discrimination Against Women: First
South African Report (1997). This report has been criticised for its failure to acknowledge the
exact nature of state obligations relating to violence against women incurred under the
Convention - see Masimanyane CEDAW Working Group NGO Shadow Report to CEDAW 1998
16.
26
Articles 2, 3, 6, 11, 12, and 16. See Fitzpatrick 532.
27
F Kathree “Convention on the Elimination of All Forms of Discrimination Against
Women” 1995 SAJHR 426.
28
General Recommendation 19 (11th session, 1992), UN Document
CEDAW/C/1991/L/1/Add.15 1992.
29
General Recommendation 19 (11th session, 1992), UN Document
CEDAW/C/1991/L/1/Add.15 1992 3.
 13

4.2.4 CEDAW also recommended that in order to fulfill their duties under the Convention,
states must take all measures necessary to provide effective protection to women, including
comprehensive legal, preventive and other measures.30

4.3 Declaration on the Elimination of Violence Against Women31

4.3.1 This Declaration, adopted by the UN General Assembly in 1994,32 defines the term
“violence against women” to include “any act of gender-based violence that results in, or is likely
to result in, physical, sexual or psychological harm or suffering to women... whether occurring
in private or public life”.33

4.3.2 Article 4 of the Declaration declares that states should condemn violence against women
and should pursue by all appropriate means and without delay a policy of eliminating violence
against women. It also lists a number of measures similar to the legal, preventive and protective
actions set out under General Recommendation Number 19.34

4.4 Beijing Declaration and Platform of Action35

30
General Recommendation 19 (11th session, 1992), UN Document
CEDAW/C/1991/L/1/Add.15 1992 3-7.
31
Declaration on the Elimination of Violence Against Women, GAOR 48th Session, 23
February 1994, UN Doc A/Res/48/104/1994.
32
It should be noted that a resolution of the UN General Assembly is not a treaty, which
states may ratify and be bound by, but rather a non-binding resolution which sets out a common
international standard that member states of the United Nations should follow - Brownlie 14;
however, such declarations may provide a basis for the speedy consolidation of rules of customary
international law.
33
Article 1. Emphasis added.
34
See article 4(a) - (q).
35
UN Doc A/Conf.177/20 (recommended to the UN General Assembly by the Committee
on the Status of Women on 7 October 1995).
 14

4.4.1 The Beijing Declaration and Platform of Action sees its function as “an agenda for
women's empowerment”.36 While the Platform is not a legally binding document, it does embody
solemn political commitments by states.

4.4.2 The Platform identifies areas of particular concern as priorities for action.37 In each of
these critical areas of concern, strategic objectives are proposed, with concrete actions to be taken
by various actors in order to achieve these objectives.38 It is proposed that all actors should focus
action and resources on the stated strategic objectives.39

4.4.3 Violence against women is one of the critical areas of concern in which governments, the
international community and civil society (including non-governmental organizations and the
private sector) are called upon to take strategic action.40 The first objective here embodies
“integrated measures to prevent and eliminate violence against women”. These measures are
similar to those set out in article 4 of the UN Declaration, with a number of additional provisions
relating to the obligations to prevent, investigate, punish and compensate for acts of violence
against women.41

4.4.4 South Africa participated officially in the Beijing Conference through a delegation led by
Health Minister Dr Nkosazana Zuma, and the South African government adopted the Platform
without reservations. In a speech to the Conference, Dr Zuma confirmed that the South African

36
Paragraph 1.
37
These special concerns have emerged from a review of progress since the Nairobi
Conference in 1985 - Paragraph 45.
38
Paragraph 45.
39
Paragraph 5.
40
Paragraph 46.
41
Paragraph 124. For example, states are required to adopt and/or implement and
periodically review and analyse legislation to ensure its effectiveness in eliminating violence
against women, emphasizing the prevention of violence and the prosecution of offenders -
paragraph 124(d); states are also required to provide women who are subjected to violence with
access to the mechanisms of justice - paragraph 124(g).
 15

government pledged itself to the full implementation of this programme as a major step to achieve
a non-sexist South Africa.42

4.5. Report by Special Rapporteur on Violence Against Women

4.5.1 In 1994 a Special Rapporteur on Violence against Women, appointed by the UN

Commission on Human Rights, was tasked to report on the causes and consequences of violence
against women and to recommend ways of eliminating such violence.43 The Special Rapporteur's
first report, specifically dealing with domestic violence, clearly states that in the context of norms
recently established by the international community, a state that does not act against crimes of
violence against women is ‘as guilty as the perpetrators’.44 States are placed under a positive duty
to prevent, investigate and punish crimes associated with violence against women.

4.5.2 The Special Rapporteur has also proposed a model framework for domestic violence
legislation.45 This framework was extensively consulted in the drafting of the Bill.

4.6 Evaluation

It is clear that these international instruments contain both legally binding obligations (in the case
of the Convention) as well as persuasive guidelines (in the case of the UN Declaration and the
Beijing Platform). Guidance may be found in the provisions explicating state duties to prevent,
investigate, punish and compensate for acts of violence against women.

42
Department of Welfare Report on the South African Government’s Commitments
Arising out of the Fourth Un Women’s Conference, Beijing 1995 3.
43
Human Rights Watch 42-43.
44
Preliminary Report Submitted by the Special Rapporteur on Violence Against Women,
its Causes and Consequences UN Document E/CN.4/1995/42, 22 November 1994 at 18.
45
United Nations Economic and Social Council (Commission on Human Rights) Report
of the Special
Rapporteur on Violence Against Women, its Causes and Consequences - a Framework
for Model Legislation on Domestic Violence UN 1996.
 16

4.7 International law and the interpretation of the Bill of Rights

4.7.1 Section 39(1)(b) of the Constitution, 1996 provides that a court, when interpreting the Bill
of Rights, “must consider international law”. This section does not limit a court's enquiry to
treaties to which South Africa is party or to rules of customary international law which have been
accepted by the courts: South African courts will be required to consult all the sources of
international law recognized by article 38(1) of the Statute of the International Court of Justice,
viz international conventions, international custom, the general principles of law recognized by
civilized nations and judicial decisions and teaching of publicists.46

4.7.2 This approach, endorsed by the Constitutional Court in S v Makwanyane,47 implies that
courts are not required to conduct an enquiry into whether a particular principle contained in one
or more human rights conventions is backed by sufficient practice and opinio juris to qualify as
a customary rule binding on South Africa. Instead, guidance may be sought in the language
employed in multilateral human rights conventions and the decisions of convention-interpreting
bodies.48 This means that a court called on to interpret, for example, the right to freedom from
violence, could find guidance in CEDAW’s Recommendation No 19 or the provisions of the UN
Declaration.

4.7.3 In developing understanding of the right to freedom of violence entrenched in section

12(1)(c) of the Constitution, 1996, guidance is likewise to be found in the international documents
referred to above.

4.8 Constitutional jurisprudence: the right to equality

4.8.1 The importance of the right to equality in the overall context of the South African
Constitution and the Bill of Rights has been emphasised repeatedly in judgments recently handed

46
Dugard 1994 SAJHR 212.
47
1995 6 BCLR 665 (CC) 686.
48
Dugard 1994 SAJHR 213.
 17

down by the Constitutional Court. In Fraser v Children’s Court, Pretoria North and Others,49
the Constitutional Court (per Mahomed DP) confirmed this:
There can be no doubt that the guarantee of equality lies at the very heart of the
Constitution. It permeates and defines the very ethos upon which the Constitution is
premised.50

4.8.2 Sections 9(1) and 9(3) of the Constitution, 1996 provide extensive protection of equality
interests. The objective of section 9(1), which states that everyone “is equal before the law and
has the right to equal protection and benefit of the law”, has been expressed as follows:
... the state is expected to act in a rational manner. It should not regulate in an arbitrary
manner or manifest “naked preferences” that serve no legitimate governmental purpose,
for that would be inconsistent with the rule of law and the fundamental premises of the
constitutional state. The purpose of this aspect of equality is, therefore, to ensure that the
state is bound to function in a rational manner. This has been said to promote the need for
governmental action to relate to a defensible vision of the public good, as well as to
enhance the coherence and integrity of legislation.51

4.8.3 Whereas it is therefore permissible under certain circumstances for the state to differentiate
between persons or groups of persons, section 9(1) ensures that this differentiation is not based
on arbitrary or irrational considerations.52

4.8.4 Section 9(3) of the Constitution provides that “[t]he state may not unfairly discriminate
directly or indirectly against anyone on one or more grounds, including race, gender [or] sex...”.
The recent decision in President of the Republic of South Africa v Hugo53 is indicative of a
recognition by the court that the goal of equality will not necessarily be achieved by the identical
treatment of different social groups in all circumstances:
[T]he impact of the discriminatory action upon the particular people concerned [must be
considered in order] to determine whether its overall impact is one which furthers the
constitutional goal of equality or not. A classification which is unfair in one context may
not necessarily be unfair in a different context.54

49
1997 2 BCLR 153 (CC).
50
Paragraph 20. See also Brink v Kitshoff 1996 6 BCLR 752 (CC) paragraph 40.
51
Prinsloo v Van der Linde 1997 6 BCLR 759 (CC) paragraph 26.
52
See also Harksen v Lane 1997 11 BCLR 1489 (CC) paragraph 43.
53
President of the Republic of South Africa v Hugo 1997 6 BCLR 708 (CC).
54
Parapraph 41.
 18

4.8.5 The court’s emphasis on the differential impact of an impugned law on different social
groups is of specific significance in the context of domestic violence. A substantive55 conception
of equality requires the examination of the effects of domestic violence and an understanding that
non-identical treatment may be necessary to address entrenched “patterns of group disadvantage
and harm”.56

4.8.6 It is acknowledged, as required under the Convention on the Elimination of All Forms of
Discrimination Against Women, that domestic violence constitutes a major stumbling block to the
attainment of women’s equality. A recognition of the far-reaching implications of the equality
guarantees in sections 9(1) and 9(3) also underlies the conviction that the definition of “domestic
relationship” should be extended to include, for example, same-sex relationships.57

4.9 The right to freedom from violence

4.9.1 Section 12(1)(c) of the Constitution provides that “[e]veryone has the right to freedom
and security of the person, which includes the right to be free from all forms of violence from
either public or private sources”. The inclusion of the phrase “from either public or private

55
The distinction between formal and substantive equality can be described as follows:
formal equality means sameness of treatment - the law must treat individuals in the same manner
regardless of their circumstances. Substantive equality takes these circumstances into account:
the law must ensure equality of outcome. See De Waal et al The Bill of Rights Handbook 1998
154-155; C Albertyn and J Kentridge “Introducing the Right to Equality in the Interim
Constitution” 1994 SAJHR 149-178; T Loenen “The Equality Clause in the South African
Constitution: Some Remarks from a Comparative Perspective” 1997 SAJHR 401-420. There can
be little doubt that section 9 must be read as setting out substantive conception of equality - see
eg Brink v Kitshoff 1996 6 BCLR 752(CC) paragraph 42.
56
Brink v Kitshoff 1996 6 BLCR 752 (CC) paragraph 42.
57
It may be argued that the present exclusion of same-sex relationships from the ambit of
the Act constitutes a violation of both section 9(1) ( in that it denies equal protection of the law)
and section 9(3) in that it unfairly discriminates against same-sex partners on the basis of marital
status and sexual orientation.
 19

sources” clearly indicates that this section guarantees the right to freedom from domestic violence.
(This is especially significant in the light of the “traditional” tendency to relegate domestic violence
to the private sphere.)

4.9.2 In terms of section 7(2) of the Constitution, 1996, the state is required to “respect, protect,
promote and fulfil the rights in the Bill of Rights”. It may be said that the provisions of section
7(2), read with section 12(1)(c), impose a positive duty on the state to provide protection against
and punish acts of domestic violence.

4.9.3 In this respect, international human rights jurisprudence is again significant. It has been
held that states have certain positive duties to establish and maintain the necessary legal and extra-
legal institutions and remedies through which human rights can be guaranteed,58 and that states
should exercise due diligence in the discharge of these duties to prevent violations of human rights
by private parties.59

4.9.4 Section 7(1) of the Constitution provides that the Bill of Rights “[a]ffirms the democratic
values of human dignity, equality and freedom”. It has been argued on the basis of this provision,
read with s 9(3) of the Constitution,1996, that the right to equality is the foundation of all other
rights enshrined in the Bill of Rights, including the right to freedom from violence.60 Since the
right to equality, substantively conceived, requires a court to consider the effect of an impugned
provision in the social context in which disadvantaged parties live, and since the right to equality
is the foundation of the right to freedom from violence, it follows that the right to freedom from
violence must also be interpreted substantively. A substantive conception of the right to freedom
from violence therefore necessitates not only the prevention of domestic violence, but also the
eradication of the detrimental effects of such violence on victims.

58
Velasquez Rodriguez Case Judgment of 27 July 1988, Inter-American Court of Human
Rights, Ser C, Vol 4, paragraph 166.
59
Velasquez Rodriguez Case Judgment of 27 July 1988, Inter-American Court of Human
Rights, Ser C, Vol 4, paragraph 166.
60
Submission to the Commission by UWC Community Law Centre.
 20

4.9.5 The constitutional duty to provide protection from violence includes a duty to enact
legislative provisions which, firstly, are effective and, secondly, do not subject victims of domestic
violence to secondary victimization.61 Further, it is necessary to address the effects of domestic
violence in the social context in which victims find themselves. This recognition should be
balanced with an awareness of the constitutionally protected rights of the perpetrator of domestic
violence. This includes, for example, the right to access to justice and the rights of an accused
person set out in the Constitution, 1996.

61
Secondary victimization can be defined as the unsympathetic, disbelieving, and
inappropriate responses (exacerbating the effects of gender-based violence) that women
experience at the hands of society in general and at each stage of the criminal justice process - S
Stanton & M Lochrenberg Justice for Sexual Assault Survivors? 1995 1.
 21

5. PROBLEMS IDENTIFIED IN ISSUE PAPER 2 ON FAMILY VIOLENCE50

5.1 The audi alteram partem rule

A. Excerpt from Issue Paper51

Although the aim of the Act is laudable, the manner in which it provides for interdicts
appears to be seriously flawed. Concern has been expressed at the apparent disregard for
the audi alteram partem rule. There seems to be a general feeling that this problem could
be solved if a rule nisi - an interim order with a return date - were granted.

B. Problem analysis

5.1.1 Strong feelings have been expressed that the Act is an unjustified departure from the audi
alteram partem principle - the common law right for both parties to a dispute to be heard.

5.1.2 Dicker52 contends that disregard for the audi alteram partem principle may be seen from
the fact that, according to section 2 of the Act, the judge or magistrate is required to grant a final
interdict, with potentially serious repercussions (including, in effect, an eviction order) against a
respondent without having heard him. Audi alteram partem comes into the picture, as far as the
respondent is concerned, only after service of the interdict and orders upon him. He may apply
for the amendment or setting aside of the order, and he is given a hearing at the enquiry into his
alleged breach of the interdict and orders.

5.1.3 However, in both an application for the amendment or setting aside of the interdict and
orders, and at an enquiry into his alleged contravention of the interdict and orders, he is saddled
with an onus of satisfying the judge or magistrate, on a balance of probabilities, that the interdict
should be amended or set aside or that he is not guilty of the contravention of the interdict, as the
case may be. In addition, in terms of Regulation 5 the applicant in whose favour the interdict was

50
This Chapter follows the sequence of headings in the Issue Paper.
51
Issue Paper at 5.
52
L Dicker “The Prevention of Family Violence Act: Innovation or violation?” 1994 De
Rebus 213.
 22

granted actually has an opportunity to contest the application for amendment or setting aside of
the interdict before the application is considered or granted.

5.1.4 Dicker53 concludes that the Act provides protection to the victims of violence within the
family context “at an unacceptably high price”, and that the procedure provided in the Act and
Regulations is so deficient that it might be struck down “when measured against an enshrined right
to due process under a new constitution”.54

5.1.5 Fredericks & Davids55 assert that it is clear that the Act violates the audi principle since
the interdict is issued immediately but suspended. Temporary disregard of the audi principle may
be warranted in suitable cases but the Act does not limit the right to audi alteram partem in
accordance with section 33 (limitation clause) of the Constitution, 1993. The provisions are
accordingly unconstitutional.

5.1.6 Stewart56 supports some of Dicker’s arguments and discusses additional procedural and
evidentiary difficulties experienced when attempting to have an interdict, issued in terms of the
Act, set aside. She warns that57, because the Act shows a “blatant disregard of the application of
natural justice”, it will be “struck down as unconstitutional in the near future” unless it is amended.

5.1.7 Stewart58 argues that interim interdicts would be a more practical and just solution,
especially in view of the fact that the legislature intended these remedies to be of a quick and

53
Dicker 1994 De Rebus 215.
54
J D Sinclair The Law of Marriage Vol I Kenwyn: Juta 1996 136 fn 365 points out that
there is no obvious due process clause in the Constitution, 1993 (Constitution of the Republic of
South Africa Act 200 of 1993). Yet it does not seem unrealistic to read due process in section
11(1) (freedom and security of the person) and it may also be possible to argue that due process
may be read into section 8(1) (equal protection of the law).
55
I N Fredericks & L C Davids “The Privacy of Wife Abuse” 1995 TSAR 471 489.
56
F Stewart “Family Violence Act Causes ‘Nightmarish’ Problems” 1994 De Rebus 721.
57
Stewart 1994 De Rebus 722.
58
Stewart 1994 De Rebus 722.
 23

interim nature. She points out59 that a magistrate in deciding on whether to set aside an interdict,
is obliged to accept the original applicant’s version of any facts in dispute as correct. Only the
respondent’s (applicant for setting aside the interdict in terms of section 2(2)(c) ) unopposed
allegations should be accepted as correct by the magistrate. In order to convince the magistrate
to set aside the interdict, the respondent is forced to deal with the allegations of fact on which the
applicant originally relied. If the respondent placed the facts in the founding papers in dispute, his
version would automatically be rejected, as those facts had already been accepted in the initial
application for the interdict. Yet how would the respondent ever discharge the onus on him of
proving that the interdict should be set aside without dealing with the allegations of fact originally
set out in the applicant’s founding affidavit?60

5.1.8 It is submitted61 that applications to set aside interdicts should be treated on the same
principles as interim interdicts; that is, the facts of the initial interdict are disregarded and, once
the respondent makes certain allegations of fact, these are accepted as correct unless conclusively
placed in dispute by the applicant in her replying affidavit. The applicant then cannot rely simply
on her initial affidavit (which might be exaggerated or blatantly incorrect). In addition it also

59
Stewart 1994 De Rebus 721.
60
This argument is in accordance with the Rutenberg case (1997 4 SA 735 (C) 752) in
which Thring J remarked as follows :
It can safely be assumed that in most cases there will be material disputes of fact
arising out of the respondent’s denials of the allegations made by the original
applicant in applying for the interdict. . . the respondent’s application to have the
interdict set aside would have to fail, for it would have to be decided on the basis
of the original applicant’s (the now respondent’s) disputed facts, despite the fact
that it was the original applicant who initially bore the onus of satisfying the
magistrate that the facts deposed to by him or her were true. The original
respondent would, of course, have to labour under the additional disadvantage
that regulation 5 makes no provision for him or her to “lodge” a replying affidavit.
Moreover, unlike the original applicant, he or she would not be entitled to bring
his or her application ex parte (see regulation 5(4) and (5).
61
Stewart 1994 De Rebus 722.
 24

forces her to raise disputes of fact, confirming that the respondent is a threat and therefore
justifying the interdict order.62

5.1.9 Novitz63 suggests that the objection to the ex parte application could simply be overcome
by including a notional return date. Either magistrates could impose such a date or legislative
amendment could include a return date in the Act. She submits, however, that such an amendment
while arguably desirable is not overly compelling as it is always open to the respondent to seek
amendment or setting aside of the interdict on 24 hours’ notice (section 2(2)(c) of the Act).

5.1.10 In reaction to Dicker64, Coetzee65 points out that the audi alteram partem rule is not
always applied, or not always applied strictly. In exceptional circumstances natural justice does
not require that the respondent be given an opportunity to be heard before the decision is taken.
In Administrator, Transvaal v Traub66 Corbett CJ held as follows:
Generally speaking . . . the audi principle requires the hearing to be given before the
decision is taken by the official or body concerned . . . Exceptionally however, the dictates
of natural justice may be satisfied by affording the individual concerned a hearing after the
prejudicial decision has been taken . . . This may be so, for instance, in cases where the
party making the decision is necessarily required to act with expedition, or where for some
other reason it is not feasible to give a hearing before the decision is taken.67

62
This suggestion is echoed by B Clark "Cold Comfort? A Commentary on the Prevention
of Family Violence Act" 1996 SAJHR 587 595.
63
T Novitz “Interdicts in the Magistrates’ Courts: An Analysis of the Content and
Implementation of the Prevention of Family Violence Act”, document produced for the Law,
Race and Gender Project at the University of Cape Town, September 1994 at 51.
64
Paragraph 5.1.2 - 5.1.4 above.
65
M Coetzee “Die Wet op die Voorkoming van Gesinsgeweld, 1993: Noodsaaklik, Tydig
en Vernuwend” 1994 De Rebus 623.
66
1989 4 SA 731 (A) 750.
67
Commenting on Coetzee’s reliance on the Traub case to justify the deviation from
natural justice rules in the Act, Stewart 1994 De Rebus 722 submits that a more valid
interpretation of the Traub case would be that natural justice rules may be temporarily dispensed
with when urgency demands - that is, in the granting of an urgent interim interdict.
 25

5.1.11 Coetzee68 submits that the unique relief which is sought in terms of the Act, as well as the
urgent nature thereof, justifies a departure from the general audi rule. He submits that the Act
does not negate the audi rule, but alters it to satisfy the needs of society. The respondent is given
an opportunity to react to the allegations against him at a later stage. In Visagie v State
President69 it was held as follows:
When expedition is required, it might be necessary not to give the affected person the
opportunity of presenting his case prior to the decision, but only after. He thus obtains
the opportunity of persuading the official to change his mind.

5.1.12 Burman70 argues that if the enormity of family violence, the deleterious effect on the victim
and the harm to the community are taken into account, extraordinary, even revolutionary,
measures are needed to prevent yet further violence on those so vulnerable. There are in any
event very severe penalties for perjury, maliciously setting the law in motion and other common
law crimes linked with abuse of the judicial system which should act as a deterrent.

5.1.13 In the Rutenberg case71 Thring J gave an incisive exposition of the granting of interdicts
in our law and the application of the audi alteram principle to the Act. It is deemed necessary
to quote extensively from the judgment:
First, our Courts do not, as a general rule, grant even interim or provisional interdicts ex
parte unless a case of urgency is made out by the applicant concerned. Whilst it must
immediately be conceded that in many applications for interdicts brought under the Act
there will be genuine urgency present, this will not always be the case . . . a departure from
the accepted requirement of notice could not normally be justified.

Secondly, it is not the practice of our Courts to grant final interdicts ex parte, even where
urgency is present: in such cases, the almost invariable practice is for a rule nisi to issue,
which is then served on the respondent, and in which he or she is afforded an opportunity,
on the return day, to show cause before the Court why the rule should not be made final.
To protect the applicant’s rights in the meantime, a provisional order is granted which
operates as an interim interdict. On the return day, the respondent bears no onus: it is for
the applicant to persuade the court that he or she should be granted final relief.

68
Coetzee 1994 De Rebus 625.
69
1989 3 SA 859 (A) 865.
70
D Burman “Prevention of Family Violence Act: Criticism Misses the Point” 1994 De
Rebus 317.
71
1997 4 SA 735 (C) 752 - 753.
 26

5.1.14 The judge continued by referring to the “potentially grossly inequitable results” which
could ensue if the Act were strictly applied:72
Those results are even more startling when regard is had to the fact, first, that the final
interdict granted under section 2(1) may enjoin the respondent not to commit “any other
act” specified in the interdict ( section 2(1)(d) ): thus, for example, if the parties are both
employed at the same premises, and there is a complaint by the applicant that the
respondent harasses him or her at work, the respondent could be finally prohibited, in
perpetuity, from entering the premises of his or her employer, with obviously far-reaching
consequences, including, probably, the loss of his or her employment. Secondly, in terms
of section 2(1)(b) the respondent may be finally enjoined, in perpetuity, “not to enter the
matrimonial home . . . or a specified area in which the such home . . . is situated.” This
is tantamount to an ex parte ejectment of the respondent forever from what may be his or
her own property. Moreover, he or she may similarly be prohibited even from entering
the area in which his or her erstwhile home is situated. Thirdly, and again on the strength
of the applicant’s ex parte application, it is mandatory for the magistrate to authorise the
issue of a warrant for the respondent’s arrest (section 2(2)(a) ) . . . consequently, from that
moment the respondent is in jeopardy of being arrested and incarcerated for up to 24
hours. Again, the arrest will be effected on the untested strength of an affidavit placed
before a policeman without notice to the respondent, in which it is stated that the latter
has breached “ any of the conditions” contained in the relevant order (section 3(1) ).

5.1.15 Thring J conceded73 that there would be cases where the granting of the kind of interdict
envisaged under the Act would be amply justified in the circumstances. However, he found it
startling that it could have been suggested that the legislature had intended that there should have
been such fundamental departures from those procedures as a matter of course, in every case
brought under the Act. That would have resulted in the Act and Regulations having created legal
machinery which would have been crude, potentially highly unfair, unjust and unreasonable to
respondents, inviting abuse by unscrupulous applicants and, furthermore, that the legislature had
intended that machinery to be used rigidly in every case brought under the Act. Although Thring
J had no doubt that the Act was prompted by the highest and most noble of motives, viz to
combat the battering of women and children within the family circle, he held that it could not have
been Parliament’s intention to achieve that objective at the price of a wholesale and probably
unconstitutional denial of procedural justice of all alleged perpetrators of such conduct.

72
Rutenberg v Magistrate, Wynberg 1997 4 SA 735 (C) 753.
73
Rutenberg v Magistrate, Wynberg 1997 4 SA 735 (C) 753 - 754.
 27

5.1.16 Thring J concluded his judgment concerning the application of the audi alteram partem
rule to the Act as follows:74
It is only in exceptional cases, for example, where there is urgency, where the audi
alteram partem rule will be departed from, and even then final relief will not usually be
granted until parties who will be materially affected by the order sought have been
afforded an opportunity to be heard . . . Thus the ex parte procedure for granting final
relief which is apparently sanctioned in section 2(1) of the Act, read with regulation 2 and
the relevant prescribed forms, constitutes a radical departure from the audi alteram
partem rule, which is regarded in our law as a fundamental tenet of natural justice. This
being so, it seems to me that the legislature must be taken to have intended that procedure
to be used very sparingly, and only in those cases where a departure from the ordinary
procedure is clearly justified in the circumstances of a particular case.

There is nothing . . . in the Act or regulations to prevent a magistrate, in his discretion,

when dealing with an application for an interdict under section 2(1) of the Act, from
declining to grant the interdict ex parte, that is to say, refusing to grant it until the
respondent concerned has been given what the magistrate regards as proper prior notice
of the application. There is also . . . no reason why, in an appropriate case, the magistrate
should not, again, at his discretion, in granting an ex parte application, follow the
procedure laid down in Magistrate’s Court Rule 56(5)(a) and issue a rule nisi calling upon
the respondent to show cause on the return day of the order why the provisional interdict
being granted against him should not be made final. In such a case the procedure provided
in section 2(2)(c) of the Act for amending or setting the interdict aside would simply be
an additional remedy open to the respondent. Nowhere in the Act or regulations am I able
to find any prohibition against the following of this, the normal procedure expressly
prescribed by the Magistrate’s Court Rule 56(5)(a): the effect of the Act and regulations
in this regard . . . is no more than to provide that a magistrate may depart from it if, in the
circumstances, he sees fit to do so; not that he must. (Own underlining.)

5.1.17 The judge emphasised75 that he was not saying that a judge or magistrate should in all
cases brought under the Act apply the normal procedure. There might be instances in which a
departure therefrom would be justified, in the particular circumstances. In such cases the judge
or magistrate concerned was afforded the discretionary power by the Act to depart from the
normal procedure, if he saw fit to do so. The power should, however, be sparingly and carefully
exercised.

74
Rutenberg v Magistrate, Wynberg 1997 4 SA 735 (C) 754 - 755.
75
Rutenberg v Magistrate, Wynberg 1997 4 SA 735 (C) 755.
 28

5.1.18 Lehmann76 observes that Thring J's judgment has succeeded in sowing confusion amongst
magistrates' courts in the Western Cape. Whereas certain courts continue as a matter of course
to grant family violence interdicts in accordance with the provisions of the Act, others first grant
rules nisi, and only in urgent cases family violence interdicts. Disquietingly, it is reported that
some magistrates refuse to grant even rules nisi, insisting on proper notice as a matter of course.
This lack of uniformity is not only undesirable as a matter of policy, but may be of considerable
practical consequence to applicants.77

5.1.19 In Robinson v Rossi78 Stegmann J was also thoroughly disconcerted by the family
violence interdict granted in terms of the Act. He interpreted the procedure under the Act as
follows:79
When an application under section 2 of the Act is brought to a judge (or magistrate) in
chambers, his first duty is to consider whether a prima facie case has been made out for
the proper use of his powers under the Act to grant a summary interdict ex parte . . . The
ordinary rule of practice is, of course, to follow the requirement of natural justice: audi
alteram partem; or at least give the respondent the opportunity to be heard before an
interdict is ordered and the issue of the associated warrant of arrest is authorised; and not
to depart from that requirement unless there are substantial grounds for believing that
prior notice to the respondent would be likely to precipitate the very evil which the

76
K Lehmann "Rutenberg v Rutenberg" 1997 SAJHR 154 158.
77
Following the Rutenberg judgment, the Western Cape branch of the National Institute
for Crime Prevention and the Rehabilitation of Offenders (NICRO) conducted an investigation
into the effectiveness of interdicts granted in terms of the Act (J Keen & C Vale An Investigation
into the Effectiveness of Interdicts granted in terms of the Prevention of Family Violence Act 133
of 1993 NICRO 1997). The research findings are based on data taken from one hundred women
who applied for interdicts at the seven courts in the Cape Town area. NICRO notes that since
the Rutenberg case, the tendency in the Western Cape is not to grant final interdicts with
suspended warrants of arrest, but rather to grant temporary interdicts with return dates and with
no suspended warrants of arrest, or to give the applicant and the respondent notice to appear in
court to have the final interdict issued. NICRO expresses the concern that the practice of issuing
temporary interdicts without the suspended warrant of arrest leaves the victim just as vulnerable
to abuse as before she applied for the interdict, or even more so.
78
1996 2 All SA 349 (W).
79
Robinson v Rossi 1996 2 All SA 349 (W) 364 - 365.
 29

applicant has come to court to try to forestall . . . A judge (or magistrate) in chambers .
. . will only accede to the applicant's request if he is satisfied that there is good reason to
believe that giving prior notice to the respondent would be likely to precipitate the evil
which the applicant seeks to avert . . .

5.1.20 If the grant of a ex parte order does not appear to be justified:80

The is nothing in the Act which disempowers a judge (or a magistrate) from doing what
the rules of natural justice, and every instinct implanted by his training and experience,
enjoin him to do viz before he makes any order affecting the rights of liberties of any
person, to give that person a reasonable opportunity to put his side of the case . . . the Act
does not disable a judge (or magistrate) in chambers from adopting a more flexible
approach and using his discretion to direct that the matter should be dealt with as seems
most appropriate to the circumstances of the case . . .

5.1.21 Stegmann J went on to describe the procedure under the Act as "draconian":81
Section 2(1) of the Act makes provision for the grant upon an ex parte application of an
interdict which, unless set aside at the instance of the respondent, will apparently be a final
interdict, enforceable against the respondent for all time to come . . . a warrant of arrest
must be issued and conditionally suspended under section 2(2). The respondent is thereby
secretly delivered into the hands of the applicant until she chooses to strike at him . . . The
provision is rightly to be regarded a Draconian. Therefore it seems to me that a judge or
magistrate, when approached to grant such an order ex parte, should always require to be
satisfied that some impending peril is likely to be precipitated by prior notification to the
respondent that the interdict is to be applied for, before acceding to the request for an ex
parte order. It is important to remain alive to the essential injustice involved in making
an order which is calculated to affect the freedom of another person without having
observed the rule of natural justice enshrined in the maxim audi alteram partem.

5.1.22 The obiter view was held82 that the High Court could look outside the Act and, in the
exercise of its ordinary jurisdiction, grant the applicant a temporary interdict pending the outcome
of a further hearing at which the decision to grant or refuse final relief is to be made.

80
Robinson v Rossi 1996 2 All SA 349 (W) 366.
81
Robinson v Rossi 1996 2 All SA 349 (W) 372.
82
Robinson v Rossi 1996 2 All SA 349 (W) 375 - 376.
 30

5.1.23 Barnes83 concludes that the effect of Rutenberg v Magistrate, Wynberg84 and Robinson
v Rossi85 is to deprive the Act of all meaning. She asserts that Thring J and Stegmann J do not
consider domestic violence a serious issue. Nor do they consider do they consider domestic
violence to be inherently urgent. Thring J and Stegmann J's obliviousness to the seriousness of
domestic violence explains their disconcertion at the Act's novel interdict procedure. The judges'
trivialisation of domestic violence caused them to be affronted at the family violence interdict and
to circumscribe it out of existence. According to Barnes,86 on the ground the effect of these
decisions has been dramatic and the family violence interdict has been flung into a state of utter
confusion. Some judicial officers continue to follow the provisions of the Act. Many, however,
now follow ordinary court rules, granting either interim interdicts with rules nisi, or mandatory
lengthy application proceedings.

5.1.24 Barnes87 emphasises that the judgments assume the interdict granted in terms of the Act
to be final. If it were interim, it would violate the audi alteram partem rule no more than do all
interdicts granted ex parte in South African law. However, she cautions88 that an interim interdict
without a warrant of arrest is not an acceptable option for battered women, since it leaves them
in danger without enforceable legal protection unless and until confirmation.

C. Comparative survey of laws

United Nations framework for model legislation on domestic violence 89

83
H Barnes An Evaluation of the Effectiveness of the Family Violence Interdict LLM
Research Dissertation 1997 46 - 48.
84
1997 4 SA 735 (C).
85
1996 2 All SA 349 (W).
86
Barnes 50.
87
Barnes 49.
88
Barnes 53.
89
United Nations Economic and Social Council (Commission on Human Rights) Report
of the Special Rapporteur on Violence Against Women, its Causes and Consequences - a
Framework for Model Legislation on Domestic Violence United Nations 1996 paragraph 36.
 31

5.1.25 Emergency relief would include an ex parte temporary restraining order, to remain in effect
until a court order is issued but for not more than 10 days after the ex parte temporary restraining
order has been issued.90 On 24 hours’ notice to the plaintiff, the defendant may move for a
dissolution or modification of the temporary restraining order.91 Judges should be required to
conduct hearings within 10 days of the complaint and application for a protection order.

England
5.1.26 The Law Commission (England)92 emphasises that there are a number of inherent
drawbacks to ex parte orders. The danger of misconceived or malicious application being granted
or the risk of some other injustice being done to the respondent is inevitably greater where the
court has only heard the applicant’s side of the story and the respondent has had no opportunity
to reply. Also, on ex parte applications, the judge has no opportunity to try and resolve the
parties’ differences by agreed undertakings or otherwise to reduce the tension of the dispute.
Equally, there is no opportunity to bring home the seriousness of the situation to the respondent
and to underline the importance of complying with the order.

5.1.27 The Law Commission (England), however, points out that despite the accepted need for
caution, it is well recognised that there are occasions when ex parte orders are both necessary and
desirable. In cases of imminent physical violence it is difficult to think of a more compelling
justification, in a proper case, for permitting concern about the inherent dangers of ex parte orders
to be outweighed. It accordingly recommends93 that the court should retain a general discretion
to grant orders without prior notice to the respondent where in all the circumstances it would be
just and convenient. There should, however, be a requirement to take the following factors into
account:
(a) The risk of significant harm to the applicant or a child if the order is not made
immediately.

90
UN Framework paragraph 30.
91
UN Framework paragraph 31(c).
92
The Law Commission (England) Report on Family law, Domestic Violence, and
Occupation of the Family Home Law Com. No. 207 London: 1992 42.
93
Law Com. No. 207 44.
 32

(b) Whether it is likely that the applicant will be deterred or prevented from pursuing
the application if an order is not made immediately.
(c) Whether there is reason to believe that the respondent is aware of the proceedings
but is deliberately evading service and the applicant or a child will be seriously
prejudiced by the delay involved in effecting service or substituted service.
Australia
The Australian Capital Territory
5.1.28 An ex parte interim order may be obtained at short notice. The order is valid for 10 days.94

New South Wales

5.1.29 An ex parte interim order may be obtained quickly. The defendant is summoned to appear
at a hearing as soon as possible, at which hearing the court may either confirm, vary or revoke the
order.95

Northern Territory
5.1.30 The court may grant an ex parte interim order. The defendant is summoned to show cause
why the order should not be confirmed.96

Queensland
5.1.31 An ex parte interim order (which is called a “temporary order”) may be obtained quickly.
The order usually lasts for 30 days but may be extended.

South Australia

94
J A Riordan (Editor in chief) The laws of Australia (Title 17 Family Law) Sydney: The
Law book Company 1995 paragraph [61].
95
Laws of Australia paragraph [65].
96
Laws of Australia paragraph [69].
 33

5.1.32 An interim ex parte order may be made at short notice. After such an order is made the
defendant is summoned to appear to show cause why the order should not be continued. An
interim order is binding once it is served on the defendant97.

Tasmania
5.1.33 An interim ex parte order may be made by the court at short notice in emergency cases.
The order, which is not binding until served, operates for a maximum of 60 days or until further
order of the court.98

Victoria
5.1.34 An ex parte interim order may be made in emergencies. An interim order is binding on the
defendant once it is served. The order operates for the time specified by the court or until a
further order is made.99

Western Australia
5.1.35 An interim ex parte order may be made at short notice. The order is binding on the
defendant once it has been served. The defendant is summoned to show cause why the order
should not be confirmed.100

Canada
Alberta
5.1.36 To obtain a restraining order ex parte, the applicant must clearly demonstrate a situation
of urgency. It must be established that taking the time to give notice would compromise the safety
of the applicant or the applicant’s children. The inference of an apprehension of immediate danger

97
Laws of Australia paragraph [77].
98
Laws of Australia paragraph [81].
99
Laws of Australia paragraph [85].
100
Laws of Australia paragraph [89].
 34

must be borne out by the information contained in the affidavit.101 The Alberta Law Reform
Institute102 concludes that emergency conditions would obviously have to be present before an
order would be given on an ex parte basis. It should be possible to grant an emergency ex parte
order if it has been determined that domestic abuse has occurred or has been threatened; and the
order is needed immediately to protect the safety of the claimant or of a child to the claimant or
a child for whom the claimant has parental responsibility.103

New Zealand
5.1.37 A protection order may be made on an application without notice if the court is satisfied
that the delay that would be caused by notice would or might entail a risk of harm or undue
hardship to the applicant or a child of the applicant’s family or both. A protection order made on
application without notice is a temporary order that becomes final by operation of law three
months after the date on which it is made. The respondent may notify the court that he wishes
to be heard on whether a final order should be substituted for the temporary protection order.104
A hearing date must then be assigned which must be as soon as is practicable but not later than
42 days after receipt of the respondent’s notice.105 The court may also of its own motion require
a hearing before the order becomes final.106

USA
5.1.38 Professor J T R Jones,107 Associate Professor of Law at the University of Louisville School
of Law, maintains that family violence situations are extraordinary ones in all cases, justifying the

101
Alberta Law Reform Institute Domestic Abuse: Toward an Effective Legal Response
Report for discussion No 15 Alberta: Alberta Law Reform Institute 1995 15 - 16.
102
ALRI Report for Discussion No 15 53.
103
Alberta Law Reform Institute Protection Against Domestic Abuse Report No 74
Alberta: Alberta Law Reform Institute 1997.
104
Domestic Violence Act 86 of 1995, section 13.
105
Domestic Violence Act 86 of 1995, section 76.
106
Domestic Violence Act 86 of 1995, section 78.
107
Submission to the Commission.
 35

temporary ex parte issuance of interdicts notwithstanding the usual rule of audi alteram partem.
Jurisdictions in the USA long have recognised this fundamental fact, and as a result grant
protective orders (the USA equivalent to family violence interdicts) on an ex parte basis despite
the principles of USA due process law which are equivalent to audi alteram partem.

D. Recommendation 1 in Discussion Paper 70

5.1.39 In Discussion Paper 70 it was recommended that the legislation provide:108

(a) For the granting of interim interdicts ex parte and a rule nisi calling upon the
respondent to show cause on the return day of the order why the provisional
interdict granted against the respondent should not be made final.

(b) That the presiding officer shall grant an interim interdict unless he or she is
convinced that a prima facie case has not been made out.

(c) That the fact that the respondent has not been given prior notice of the application
shall not be a ground for refusing to grant an interim interdict.

E. Submissions on Recommendation 1 in Discussion Paper 70

General
5.1.40 It is interesting to note that the Law Commission investigation into the problem of
domestic violence stemmed from a concern, not with the rights of the applicant, but rather with
the potential infringement of the rights of the respondent. The procedure provided for in the Act
is indisputably the most contentious of all its provisions. As a result, the recommendation to
provide for an interim interdict to be confirmed on a return day seems, in principle, to be
supported by the majority of respondents to the Discussion Paper. Only four respondents, three
of whom are NGO’s, do not support the recommendation.

108
Discussion Paper 70 paragraph 3.1.60.
 36

Interim orders versus final orders

5.1.41 Many of the respondents who support the recommendation assume that the Act is
unconstitutional. It is on this basis that many accept that the new procedure of granting interim
interdicts is preferable. However, four of the respondents, namely, The Black Sash, P Thwala,
Tshwaranang Legal Advocacy Centre to end violence against women, and UWC Community Law
Centre question this premise, claiming that only the Constitutional Court of South Africa can
make a final determination of this question, and until such time as it declares the procedure
outlined in the Act to violate the respondent’s rights, the Act is constitutional. These respondents
claim that it is certainly arguable that the rights of the respondent can be limited by the rights of
the applicant. One respondent, Tshwaranang claims that even if the procedure of granting final
interdicts ex parte is a violation of the audi alteram partem rule, it is nonetheless a reasonable and
justifiable limitation in terms of section 36 of the Constitution, since the applicant’s rights to
equality (section 9), human dignity (section 10) and freedom and security of the person (section
12) outweigh the respondent’s rights. The Black Sash and P Thwala endorse this by submitting
that the audi rule can be flouted to protect the interests of an abused person. Tshwaranang
investigated the possibility of approaching the Constitutional Court for a declaration of rights to
have section 2(2) of the Act declared constitutionally sound, however this process was temporarily
suspended in the light of the Law Commission’s investigation.

5.1.42 The Department of Justice’s Gender Unit supports a system which allows final interdicts
to issue at ex parte hearings, at least in some circumstances. The Unit proposes a procedure
whereby an interim interdict is granted at the ex parte hearing and this becomes automatically final
unless challenged by the respondent during a certain period. Another variation would be to allow
final orders to be issued in some cases where the terms of the interdict are simple and do not
impact on fundamental rights of the respondent.

5.1.43 The Laws and Administration Committee of the General Council of the Bar submits that
the applicant must show sufficient cause why prior notice is not given to the respondent and she
should have the onus to prove to the court that the prerequisite of prior notice could be dispensed
with. If the applicant does not succeed with this requirement, the court could order that prior
notice be given to the respondent before deciding on the matter.
 37

5.1.44 The Magistrate: Mitchells Plain states that it often happens that either the applicant or
respondent appears on the return date. When the respondent appears alone and indicates that he
wants to oppose the application it becomes problematic. Logic and fairness (and provisions of
the Magistrates' Courts Act) dictate that he must succeed in having the interim order set aside by
default. The non-appearance of the applicant might, however, be a result of unforseen
circumstances (even threats of the respondent). The Magistrate: Mitchells Plain suggests that
the interim order remain in force for a certain period after non-appearance and only then
automatically cease to exist in the absence of reaction from the applicant.

5.1.45 The Magistrates: Paarl and Durban claim that the interim interdict should only be granted
upon proof of urgency and not as a matter of course, in the same way as is the case with ordinary
ex parte applications. Often no reason exists for the granting of an interdict before the matter has
been aired properly. (Magistrate: Paarl.) The audi alteram partem rule would best be served
if provision is made for motion proceedings. Ex parte applications should only be granted if there
is some good reason for them in preference to motion proceedings. (Magistrate: Durban.)

5.1.46 The Magistrate: Wynberg makes a suggestion which seems to compromise between the
two poles. He claims that a balance of the rights of the applicant and respondent could be struck
by the granting of an interim interdict on notice to the respondent and the granting of a final order
without notice to the respondent.

5.1.47 The Association of Law Societies and Natal Law Society stress the importance of ensuring
that not only an interdict, but also a warrant of arrest be granted at the rule nisi stage. An
interdict without a warrant of arrest has no teeth.

Return day when interdict will be made final

5.1.48 Some of the respondents express concern that the recommendation providing for an
interim interdict would impact negatively on the very women the legislation is aimed at assisting.
The Department of Justice Gender Unit submits that any legislative scheme which always requires
the applicant to attend court twice to obtain protection against domestic violence is oppressive
to the victim. Considering the difficulties faced by many South African women in obtaining
 38

transport, it can be assumed that many applicants will not have the resources to return to court.
The Magistrate: Mitchell’s Plain simply raises the difficult procedural question facing a
magistrate where one of the parties does not appear on the return day.

5.1.49 Tshwaranang Legal Advocacy Centre raises a host of problems that could arise on the
return day. Firstly, will either or both parties be entitled to legal representation and if so, what are
the potential discriminatory effects of legal representation of the respondent, but not the
applicant? Secondly, no guidelines have been given for the basis on which a court ‘may’ grant
or set the interdict aside and magistrates may therefore apply the criminal standard of proof,
making it unlikely that many interdicts will be granted. Tshwaranang recommends that magistrates
provide written reasons for a refusal of an interdict and that all refused applications go on
automatic review. Thirdly, that it is unfair to allow the respondent a number of opportunities to
bring the applicant before the court - he should only be given one opportunity to have the interdict
set aside. Therefore, if a return day is provided for, the respondent should not be able to return
to court at a later date to have the interdict set aside. To allow a respondent to return to court at
any time to have the interdict set aside negates the possibility for the applicant of a stable existence
under the protection of the interdict as she will constantly live in fear that her protection may be
withdrawn. Fourthly, what happens when the court sets the interim interdict aside? Provision
needs to be made to protect an applicant who has, for one reason or another, not been able to
ensure that the interim interdict is confirmed.

Onus of proof on the return day

5.1.50 Some of the respondents identify that the procedure on the return day places the onus of
proof on the respondent to show cause why the order should not be made final. ML Kennedy
claims that this is an unwarranted shifting of burden of proof and that the applicant should bear
the onus of proving on a preponderance of probabilities why it should be final.

Magisterial discretion
5.1.51 Respondents are divided over the question of magisterial discretion. Magistrates feel that
the magistrate’s discretion should be unfettered. For example, the Magistrates: Pietermaritzburg
and Pretoria North claim that recommendation 1(b) limits the court's discretion and it should read
 39

that the presiding officer "may" grant an interim interdict. However, NGO’s who responded claim
that untrained magistrates should not be left with an unfettered discretion, and that it is precisely
magisterial discretion that lies at the root of many of the problems experienced by women in
vindicating their rights under the present Act. This view is endorsed by the Department of Justice
Gender Unit which submits that where there has been a finding of domestic violence, the granting
of an interdict should be mandatory.

5.1.52 Recommendation 1 in Discussion Paper 70 is endorsed by:

Cape Law Society
M Horton (Research advisor in the Deputy Ministry of Justice)
NICRO, Western Cape
SA National Council for Child and Family Welfare (57 respondents)
The Women's Lobby
UWC Community Law Centre

F. Evaluation

5.1.53 It is obvious that in many applications for protection orders there will be genuine urgency
present, thus justifying the granting of protection orders ex parte. As argued by the Law
Commission (England),109 in cases of imminent physical violence it is difficult to think of a more
compelling justification, in a proper case, for permitting concern about the inherent dangers of ex
parte orders to be outweighed. Other jurisdictions recognise the granting of orders made without
notice provided that a situation of urgency is demonstrated.110

5.1.54 In the Rutenberg case111 it was held that urgency would not always be present and that
a departure from the accepted requirement of notice could not normally be justified. Thring J
concluded112 that there was nothing in the Act or regulations to prevent a magistrate, in his

109
See paragraph 5.1.27 above.
110
See paragraph 5.1.25 et seq above.
111
See paragraph 5.1.13 above.
112
See paragraph 5.1.16 above.
 40

discretion, from declining to grant the interdict until the respondent concerned has been given
what the magistrate regards as proper prior notice of the application.

5.1.55 An unrestricted discretion to decide what circumstances would justify an ex parte order,
might give rise to legal uncertainty and the consequent denial of relief to many victims of abuse
who should qualify for emergency protection. It is well known that the most dangerous time for
any domestic violence victim is when she tries to separate herself from the abuser. Obtaining a
protection order is exactly the type of action likely to trigger a violent response. To give the
batterer advance notice of the victim’s intended behaviour will prove catastrophic in many
situations, and it will probably be impossible to predict when danger will arise.

5.1.56 It is submitted that the inherent drawbacks to ex parte orders and criticism that the Act
is an unjustified departure from the audi alteram principle, would be allayed by providing for the
granting of interim protection orders ex parte and a rule nisi calling upon the respondent to show
cause on the return day of the order why the provisional protection order being granted against
him should not be made final. In all the jurisdictions considered113 orders made on application
without notice are temporary orders.

5.1.57 All the concerns raised by the respondents to the Discussion Paper as to the effect of a
return day on applicants are noted. However, a fair a balance should be struck between the rights
of the abused person and the respondent. It is submitted that the applicant’s rights be protected
by the granting of an ex parte interim order, magisterial discretion to confirm the order on the
papers even in her absence or the absence of the respondent, and the shifting of the onus of proof
on the return day to the respondent. The only possible disadvantage for the applicant may be the
requirement that she appear in court if the matter is referred for oral evidence. If she does not
appear, the court will have no option, but to set the interim order aside. Though appearance may
prove difficult for the applicant, it is procedurally impossible to protect her rights if she does not
appear. The rights of the respondent should be protected by the granting of interim, and not final
orders ex parte, and opportunities afforded to the respondent to apply to have the order set aside.

113
See paragraph 5.1.25 et seq above.
 41

5.2 Applicability of the Act

A. Excerpt from Issue Paper114

It seems that the applicability of the Act should be broadened to enable parents to obtain
interdicts against their children and vice versa. The question arises whether there is a need
to provide for some form of relief for family members who are not “parties to a marriage”
as defined in section 1(2) of the Act. The Act also appears to be unconstitutional in that,
by omission, it denies relief to a party in a homosexual relationship115.

The further question arises whether the Act should not be amended to include family
members that fall beyond the immediate family scope, for example an aunt, uncle, niece
or nephew. There seems to be the argument that such an amendment would negate the
spirit of the Act which is to prevent violence between parties living together as a family.

B. Problem analysis

5.2.1 Fedler116 points out that the Act excludes women who have never lived with their abusers
in a “marital relationship”. First, this affects domestic workers, who may be prohibited from living
with men on their employers’ property, and who may thus never have lived as “man and wife”
with their partners; secondly, teenage girls who reside with their parents but are experiencing
dating violence at the hands of boyfriends; thirdly, partners in a gay relationship; and fourthly,
prostitutes who are being harassed by particular “clients”.

5.2.2 According to Fedler117 the Act does also not reflect international trends due to its omission
of a number of other intra familial relationships from its protective ambit. Family violence occurs
also between a variety of family members or people who live together. She suggests that it is not

114
Issue Paper at 5.
115
In terms of section 9(3) of the Constitution, 1996, the state may not unfairly
discriminate directly or indirectly against anyone on one or more grounds, including race, gender,
sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability,
religion, conscience, belief, culture, language, and birth.
116
J Fedler “Lawyering Domestic Violence Through the Prevention of Family Violence Act
1993 - An Evaluation After A Year in Operation” 1995 SALJ 231 239.
117
Fedler 1995 SALJ 239 - 240.
 42

the particular relationship between the parties but rather the dangerous household environment
that must be the unit of protection.

5.2.3 Clark118 affirms that it is essential that relief in cases of domestic violence should be widely
available. The Act does not expressly cover domestic violence in extended family situations. Le
Roux119 argues that an amplification of the applicability of the Act would be a big step in creating
a culture of non-violence within all types of relationships.

C. Comparative survey of laws

United Nations framework for model legislation on domestic violence

5.2.4 It is urged that States adopt the broadest possible definitions of acts of domestic violence
and relationships within which domestic violence occurs, bearing in mind that such violations are
not as culture-specific as initially observed, since increasing migration flows are blurring distinctive
cultural practices, formally or informally. The broadest definitions should be adopted with a view
to compatibility with international standards.120 Domestic violence must be distinguished from
intra-family violence and legislated for accordingly.121 The relationships must include: wives, live-
in partners, former wives or partners, girlfriends (including girlfriends not living in the same
house), female relatives (including but not restricted to sisters, daughters, mothers and female
household workers).122

England
5.2.5 The Law Commission (England)123 asserts that there is no doubt that harassment and
violence can occur in many types of relationship. Reference is made to an argument for having no
limitations at all, on the basis that it is difficult to see why there should be any restrictions on the

118
Clark 1996 SAJHR 592.
119
J le Roux "Die Wet op die Voorkoming van Gesinsgeweld: 'n Evaluasie" 1997 De Jure
301 312.
120
UN Framework paragraph 3.
121
UN Framework paragraph 6.
122
UN Framework paragraph 7.
123
Law Com. No. 207 paragraph 3.8.
 43

ground of relationship or residence if the main aim of the legislation is to provide protection from
violence for people who need it. However, the Law Commission (England)124 thinks that this goes
too far. Family relationships can be appropriately distinguished from other forms of association.
In practice, many of the same considerations apply to them as to married or cohabitating couples.
Thus the proximity of the parties often gives unique opportunities for abuse to continue; the
heightened emotions of all concerned give rise to a particular need for sensitivity and flexibility
in the law; there is frequently a possibility that their relationship will carry on for the foreseeable
future; and there is in most cases the likelihood that they will share a common budget.

5.2.6 The Law Commission (England)125 prefers a middle path whereby the range of applicants
is widened to include anyone who is associated with the respondent by virtue of a family
relationship or something closely akin to such a relationship and recommends that a non-
molestation order should be capable of being made between people who are associated with one
another in any of the following ways:
(a) They are or have been married to each other.
(b) They are cohabitants or former cohabitants.
(c) They live or have lived in the same household, otherwise than merely by reason of
one of them being the other’s employee, tenant, lodger, or boarder.
(d) They are within a defined group of close relatives.
(e) They have at any time agreed to marry each other (whether or not that agreement
has been terminated).
(f) They have or have had a sexual relationship with each other (whether or not
including sexual intercourse).
(g) They are the parents of a child or, in relation to any child, are persons who have
or have had parental responsibility for that child (whether or not at the same time).
(h) They are parties to the same family proceedings.

124
Law Com. No. 207 paragraph 3.19..
125
Law Com. No 207 paragraph 3.26.
 44

Australia
The Australian Capital Territory
5.2.7 A domestic violence protection order may be sought to protect a present or former de jure
or de facto spouse of the violent party, a child of either party, a relative and a household member.
“Relative” is defined to cover every kind of near relative. A “household member” means a person
who normally resides, or who was normally resident, in the same household as the violent party
(other than as a tenant or boarder).126 The Community Law Reform Committee (Australian
Capital Territory)127 does not consider that it is desirable for the category of people who can be
protected under domestic violence legislation to be extended to include people in non-cohabitating
intimate relationships.

New South Wales

5.2.8 An apprehended violence order may be obtained to protect any person who fears violence
or harassment. Protection is therefore not confined to a particular class. However, for some
purposes, the legislation does distinguish between domestic violence and violence between non-
intimates. Domestic violence is defined to be when the victim is a former or existing de facto or
de jure spouse of the defendant; a person, not being a boarder or tenant, living, or who has lived,
in the same household as the defendant; a relative which is broadly defined; or a person who has
had an intimate relationship with the defendant.128

Northern Territory
5.2.9 A restraining order may be obtained to protect a limited class of people, namely an existing
or former de facto or de jure spouse.129

126
Laws of Australia paragraph [59].
127
Community Law Reform Committee Domestic Violence: Civil Issues Report 11:
Australian Capital Territory 1996 http://www.dpa.act.gov.au/ag/Reports/CLRC/r11/dvind.html
(accessed on 28 October 1997).
128
Laws of Australia paragraph [63].
129
Laws of Australia paragraph [67].
 45

Queensland
5.2.10 A domestic protection order may be obtained to protect a limited class of people. An
existing or former de facto or de jure spouse or a person who, though not a spouse, is a biological
parent of a child, may seek an order. A “relative” (includes a person whom the aggrieved spouse
regards as a relative or who regards himself or herself as a relative of the spouse making the
application) or “associate” (a person whom the spouse who is making the application regards as
an associate or vice versa, such as a person who works with, or resides in the same house as, the
spouse) cannot make applications in their own right but can benefit from an application made by
a spouse if specifically named in the order.130

South Australia
5.2.11 Domestic violence restraining orders may be obtained by a family member, which means
an existing or former de facto or de jure spouse, a child of whom such a spouse has custody, or
a child who normally resides with such a spouse.131

Tasmania
5.2.12 Any person who fears future violence or harassment may apply for a restraint order. The
legislation is therefore not limited to the protection of a specified class of people.132

Victoria
5.2.13 “Family members” may seek an intervention order against future violence or harassment.
This term covers a former or present de facto or de jure spouse, a relative (all close relatives and
those who would be such relatives if a de facto couple were married), a child who normally or
regularly resides with the violent person, a child of whom the violent person is a guardian and
another person who is or has been ordinarily a member of the household of the violent person.
The latter is not defined and probably does not cover a boarder, tenant or lodger.133

130
Laws of Australia paragraph [71].
131
Laws of Australia paragraph [75].
132
Laws of Australia paragraph [79].
133
Laws of Australia paragraph [83].
 46

Western Australia
5.2.14 Any person in need of protection against future violence or harassment may seek a
restraining order. The legislation is therefore not restricted to protecting a particular class of
people.134

Canada
Alberta
5.2.15 The Alberta Law Reform Institute135 makes the following notable observation:
The difficult task . . . is to define the realm of the domestic in such a way as to include all
individuals viewed as being in need of the protective provisions of the act while at the
same time ensuring that the scope of the act does not become too broad. We are seeking
to limit the scope of the legislation to the domestic realm. However, we are also seeking
to define the domestic realm in a way that includes those individuals whose intimate and
domestic relations do not reflect the norm.

5.2.16 The reasons for seeking to deal specifically with domestic abuse and not with abuse in
general are cited as the following:136
(a) Domestic abuse is a serious social problem which has drastic and devastating
effects on its victims.
(b) There are numerous systemic barriers to victims of domestic abuse accessing the
legal system.
(c) It is assumed that individuals experiencing abuse in non-domestic relationships will
not experience the same kinds of barriers to escaping the perpetrator or accessing
legal remedies and therefore that such individuals may have recourse to the
criminal and civil remedies already in existence.

5.2.17 In circumscribing a sphere of the “domestic” to which the legislation will apply one should
seek to identify relationships which contain the key factors which give rise to the systemic barriers
to obtaining legal protection. The Alberta Law Reform Institute137 identifies the following indicia

134
Laws of Australia paragraph [87].
135
ALRI Report for Discussion No 15 91.
136
ALRI Report for Discussion No 15 93.
137
ALRI Report for Discussion No 15 94.
 47

of vulnerability that should be considered in assessing the advisability of including the type of
relationship in the legislation:
(a) The intimate nature of the relationship.
(b) The potential in the relationship for emotional intensity.
(c) The reasonableness of the inference that the relationship would be presumed by the
parties to be one of trust.
(d) The reduced visibility of the relationship to others or the element of privacy which
keeps the goings-on in the relationship unknown to others.
(e) Dependency or lack of ability of one or both of the parties to unilaterally leave the
relationship.
(f) Ongoing physical proximity of the parties.

5.2.18 The Alberta Law Reform Institute138 considers that the following relationships are
characterised by the indicia of vulnerability:
(a) Individuals sharing the same living quarters:
(i) Married and unmarried heterosexual cohabiting relationships.
(ii) Relationships of cohabitation between homosexuals.
(iii) Members of an extended family occupying a single residence.
(iv) Individuals suffering from abuse by others occupying the same residence
but with whom they do not share any sexual, intimate or family
relationship. (For example, disabled and elderly individuals may live with
other adults who are not sexual partners or family members. Live-in
nannies.)

(b) Relationships beyond the shared residence:

(i) Former cohabitants.
(ii) Dating violence.

5.2.19 There may also be abuse in the following situations:139

138
ALRI Report for Discussion No 15 94 et seq.
139
ALRI Report for Discussion No 15 101 - 102.
 48

(a) Individuals acting as agents for a primary abuser. (Extended family members or
friends of an abuser engaging in abusive conduct toward a victim in an attempt to
bring the victim back to the abuser or punish the victim for attempting to leave the
abuser.)
(b) Abuse between individuals who neither share an intimate relationship nor live in
the same residence. (For example the situation of the abuser who threatens or
harms the friends or relatives of a spouse, notably after an abused spouse has left
the abuser.)

5.2.20 A narrower approach is adopted in the final report.140 The persons entitled to protection
should be "cohabitants", defined as follows:
(a) Persons who have resided together or are residing together in a family relationship,
spousal relationship, or intimate relationship.
(b) Persons who are parents of one or more children, regardless of their marital status
or whether they have lived together at any time.

Alaska
5.2.21 The Alaska Code specifically includes dating relationships as well as the relation between
household members whether they are sexual partners or not. It also expressly includes children.
Protection orders are made available to victims who are a -
spouse or former spouse of the respondent; a parent, grandparent, child, or grandchild of
the respondent; a member of the social unit comprised of those living together in the same
dwelling as the respondent; or a person who is not a spouse or former spouse of the
respondent but who previously lived in a spousal relationship with the respondent or is in
or has been in a dating, courtship, or engagement relationship with the respondent.141

New Zealand

140
ALRI Report No 74 55.
141
Alaska Stat., section 25.35.060 quoted in ALRI Report for Discussion No 15 92.
 49

5.2.22 The object of the New Zealand Domestic Violence Act 86 of 1995 is to reduce and
prevent violence in domestic relationships.142 For the purpose of the Act, a person is in a domestic
relationship143 with another person if the person -
(a) is a partner of the other person; [ “partner”, in relation to a person, means -
(i) any other person to whom the person is or has been legally married;
(ii) any other person (whether the same or opposite gender) with whom the
person lives or has lived in a relationship in the nature of marriage
(although those persons are not, or were not, or are not or were not able
to be, legally married to each other);
(iii) any other person, in any case where those persons are the biological
parents of the same person.]
(b) is a family member of the other person; [ “family member”, in relation to a person,
means -
(i) any other person who is or has been related to the person by blood,
marriage or adoption;
(ii) any other person who is a member of the person’s culturally recognised
family group;
(iii) in the case of partners who are not legally married, any other person who
would be a family member of that person pursuant to the preceding two
paragraphs if the partners were, or were able to be, married to each other.]
(c) ordinarily shares a household with the other person; [A person is not regarded as
sharing a household with another person by reason only of the fact that -
(i) the person has a landlord tenant relationship, an employer employee
relationship or an employee employee relationship with that other person;
and
(ii) they occupy a common dwelling house (whether or not other people also
occupy that dwelling house.]

142
Domestic Violence Act 86 of 1995, section 5(1).
143
Domestic Violence Act 86 of 1995, section 4.
 50

(d) has a close personal relationship with the other person. [A person is not regarded
as having a close personal relationship with another person by reason only of the
fact that the person has -
(i) an employer employee relationship; or
(ii) an employee employee relationship with that other person.
In determining whether a person has a close personal relationship with another
person, without limiting the matters, the court must have regard to -
(i) the nature and intensity of the relationship;
(ii) the amount of time the persons spend together;
(iii) the place or places where that time is ordinarily spent;
(iv) the manner in which that time is ordinarily spent (it is not necessary for
there to be a sexual relationship);
(v) the duration of the relationship.]

USA
5.2.23 Almost all of the states in the USA have legislation that covers former spouses. Twelve
states have statutes granting protection orders to parties in dating (courting) relationships.
Kentucky, Louisiana and Virginia are among the states that allow protection of the present or past
sexual partners of the victim through protection orders. The domestic violence laws in forty-one
states issue civil protection for unmarried parents who have a child in common.144

General

144
Women, Law & Development International State Responses to Domestic Violence -
Current Status and Needed Improvements Washington, DC: The Institute for Women, Law &
Development 1996 73 - 75.
 51

5.2.24 Women, Law & Development International145 reviewed legislation created to address
domestic violence in twenty-one countries.146 They report147 that in cases of violence against
children or dependents, most of the laws reviewed allow a broader category of persons to lodge
complaints on their behalf. Social workers of welfare officers, probation officers, parents and
guardians and persons with whom a child ordinarily resides can make complaints on behalf of
children.

5.2.25 It is important that a broad category of persons including, but not limited to, police
officers, health care providers, and domestic violence assistance centres, be able to file a
complaint, as the victim may be incapacitated, may not have access, or may be unable to file a
complaint due to fear of retaliation.148

D. Recommendation 2 in Discussion Paper 70

5.2.26 In Discussion Paper 70 it was recommended that the legislation:149

(a) Provide that a person (the applicant) may apply for an interdict against another
person (the respondent) if the applicant is or has been associated with the
respondent in any of the following ways:
(i) They are or were married to each other (including marriage according to
any law or custom).
(ii) They (whether the same or opposite gender) live or lived together in a
relationship in the nature of marriage, although they are not, or were not,
married to each other, or are not able to be married to each other.

145
State Responses 66.
146
Argentina, Australia, Barbados, Bahamas, Belize, Cayman Islands, Chile, Cyprus,
United Kingdom, Ecuador, Guyana, Hong Kong, Israel, Malaysia, New Zealand, Peru, Puerto
Rico, Trinidad and Tobago, South Africa, St Vincent and the Grenadines, USA.
147
State Responses 79 - 80.
148
State Responses 80.
149
Discussion Paper 70 paragraph 3.2.35.
 52

(iii) They are the parents of a child or are persons who have or had parental
responsibility for that child (whether or not at the same time).
(iv) They are family members related by consanguinity, affinity or adoption.
(v) They would be family members related by affinity if the persons referred
to in (ii) above were, or were able to be, married to each other.
(vi) They are or were in an engagement or dating relationship.
(vii) They share or shared the same household.

(b) Retain the power to apply for an interdict “by any other person who has a material
interest in the matter on behalf of the applicant” (section 2(1) of the Act).

E. Submissions on Recommendation 2 in Discussion Paper 70

5.2.27 All of the respondents to the Discussion Paper welcome the expansion of the categories
of person who may apply for a protection order. However, despite the expanded definition, many
respondents raise further concerns over those who may be excluded on the basis of the new
expanded categorization, as well as problems with individuals, other than the abused person,
applying for a protection order.

5.2.28 The Department of Justice Gender Unit suggests that in order to avoid a situation where
certain relationships are excluded by the Act, the Act should commence with a strong preamble
in which the social context of domestic violence is described and in which gender dynamics are
explicated. The Unit also suggests that stalking should be addressed as a separate crime, as
stalking is not premised on the existence of any particular relationship between the parties, and
rather addresses the conduct of the stalker. If legislation were introduced to cover this particular
conduct, this may obviate some of the need to try and ensure that every possible relationship is
covered by the new Bill. The Unit also suggests that two different kinds of interdict be introduced,
one to be used for family or domestic relationships, and one to provide for any other kind of inter-
personal violence.
 53

5.2.29 M Horton (Advisor in the Deputy Ministry of Justice) suggests that a definition of
“relatives” or “family members” would aid to clarify the ambit of the Bill. Also, he suggests that
some specific provision should be made to protect adoptive parents and adopted children from
harassment by the birth parents.

5.2.30 The Natal Law Society suggests that couples married according to “any religion” ought
also to qualify for protection.

5.2.31 UWC Community Law Centre expresses the view that the definition of a domestic
relationship is flawed in that its gender-neutrality obscures the reality that the majority of survivors
of domestic violence are women. They argue that this definition will not ensure substantive gender
equality.

The definition excludes certain categories of persons

5.2.32 Some of the respondents claim that despite the broadening of the categories of persons
protected by the Act, certain categories of vulnerable persons are not adequately covered:

The elderly
5.2.33 Concerned Friends of the Frail and Aged and the Democratic Party express their concern
that the rights of the elderly are not expressly protected. The elderly are often abused by family
members with whom they live, or by visitors, or by those in whose care they are entrusted, such
as caregivers in an institution for the elderly.

Dating relationship
5.2.34 Though all respondents are in agreement with the sentiment behind including “dating
relationships” to protect applicants who are teenagers, or who have not lived with the respondent,
many of the respondents raise concern that the term “dating relationship” is insufficiently clear.
Amongst those who stress the importance of clarifying this relationship are the Magistrate: Paarl
who questions what is meant by a dating relationship and asks what would have to be proved by
the applicant in order to qualify for protection, and Tshwaranang Legal Advocacy Centre to end
violence against women which points out that this term does not adequately capture certain
 54

cultural notions of relationships of a romantic kind. SA National Council for Child and Family
Welfare raises similar concerns. The Magistrate: Pietermaritzburg, however, suggests that
magistrates can use their discretion in giving meaning to this section.

Children
5.2.35 The Durban City Police and SA National Council for Child and Family Welfare express
concern that the recommendations do not protect siblings where the violence occurs between
them, nor children who are being abused by their parents.

Person with a material interest applying on behalf of the applicant

5.2.36 Many of the respondents, including the Natal Law Society and SA National Council for
Child and Family Welfare express concern over Recommendation 2(b) in Discussion Paper 70,
despite the fact that this process is already provided for in the Act.

5.2.37 The Department of Justice Gender Unit also expresses concern that this provision will
exacerbate the disempowerment of individual women, but recognizes the utility of this provision
in situations where a child or person with an intellectual disability requires protection. The Unit
as well as M Horton suggest that this provision be limited to circumstances where the applicant
is such a person, and that where women do not feel ready to commence legal proceedings, they
should not be patronized by the interfering intervention of others who determine that they are
acting in her interest. The Unit suggests that where a third party applies for an interdict on her
behalf, this ought to be done on the express authority of the woman, so that she still retains
ultimate control over the decision.

5.2.38 Recommendation 2 in Discussion Paper 70 is endorsed by:

Cape Law Society
Magistrate: Bloemfontein
Magistrate: Pietermaritzburg
Magistrate: Pretoria North
M Horton
Natal Law Society
 55

NICRO, Western Cape

P Thwala, University of Swaziland
The Women’s Lobby
UNISA Health Psychology Unit

F. Evaluation

5.2.39 It is clear that the Act’s definition of “parties to a marriage” is too narrow in scope and
that many relations in the diverse South African society are excluded from the protection of the
Act. In this regard the Act is not compatible with international standards.

5.2.40 Although the United Nations Framework for Model Legislation on Domestic Violence150
urges States to adopt the broadest possible definitions of relationships within which domestic
violence occurs, the obvious limitation is the realm of the domestic. The reasons cited by the Law
Commission (England)151 and the Alberta Law Reform Institute152 for seeking to deal specifically
with domestic abuse and not with abuse in general, are equally applicable to South Africa.
However, as pointed out, the difficult task is to define the domestic realm in such a way as to
include all individuals viewed as being in need of the protective provisions of the Act while at the
same time ensuring that the scope of the Act does not become too broad.

5.2.41 The Law Commission (England)153 submits that the range of applicants should include
anyone who is associated with the respondent by virtue of a family relationship or something

150
See paragraph 5.2.4 above.
151
See paragraph 5.2.5 above.
152
See paragraph 5.2.16 above.
153
See paragraph 5.2.6 above.
 56

closely akin to such a relationship. The Alberta Law Reform Institute154 identifies certain indicia
of vulnerability that should be considered in assessing the advisability of including the type of
relationship in the legislation. The New Zealand legislation155 reflects a combination of these
viewpoints.

5.2.42 It is submitted that there should be comprehensive inclusion of all those exposed to risk
of domestic violence. In this regard it is worthwhile to take note of the recommendations and
enactments of the jurisdictions referred to in the preceding paragraph. It is conceded that a broad
definition of the class of persons eligible to seek protection could be criticised for including
relationships that fall outside the “domestic” realm. However, since the aim is to provide
protection from violence, a definition which is criticised for being too broad is preferable to a
definition that is criticised for being too narrow. If a person who arguably falls outside the
domestic realm is protected by invoking the provisions of domestic violence legislation, it would
be a small price to pay, if any, for the assurance that victims who ought to qualify for the intended
protection are entitled to apply for relief.

5.2.43 Vulnerable people, such as children, the disabled and the elderly ought to be offered
special protection. It is submitted that the legislation should include a special provision that a
child may apply for a protection order without assistance.

5.2.44 In terms of section 2(1) of the Act an application may also be made “by any other person
who has a material interest in the matter on behalf of the applicant”. Where a third party applies
for a protection order on behalf of the applicant, it is desirable for the applicant to consent to such
application. This is to protect applicants from interfering third parties, such as family members,
social workers and others who do not have regard for the applicant’s wishes. Even though certain
applicants may refuse consent in circumstances in which third parties might reasonably want to
override their wishes due to the danger posed to their lives, the consent of an applicant is integral
to the effective operation of the protection order, especially since she is required to appear in
court on the return date. However, where vulnerable persons are unable to provide consent due

154
See paragraph 5.2.17 above.
155
See paragraph 5.2.22 above.
 57

to, for example, incapacitation, the requirement of the applicant’s consent should be dispensed
with.
 58

5.3 Jurisdiction

A. Excerpt from Issue Paper156

There appears to be some confusion as to precisely how jurisdiction is conferred on any
particular court in terms of the Act as regards the initial application for an interdict. Under
the normal rules of civil jurisdiction the applicant must apply to the court having
jurisdiction over the respondent. Jurisdiction of the Magistrate’s Court is governed by the
Magistrate’s Court Act, 32 of 1944, and the Magistrate’s Court has jurisdiction only in
respect of the persons as described in section 28 of the Magistrate’s Court Act. It seems
that under these circumstances section 28(1)(d)157 is applicable since the whole cause of
action arose in that court’s jurisdiction. However, should this present problems in
practice then jurisdiction should be spelt out explicitly in the legislation.

It seems that problems are being experienced in cases where an applicant leaves the
jurisdiction where he or she obtained the interdict and is then advised that he or she must
obtain a new interdict in the new area as the existing interdict does not apply. If this is the
case then the legislation needs to be explicit in this regard.

B. Problem analysis

5.3.1 Both the Act and Regulations are silent as to geographical jurisdiction. In the Rutenberg
case158 it was held that if the powers and limitations of a magistrate who was called on to apply
the provisions of the Act and Regulations could not be sought beyond the bounds of the Act and
Regulations, it would follow that a magistrate would enjoy unlimited geographical jurisdiction,
and the limits imposed thereon by the Magistrates’ Courts Act would not apply. According to
Thring J, that was an absurd result which could not have been intended by the legislature.159

156
Issue Paper at 6.
157
“The persons in respect of whom the court shall have jurisdiction shall be any person,
whether or not he resides, carries on business or is employed within the district, if the cause of
action arose wholly within the district”.
158
Rutenberg v Magistrate, Wynberg 1997 4 SA 735 (C) 751.
159
See also J M van Rensburg “Interdikte in die Landdroshof met Betrekking tot
Gesinsgeweld” 1994 The Magistrate 94 who concludes that the Act, “. . . behalwe vir sover ‘n
aangeleentheid in die Wet genoem op/deur of kragtens die Wet voorgeskrewe wyse gedoen moet
word, nie die Landdroshowewet en -reëls uitsluit nie en dat die Wet dus in samehang daarmee in
die praktyk toegepas moet word”.
 59

5.3.2 The meaning of “cause of action” and the jurisdiction of the Magistrate’s Court in terms
of section 28(1)(d) of the Magistrates’ Courts Act 32 of 1944 was described as follows in
Herholdt v Rand Debt Collecting Co160:
It must be shown, if a magistrate’s court is to have jurisdiction, that every event which is
directly essential to the plaintiff’s right to relief took place within its area of jurisdiction.

Van Rensburg submits161 that it is clear that a family violence issue which gives rise to an
application for an interdict, falls within the meaning of the said description.

5.3.3 Section 4(3) of the Magistrates’ Courts Act 32 of 1944 provides that every process issued
out of any court shall be of force throughout the Republic. Hence, there should be no problem
where an applicant leaves the jurisdiction after an interdict has been granted.

5.3.4 As regards jurisdiction to conduct an enquiry contemplated in section 3(4) of the Act, Van
Rensburg162 points out that in terms of section 90 of the Magistrates’ Courts Act 32 of 1944 the
court within whose district an offence has been committed, has jurisdiction in respect of that
offence.

C. Comparative survey of laws

United Nations framework for model legislation

5.3.5 A complainant alleging an act of domestic violence may be filed in the judicial division
where -
(a) the offender resides;
(b) the victim resides;
(c) where the violence took place; or
(d) where the victim is temporarily residing if she has left her residence to avoid
further abuse.163

160
1965 3 SA 752 (T) 754.
161
Van Rensburg 1994 The Magistrate 98.
162
Van Rensburg 1994 The Magistrate 104.
163
UN Framework paragraph 18.
 60

D. Recommendation 3 in Discussion Paper 70

5.3.6 In Discussion Paper 70 it was recommended that the legislation:164

(a) Afford the applicant a choice of jurisdictional factors as regards the conferment of
jurisdiction in respect of the initial application for an interdict.

(b) Provide that the court in whose area of jurisdiction -

(i) the applicant resides (permanently or temporarily), carries on business or
is employed; or
(ii) the respondent resides, carries on business or is employed; or
(ii) the cause of action arose;
shall have jurisdiction to entertain an application for an interdict.

(c) Provide that an interdict granted in terms of the legislation is enforceable

throughout the Republic.

E. Submissions on Recommendation 3 in Discussion Paper 70

5.3.7 This seems to have been a very welcome recommendation, as all the respondents endorse
it wholeheartedly, only adding and refining the recommendation. For example, the Natal Law
Society suggests that temporary residence of the applicant should also include the place where he
or she finds him or herself. The Women’s Lobby adds that the motivation behind extension of
jurisdiction should be the understanding that violence is directed at the applicant’s person, not her
geographical location. UNISA Law Lecturers recommend that the interdict should also be
enforceable outside the Republic and that thought should be given to provisions analogous to
those in the Reciprocal Enforcement of Maintenance Orders Act 80 of 1963.

5.3.8 Two respondents, the Department of Justice Gender Unit and UWC Community Law
Centre warn that a woman should be able to keep her address confidential in respect of the

164
Discussion Paper 70 paragraph 3.3.23.
 61

respondent to protect her safety. UWC Community Law Centre suggests that the legislation
provide that any court in the Republic has jurisdiction to grant interim or final interdicts, and that
it should not be necessary that the interim and final interdicts be obtained in the same jurisdiction.
This respondent’s greatest concern lies with the safety of the applicant, and it strongly
recommends that an applicant should not be required to provide a residential address to the court,
and that she should be able to provide a reliable postal address so that the court can contact her.
In the alternative, it is suggested that the applicant’s address only be revealed with her consent.

5.3.9 Recommendation 3 in Discussion Paper 70 is endorsed by:

Cape Law Society
Magistrate: Pietermaritzburg
Magistrate: Pretoria North
M Horton
NICRO, Western Cape

F. Evaluation

5.3.10 As regards the conferment of jurisdiction in respect of the initial application for a
protection order, legislation must, in order to be effective, be geared to assist the applicant at all
times and applicants should therefore be afforded a choice of jurisdictional factors. This is in line
with the United Nations framework for model legislation on domestic violence.165

5.3.11 Cognisance should be taken of the reported instances where the applicant has left the
jurisdiction where she obtained the protection order and has been advised to obtain a new
protection order. It is submitted that it is obvious that a protection order for the prevention of
domestic violence should be enforceable throughout the Republic, thereby obviating the need for
any further application to court. The violence is directed at the applicant’s person and not her
geographical location.

165
See paragraph 5.3.5 above.
 62

5.3.12 The question of jurisdiction in respect of an enquiry contemplated in section 3(4) of the
Act is connected with the question of whether a section 3(4) enquiry is regarded as a matter which
should be heard in the criminal court. In paragraph 6.1.22 below it is suggested that the
contravention of the conditions of a protection order granted in terms of domestic violence
legislation should be an offence which is prosecuted in the criminal court. Normal criminal
jurisdiction would therefore apply in the event of a contravention of the conditions of the
protection order.
 63

5.4 Legal representation

A. Excerpt from Issue Paper166

It would appear that the various magistrates' offices have different attitudes to legal
representation at the various stages of the interdict. It depends to a large extent on
whether or not oral evidence is allowed by the various magistrates. There is a feeling that
the Act should be more specific about legal representation and allow it at all stages of the
process.

On the other hand, the Act was promulgated to provide speedy and inexpensive relief to
a party. The moment legal representation is allowed it is more or less incumbent on the
other party to obtain such representation which causes costs to escalate. Supporters of
this latter idea feel that legal representation should be expressly excluded, except as
regards review and appeal procedures.

B. Problem analysis

5.4.1 Although the Act does not expressly provide for legal representation, Coetzee167 refers to
the fact that the courts have on numerous occasions held that every person has the right to legal
representation. This principle is confirmed in section 35 of the Constitution, 1996.168

C. Recommendation 4 in Discussion Paper 70

5.4.2 In Discussion Paper 70 it was recommended that:

(a) No legislation in respect of legal representation be introduced.

(b) The Department of Justice investigate the matters of assistance by the Clerk of the
Court or Registrar during the initial application phase and the issuing of uniform
guidelines to promote effectiveness.

166
Issue Paper at 6.
167
Coetzee 1994 De Rebus 623.
168
It should be noted that section 35 deals only with arrested, detained, and accused
persons.
 64

D. Submissions on Recommendation 4 in Discussion Paper 70

Legal representation allowed or excluded?

5.4.3 The recommendation is that there should be no legislation in respect of legal
representation. Yet some respondents have taken this recommendation to mean that legal
representation is thereby excluded, whereas others have interpreted it to mean that legal
representation can be permitted. The SA National Council for Child and Family Welfare
suggests that the legislation should be explicit: is legal representation allowed or excluded? It
feels that to simply make no provision for legal representation leaves the situation unclear and will
result in different courts doing different things. UWC Community Law Centre states that the
legislation should make it clear that both parties are entitled to legal representation. The
Magistrate: Pietermaritzburg interprets this recommendation to mean that legal representation
should be excluded as is the case in the Small Claims Court. Although he endorses this, attention
is drawn to the possible infringement of the respondent’s constitutional rights. The Natal Law
Society endorses the recommendation as long as it does not expressly exclude legal representation.

Legal representation for the applicant

5.4.4 The Department of Justice Gender Unit warns that in domestic violence matters, it is
important to ensure that the woman is entitled to have a legal representative with her if she so
desires, especially if the respondent chooses to contest the interdict. This role could be filled by
a paralegal, a police officer or a service provider in an NGO authorized by the applicant.
However, lawyers should not be excluded from these proceedings and this should be overtly
clarified in the legislation. It may be arguable that it is discriminatory to create a legal system
where an accused person has the automatic right to legal representation, but a victim of domestic
violence does not. Tshwaranang Legal Advocacy Centre and UWC Community Law Centre
strongly endorse this, and claim that the state should have an affirmative duty to appoint a legal
representative for the applicant. UWC Community Law Centre’s submission states that:
. . . the provision of state-funded legal representation to an abused woman in interdict
proceedings is founded on the need to reduce the effects of gender-based violence and
does not constitute unfair gender discrimination against the respondent. By contrast, it
rectifies that structural imbalance of power that exists between the parties.
NICRO, Western Cape suggests that where the respondent opposes the interdict and obtains legal
representation, some provision ought to be made for the applicant to obtain legal aid.
 65

Assistance by the clerk of the court

5.4.5 The Natal Law Society mentions a number of pilot initiatives in the Durban magistrate’s
court which will hopefully provide support to abused women seeking legal support. The Cape
Law Society proposes that officers of the court and the police be issued with uniform guidelines
to direct and control the ambit of assistance. The National Human Rights Trust as well as the SA
National Council for Child and Family Welfare caution that the clerk of the court is too
overloaded to take on the additional responsibility of assisting an abused woman.

5.4.6 Recommendation 4 in Discussion Paper 70 is endorsed by:

Magistrate: Pretoria North
M Horton (Legal representation should not be expressly excluded.)
The Women’s Lobby

E. Evaluation

5.4.7 Consultation suggests that there is strong support for the view that parties have the right
to legal representation at all stages of the proceedings and that denying either an applicant or a
respondent legal representation at any stage could be unconstitutional. There have also been
suggestions that applicants should be entitled to legal aid on the same terms as an accused in a
criminal case and that they should be informed of that right.169

5.4.8 Although the Constitution, 1996, does not explicitly entrench the right to legal
representation in civil proceedings, any attempt to expressly exclude legal representation would
be constitutionally offensive. It is submitted that the democratic values of equality and freedom
dictate that legal representation should be allowed at all stages of the process. Although the status

169
Section 35(3)(g) of the Constitution, 1996, provides that every accused person has the
right to a fair trial, which includes the right to have a legal practitioner assigned to the accused
person by the state and at state expense, if substantial injustice would otherwise result, and to be
informed of this right promptly.
 66

quo allows for such legal representation, legislation should expressly provide for this to ensure
legal certainty and uniformity of practice in magistrates’ courts.
.
5.4.9 Considering the question of having a legal practitioner assigned to an applicant by the state
and at state expense, regard should be had to the fact that the Constitution, 1996, grants such a
right to arrested, detained and accused persons only.170 It is submitted that extending the right to
applicants in domestic violence civil proceedings, would pave the way for public demand that
similar rights be afforded to other civil litigants, and an already overburdened fiscus having to foot
the bill. Moreover, granting such a right to the applicant would probably encroach upon the
respondent’s right to equal benefit of the law.171 The object of the Legal Aid Board, established
in terms of the Legal Aid Act 22 of 1969, is to render or make available legal aid to indigent
persons and to that end the services of legal practitioners can be obtained.172 Indigent applicants
would therefore be able to apply for legal aid.

170
Constitution, 1996, section 35.
171
Constitution, 1996, section 9(1).
172
Legal Aid Act 22 of 1969, section 3(a).
 67

5.5 Hearing of oral evidence

A. Excerpt from Issue Paper173

The Act appears not to allow for oral evidence. No uniform approach is applied by the
different courts. The poor quality of the original affidavit made by an applicant at the time
of applying for an interdict frequently necessitates oral evidence, particularly when an
order is made for the eviction of the respondent from the matrimonial home.

On the other hand, it is argued that the hearing of oral evidence would again negate the
spirit of the Act since it would only increase the workload of already overworked
magistrates.

B. Problem analysis

5.5.1 In the Rutenberg case174 Thring J found that the procedure to be followed by a magistrate
in terms of the Act was governed by the Magistrates’ Courts Act and the Magistrates’s Court
Rules in so far as these were not inconsistent with the Act and Regulations. Reference was made
to Magistrate’s Court Rule 55(2)(a)175 and it was held that this rule was not in any way
inconsistent with any provision of the Act or Regulations.

5.5.2 Referring to Rule 56(3) of the Magistrates’ Courts Rules,176 Van Rensburg177 argues that
before the magistrate grants the interdict he may, in his discretion, require further oral evidence

173
Issue Paper at 7.
174
Rutenberg v Magistrate, Wynberg 1997 4 SA 735 (C) 755.
175
“(2) Except where otherwise provided, an application need not be supported by affidavit
but in the event of any dispute arising as to the facts, the court may-
(a) receive evidence either viva voce or by affidavit and try the issues in dispute in a
summary manner;”
176
“56. Arrests tanquam suspectus de fuga, interdicts, attachments to secure claims and
mandamenten van spolie
(3) The court may, before granting an order upon such an application, require the
applicant to give security for any damages which may be caused by such order and may
require such additional evidence as it may think fit.”
177
Van Rensburg 1994 The Magistrate 98.
 68

or evidence by way of affidavit. This is a power of the magistrate and not a right of the applicant
to supplement the affidavit.

5.5.3 The Magistrate: Pretoria agrees that there is nothing in the Act which prevents the hearing
of oral evidence and a magistrate is therefore not precluded from calling for such evidence should
circumstances require it. A magistrate can decide whether such evidence is necessary or not and
act accordingly. The Magistrate: Pretoria is against an amendment making it obligatory to hear
oral evidence in all matters, as this will only be a complicating factor.

5.5 Dicker178, on the other hand, submits that because neither the Act nor the Regulations
allow for the oral examination of witnesses, there is no question in a Regulation 5 application
(amendment or setting aside of interdict) of the applicant (original respondent) being able to avail
himself of “his right to apply for the deponents concerned to be called for cross-examination”.
The magistrate should therefore decide the application on the unopposed allegations of fact in the
applicant’s (original respondent’s) affidavit and where there is a dispute of fact, the allegations of
fact in the respondent’s (former applicant’s) affidavits must be accepted as being correct. In
addition the original respondent is saddled with the burden of proof. If - on a conspectus of the
facts that are common cause or cannot be disputed by the original applicant, and the version of
the original applicant, in the case of any conflicts of fact - the original respondent cannot establish
a case for the setting aside or amendment of the interdict, on a balance of probabilities, the
application is doomed to failure.

C. Comparative survey of laws

Australia
The Australian Capital Territory
5.5.5 The applicant must give oral evidence on oath to support the application for an interim
order.179

178
Dicker 1994 De Rebus 215.
179
Laws of Australia paragraph [61].
 69

New South Wales

5.5.6 A complaint for an order may be made orally or in writing and must be substantiated on
oath.180

South Australia
5.5.7 An interim ex parte order can be obtained on affidavit evidence. The applicant must be
prepared to give oral evidence at the proceedings for confirmation of the order.181

Victoria
5.5.8 The applicant must be prepared to provide oral evidence of the urgency which justifies an
ex parte interim order.182

New Zealand
5.5.9 In any proceedings under the New Zealand Domestic Violence Act 86 of 1995 the Court
may, of its own motion, call as a witness any person whose evidence may, in its opinion, be of
assistance to the Court.183 The court may receive any evidence that it thinks fit, whether or not
it is otherwise admissible in a court of law.184

D. Recommendation 5 in Discussion Paper 70

5.5.10 In Discussion Paper 70 it was recommended that the legislation provide that:185

(a) Further oral evidence or evidence by affidavit may be required at the discretion of
the judge or magistrate before an interdict is granted.

180
Laws of Australia paragraph [64].
181
Laws of Australia paragraph [77].
182
Laws of Australia paragraph [85].
183
Domestic Violence Act 86 of 1995, section 82.
184
Domestic Violence Act 86 of 1995, section 84.
185
Discussion Paper 70 paragraph 3.5.25.
 70

(b) The substance of oral evidence heard be noted.

E. Submissions on Recommendation 5 in Discussion Paper 70

5.5.11 Whilst respondents are mostly supportive of a discretionary power given to magistrates
to supplement the information contained in the affidavits with oral evidence, some concerns are
raised about the implications this would have for the applicant. The Department of Justice Gender
Unit suggests that no new processes should be created which may have the effect of delaying the
applicant’s obtaining the interdict. The SA National Council for Child and Family Welfare and
Tshwaranang Legal Advocacy Centre echo the concern that requiring oral evidence may
unnecessarily delay the granting of an urgent interdict. There is also concern that the discretion
of magistrates to hear oral evidence may work to prejudice applicants and may result in further
secondary victimization of the applicant. Tshwaranang states that this recommendation should not
be interpreted to allow the magistrate to require further oral evidence from the respondent as this
will defeat the purpose of a speedy interdict to protect a victim’s rights.

5.5.12 The Magistrate: Pietermaritzburg raises a different concern, namely that if an applicant
is unrepresented and the magistrate tries to elicit oral evidence, the magistrate will be treading a
very thin line between obtaining oral evidence and acting in a representative capacity to assist the
applicant to place a prima facie case on record. This needs to be avoided.

5.5.13 M Horton recommends that standard form affidavits be devised to ensure that all relevant
information is adduced by the applicant to obviate the need for oral evidence.

5.5.14 The Natal Law Society raises the question whether the oral evidence will be noted in
chambers by the judicial officer or will be taped in open court.

5.5.15 Recommendation 5 in Discussion Paper 70 is endorsed by:

Cape Law Society
Magistrate: Pretoria North
UWC Communty Law Centre
 71

Magistrate: Durban
NICRO, Western Cape
F. Evaluation

5.5.16 It is submitted that the argument for allowing the hearing of oral evidence before granting
a protection order is convincing. This view is also supported by the majority of respondents. The
judicial process cannot permit the refusal of relief against domestic violence for want of
compliance by the applicant with requirements of the legislation, where such lack of compliance
may be cured by the hearing of oral evidence. At the courses presented at Justice College for
Registrars and Clerks of the Court they are fully instructed to advise the applicant sufficiently to
supplement the affidavit to obviate the leading of oral evidence. However, this should not
preclude a presiding officer to hear oral evidence to elicit more information where there is lack
of clarity. This is also the position in Australia and New Zealand.186

5.5.17 Although the legal position appears to be that before the presiding officer grants the
protection order he or she may, in his or her discretion, require further oral evidence or evidence
by affidavit, legislation should clear away any uncertainty in this regard. In order to address any
possible prejudice to respondents, presiding officers should be obliged to note the substance of
oral evidence heard by them for the purpose of enabling respondents to reply thereto on the return
date.

5.5.18 In paragraph 5.1.53 et seq above it is argued that provision be made for the granting of
interim protection orders ex parte and a rule nisi calling upon the respondent to show cause on
the return day of the order why the provisional protection order granted against the respondent
should not be made final. On the return day the applicant and the respondent have the opportunity
to present oral evidence.187

186
See paragraph 5.5.5 et seq above.
187
H N Pretorius Burgerlike Prosesreg in die Landdroshowe Vol II Durban: Butterworth
1986 744.
 72

5.6 Service of interdicts

A. Excerpt from Issue Paper188

The general feeling of magistrates is that warrants should be issued only where there has
been personal service on the respondent and that the Act should be amended to make this
clear.

However, there is also a feeling that personal service would defeat the main objective of
the Act, namely to prevent violence.

The general feeling seems to be that provision should be made for service by the South
African Police Service, which service is, at present, regarded as invalid.

B. Problem analysis

5.6.1 In terms of section 2(3) of the Act the interdict shall have no force and effect until served
on the respondent in the prescribed manner. The manner of service is prescribed in Regulations
3 and 4.189

188
Issue Paper at 7.
189
If the respondent is present at the court the interdict may be served by the registrar or
the clerk of the court [Regulation 3(1)]. Thereafter a certified copy of the interdict and the
original warrant of arrest shall be delivered or send by registered post to the applicant [Regulation
3(2)]. If the interdict is not served in this manner, it shall be delivered by the applicant to a sheriff
for service [Regulation 4(1)]. The interdict shall be served by the sheriff by delivering a copy
thereof to the respondent, or if the respondent cannot be found, by delivering it at his place of
residence, work or business, to some person apparently not less than 16 years of age and
apparently residing or working there [Regulation 4(2)]. If the respondent keeps his place of
residence, work or business closed, it shall be sufficient service to affix a copy to the principal
door [Regulation 4(3)]. The registrar or the clerk of the court shall notify the applicant of the
service of the interdict [Regulation 4(6)]. After the interdict has been served, the registrar or the
clerk of the court shall deliver or send by registered post a certified copy of the interdict and the
original warrant of arrest to the applicant [Regulation 4(7)].
 73

5.6.2 The applicant is responsible for the payment of sheriff’s fees for the service of the interdict
effected by the sheriff. The Magistrate may, however, after assessing the relevant circumstances,
such as the financial position of the applicant, order that the State will be responsible for such
fees.190 Apparently this is done by way of the applicant making an affidavit stating her
circumstances and why she cannot afford to pay the sheriff.191 Clark192 reports that although
magistrates can order that the court should pay these fees, many victims are not informed that this
option is available to them.

5.6.3 Fedler193 points out that financial abuse and the withholding of funds are a common feature
of battering relationships and that many women do not have enough money for transport, let alone
an interdict. Sheriff’s fees194 are an unnecessary obstacle to the women’ safety. She suggests an
amendment to the Act to provide explicitly for the costs of service of the interdict to be borne by
the State. Alternatively, the police should be legislatively mandated to serve the interdict.195

5.6.4 According to Novitz196 the chief problem encountered by many applicants is the sheriff’s
fee for service. This fee varies according to the difficulty of the service. Applicants are left in
ignorance of the option that the costs may be borne by the State. She argues for detailed
provisions, either in the Act or Regulations, stating how one may apply for sheriff’s fees to be
waived.197

190
Van Rensburg 1994 The Magistrate 99; Justice Circular 50 of 1993 paragraph 4.3.
191
M Daniels & L Muntingh NICRO Occasional Paper No 3: Report on A Survey of
Women Who Applied for Interdicts Through the Nicro Women’s Support Centre in Terms of the
Prevention of Family Violence Act 133 of 1993 Cape Town: NICRO 1995 8.
192
Clark 1996 SAJHR 596.
193
Fedler 1995 SALJ 243.
194
Le Roux 1997 De Jure 312 quotes the following figures: R150.00 if the interdict is to
be served after hours or over weekends; R125.00 if the interdict is to be served urgently.
Consequently numerous battered women simply cannot afford the interdict.
195
This is supported by Clark 1996 SAJHR 598.
196
Novitz 49.
197
Novitz 58.
 74

5.6.5 Human Rights Watch / Africa198 reports that long delays are experienced as a consequence
of an order that the fee for the interdict to be served be paid by the State. In cases where the
applicant has been exempted from paying the fee, it appears that some sheriffs do not act until they
receive the fee from the Department of Justice. Cases have been reported where women who had
been granted an interdict had waited up to six weeks for the sheriff to deliver service, instead of
the usual one to two days. For a woman at risk of violence, the delay may be life-threatening.
Service of the interdict by the police has the advantage both of saving costs and of ensuring that
the police are aware of the interdict at the exact moment that it comes into force.

5.6.6 Daniels & Muntingh199 report that the time taken to serve the interdict is an issue of some
concern as during this time the applicant will be unprotected, as she will not yet have received her
copy of the interdict and the warrant of arrest. A survey in the greater Cape Town area revealed
that the average time taken to serve the interdict after being granted was 8 days.200 The average
time taken to serve the interdict is too long considering the urgency of the matter. Also, the time
lapse between the interdict being served and the applicant receiving a copy of the interdict and the
warrant of arrest is too lengthy and in this period applicants are often left feeling vulnerable and
powerless.201

5.6.7 Daniels & Muntingh202 recommend that service of the interdict occur on an urgent basis,
and should always be same-day service where possible. In this way the sheriff would furnish the
court sooner with a return of service and an applicant would accordingly be in possession of the
interdict and warrant sooner. Applicants should always be encouraged to obtain the interdict
documents personally from the courts. Where postal service is necessary, court personnel should
ensure that all the necessary documents are sent, and that they are sent immediately upon the court
receiving the sheriff’s return of service.

198
Human Rights Watch 71.
199
Daniels & Muntingh 8.
200
It is, however, important to note that the interdict is not necessarily served in the same
area of jurisdiction where an application is made, but that this will usually be the case.
201
Daniels & Muntingh 16.
202
Daniels & Muntingh 16.
 75

C. Comparative survey of laws

Australia
The Australian Capital Territory
5.6.8 An interim order is binding on the respondent once it is served by the police. The
respondent must have been served with a copy of the order before he or she can be guilty of a
breach. In the Australian Capital Territory, the police serve protection orders on the
respondent.203

New South Wales / Northern Territory / South Australia / Tasmania / Victoria / Western
Australia
5.6.9 Once the interim order is served on the defendant it is effective to protect the victim.204
The defendant must have been served with the order before he or she can be guilty of a breach.205

Queensland
5.6.10 It is not necessary, as it is in other jurisdictions, that the respondent should have been
served with a copy of the order. It is sufficient that he or she was aware of the order to the extent
that it can be said that he or she “knowingly” breached the conditions.206

USA
5.6.11 In most jurisdictions, law enforcement officials are responsible for serving protection
orders.207

Kentucky
5.6.12 The adverse party shall be personally served with a copy of the emergency protective
order, a copy of the notice setting the full hearing, and a copy of the petition.208 An emergency

203
Laws of Australia paragraph [61] - [62].
204
Laws of Australia paragraph [65], [69], [77], [81], [85], [89].
205
Laws of Australia paragraph [66] [70], [78], [82], [86], [90].
206
Laws of Australia paragraph [74].
207
State Responses 86.
208
Kentucky Revised Statutes, section 403.740(4).
 76

protective order shall be reissued for a period not to exceed 14 days if service has not been made
on the adverse party by the fixed court date and time.209

Minnesota
5.6.13 A temporary order shall be personally served upon the respondent.210

General
5.6.14 Women, Law & Development International211 report that in most legislation, the order is
to be served personally to the respondent by the applicant or her agent. Other laws specify that
court or law enforcement agents serve the order. Some laws require the order to be filed with the
police branch in the area in which the parties live.

5.6.15 By having law enforcement officials participate in the service process, perpetrators are
reminded that their actions constitute a violation of the law.

D. Recommendation 6 and Request for Comment 1 in Discussion Paper 70

5.6.16 In Discussion Paper 70 it was recommended that:212

(a) The Regulations specify under what circumstances and how one may apply for the
Sheriff’s fees for the service of the interdict to be borne by the State.

(b) The allegation that certain Sheriffs do not act until they receive the fee be
investigated by the Department of Justice and be dealt with administratively.

209
Kentucky Revised Statutes, section 403. 740(3).
210
Minnesota Domestic Abuse Act, 1992, section 8.
211
State Responses 85 - 86.
212
Discussion Paper 70 paragraph 3.6.29.
 77

(c) The Regulations retain the prescribed manner of service which allows for delivery
of the interdict at the respondent’s place of residence, work or business, to some
person apparently not less than 16 years of age and apparently residing or working
there (Regulation 4(2) ) or affixing a copy to the principal door (Regulation 4(3)).

(d) The Regulations provide for service on the respondent, together with the interdict,
of copies of the initial application, supporting affidavit and, in the event of oral
evidence having been heard, a note by the magistrate/ judge giving particulars of
the supplementary facts which emerged from such oral evidence.

5.6.17 In Discussion Paper 70 specific comment was requested on the Commission’s view that
the SAPS should be involved in the service of interdicts issued in terms of domestic violence
legislation.213

E. Submissions on Recommendation 6 and Request for Comment 1 in Discussion Paper

70

Sheriff’s fees and costs of service

5.6.18 The Magistrate: Pietermaritzburg observes that applicants all claim that they are unable
to afford the costs of the sheriff’s fees and therefore some test should be established to enable the
presiding officer to determine whether this is indeed the case. P Thwala recommends that the
financial status of the applicant ought, as a matter of course, to be determined at the outset and
where it appears that she will need state assistance, this should be automatically provided for.
UWC Community Law Centre suggests that the clerk should have a duty to inform the applicant
of her right to apply for the costs of service to be borne by the state, and that the sheriff should
be obliged to effect service regardless of whether or not the fees for such service have been paid.
Tshwaranang Legal Advocacy Centre submits that costs of service for all interdicts, irrespective
of the financial status of the applicant, must be borne by the state as a matter of course.
Investigations into the financial status of the applicant merely deter the applicant from approaching
the court and cause unnecessary delays in effecting service.

213
Discussion Paper 70 paragraph 3.6.30.
 78

Manner of service on respondent

5.6.19 The Cape Law Society suggests that it should be possible to effect service by affixing a
copy of the interdict to the door of the respondent’s place of residence, work or business since
applicants should be assisted as far as possible to have their safety protected. The Magistrate:
Pietermaritzburg, however, strongly opposes this manner of service as this will make it impossible
for the presiding officer to establish whether there has been proper service or not. M Horton
recommends that the safest route is to ensure personal service on the respondent, even if it is
costly and problematic as it will ensure that the respondent is aware of the terms of the order and
will obviate the possibility of proceedings being unnecessarily delayed by a respondent who claims
he was unaware of the terms of the interdict. The Natal Law Society recommends that provision
should be made for personal service wherever the respondent may be found. NICRO, Western
Cape recommends that the interdict should become effective from the moment it is granted and
not only once it has been served as there are often delays in service.

5.6.20 The SA National Council for Child and Family Welfare recommends that a photograph
be attached to the application for an interdict to facilitate service. The Council also raises the
concern that often the interdict is not in the language of the abuser, and this may make it difficult
to establish whether or not the abuser knows and understands the provisions of the order.
Tshwaranang Legal Advocacy Centre argues that it is the duty of the sheriff to ensure that the
respondent understands the contents of the interdict.

Service by the SAPS

5.6.21 The Cape Law Society, Magistrate: Wynberg, P Thwala, UWC Community Law Centre
and the National Human Rights Trust strongly endorse that the SAPS should be involved in the
service of interdicts and this should be done on a 24-hour basis. The Laws and Administration
Committee of the General Council of the Bar submit that the police are already overburdened and
should not be further burdened with having to serve interdicts. UWC Community Law Centre
suggests that the additional duty will only cause a marginal increase in the role of the SAPS and
if personnel resources are unavailable, resources and budget allocations must be adjusted in
accordance with this priority. It appears that the objection by the SAPS to serving interdicts is the
 79

contention that the interdicts are civil in nature. UWC Community Law Centre strongly disagrees
with this.

Investigation by Justice Department into service by sheriffs

5.6.22 The SA National Council for Child and Family Welfare suggests that time-frames need
to be set to ensure that service is timeously effected by sheriffs. It also recommends that
standardized guidelines for the appointment of sheriffs be issued and enforced and that sheriffs be
trained and supervised to ensure quality control of their services. Tshwaranang Legal Advocacy
Centre goes even further and suggests that failure to serve the interdict within a reasonable time
should be made an offence in terms of the legislation, unless failure is not due to any fault on the
part of the sheriff. UWC Community Law Centre reiterates that the cornerstone of effective
service is urgency and goes on to suggest that the legislation should provide that the sheriff has
the duty to make personnel available to serve interdicts on a 24 hour basis and furnish the SAPS
in the area of jurisdiction of the court with emergency telephone numbers for contacting such
personnel to serve interdicts after hours.

5.6.23 Recommendation 6 in Discussion Paper 70 is endorsed by:

The Laws and Administration Committee of the General Council of the Bar
Magistrate: Pretoria North

F. Evaluation

5.6.24 Since financial abuse and the withholding of funds are a common feature of domestic
violence, it is obvious that the Sheriff’s fee for service can present a problem to applicants and
create an obstacle to their safety. Consultation suggests that applicants are often left in ignorance
of the option that the costs may be borne by the State and that long delays are experienced as a
consequence of an order that the fee for the protection order to be served be paid by the State.
It is averred that some Sheriffs do not act until they receive the fee from the Department of
Justice. For an applicant at risk of violence, the delay may be life-threatening.
 80

5.6.25 Economic disempowerment of women lies at the root of many abusive relationships. The
most common reason for women not leaving abusive relationships is their financial dependence
upon their spouse or partner. Many women, under the Act, experience their economic
disempowerment as the factor that stands between themselves and a protection order, as many
women cannot afford the costs of service. Whilst it would be possible to build into the legislation
a means test to ensure that only indigent women can receive economic assistance from the State
in having the order served, this would place another hurdle for the judicial officer and the woman
to overcome. It raises questions such as: Who bears the onus? What standard of proof is
necessary? Proceedings will be delayed where, for example, the woman cannot produce any
documentation as to her financial situation. Also, it would be problematic in situations where the
applicant is not the victim of the domestic violence, but someone who applies on her behalf. In
essence, it will deter applicants from utilizing the system and delay the proceedings which are
designed to work as quickly as possible.

5.6.26 There are compelling arguments for involving the SAPS in the service of protection
orders. Practical experience of legal practitioners and of frustrated applicants indicate that serious
efforts should be undertaken to involve the SAPS in the service of protection orders. The SAPS
should therefore be mandated to serve the protection order, as this will obviate the need for
service fees and ensure that the police are aware of the protection order at the exact moment that
it comes into force. The involvement of the SAPS will expedite service, especially after-hours.

5.6.27 It is recognised that a requirement of personal service would defeat the main objective of
domestic violence legislation, namely to prevent violence. Respondents are known to evade
personal service.
 81

5.7 Duration of interdicts

A. Excerpt from Issue Paper214

The Act makes no provision for the automatic cancellation of interdicts after a certain
period of time. The opinion was expressed that some sort of limit should be set on the
duration of interdicts. Although this proposal is not without merit, it will, if implemented,
cause a variety of administrative problems, for example giving notice to the applicant will
be essential and in many cases the applicant will no longer be traceable on account of a
change of address.

The question also arises whether the warrant for arrest would also lapse? A respondent
who is arrested on a warrant issued in terms of an interdict that has lapsed would be in a
position to sue for unlawful arrest.

B. Problem analysis

5.7.1 An interdict granted under section 2 of the Act has no return date and need not be
confirmed. It has force until it is successfully challenged in an application to have it set aside.

C. Comparative survey of laws

England
5.7.2 The Law Commission (England)215 asserts that fixed time limits are inevitably arbitrary and
can restrict the courts’ ability to react flexibly to problems arising within the family. In particular,
it is important that orders should continue to be capable of enduring beyond the end of a
relationship, although in some cases, short-term relief will be all that is necessary or desirable.
The Law Commission does not think that a formal distinction between short and long term
remedies is necessary and recommends that orders should be capable of being made for any
specified period or until further order.

214
At 8.
215
Law Com. No. 207 27.
 82

Australia
The Australian Capital Territory
5.7.3 An interim order is valid for 10 days. The order lasts for 12 months unless the court
specifies a shorter time.216

New South Wales

5.7.4 If an interim order is made, the defendant is summoned to appear at a hearing as soon as
possible. The order may last for any period, but if the court does not specify a period then it lasts
for six months.217

Northern Territory
5.7.5 The order may be made for any period which must be specified in the order.218

Queensland
5.7.6 An interim order usually lasts for 30 days but may be extended. The order remains in
operation for two years or for a specified longer period if the court considers that there are special
reasons why it should be for a longer period. The order may be renewed to take effect
immediately upon the expiration of the original order.219

South Australia
5.7.7 After an interim order is made, the defendant is summoned to appear to show cause why
the order should not be continued. No time limit is imposed on the duration of an order and the
court is not required to specify how long the order will last.220

216
Laws of Australia paragraph [61] - [62].
217
Laws of Australia paragraph [65] - [66].
218
Laws of Australia paragraph [70].
219
Laws of Australia paragraph [73] - [74].
220
Laws of Australia paragraph [77] - [78].
 83

Tasmania
5.7.8 An interim order operates for a maximum of 60 days or until further order of the court.
The order lasts for such time as the court considers it necessary to protect the person who applied
for the order.221

Victoria
5.7.9 An interim order operates for the time specified by the court or until a further order is
made. The order lasts for 12 months or a lesser period as the court specifies.222

Western Australia
5.7.10 If an interim order is made, the defendant is summoned to show cause why the order
should not be confirmed. The order lasts for 12 months or for such other period (including longer
than 12 months) as the court specifies.223

Canada
Alberta
5.7.11 The Alberta Law Reform Institute224 notes that there may be concerns about limiting the
duration of ex parte orders. However, such considerations might not apply in the case of final
orders. In some instances a very long-term or permanent order might be fair and desirable.
Consideration should be given to the circumstances in which the duration of orders should be
limited. The final recommendation is that orders should be made for a specified period, which
may include orders that do not expire. Where no period is specified in the order, it should have
effect for three years.225

221
Laws of Australia paragraph [81] - [82].
222
Laws of Australia paragraph [85] - [86].
223
Laws of Australia paragraph [89] - [90].
224
ALRI Report for Discussion No 15 54.
225
ALRI Report No 74 87.
 84

New Zealand
5.7.12 A final protection order continues in force until it is discharged by the court on the
application of the applicant or the respondent.226

USA
Kentucky
5.7.13 An emergency protective order shall be effective for a period of time fixed in the order,
but not to exceed 14 days. Upon the issuance of an emergency protective order, a date for a full
hearing shall be fixed not later than the expiration date of the emergency protective order.227

New Jersey
5.7.14 A final order may be dissolved or modified upon application, but only if the judge is the
same judge who entered the order, or has available a complete record of the hearing or hearings
on which the order was based.228

Missouri
5.7.15 After an ex parte order and at a hearing, the court issues a full order of protection for a
period of time the court deems appropriate, but the order shall be valid for at least 180 days and
not more than one year.229

Model Code on Domestic and Family Violence

5.7.16 An emergency order for protection expires 72 hours after issuance.230 An order of
protection is effective until further order of the court.231

226
Domestic Violence Act 86 of 1995, section 45(2).
227
Kentucky Revised Statutes, section 403.740(3).
228
New Jersey Prevention of Domestic Violence Act of 1991, 2C:25-29 13d.
229
Missouri Revised Statutes, Chap 455, Sec 455.040.1.
230
Model Code, section 305(5).
231
Model Code, section 306(5).
 85

D. Recommendation 7 in Discussion Paper 70

5.7.17 In Discussion Paper 70 it was recommended that the legislation:232

(a) Provide that the return day to show cause why the interim interdict granted against
the respondent should not be made final shall not be less than 10 days after service
has been effected upon the respondent.

(b) Set no time limit on the duration of a final interdict granted in terms of the
legislation.

(c) Retain the respondent’s power to apply for the amendment or setting aside of the
interdict after 24 hours’ notice to the applicant and the court concerned (section
2(2)(c) of the Act) in respect of the interim order and the final order.

E. Submissions on Recommendation 7 in Discussion Paper 70

Retain respondent’s right to apply for setting aside of interdict

5.7.18 Tshwaranang Legal Advocacy Centre points out that given the retention of the
respondent’s further right to apply to the court to have the interdict amended or set aside, the
elaborate protection of the respondent’s rights to audi alteram partem undermines the aims of the
legislation which is to protect women and children from domestic violence. The Judge President:
Northern Cape concurs with this, stating that if the respondent does not see fit to oppose the
granting of a final interdict or if a final interdict is granted despite his opposition, there appears
to be no valid reason why he should subsequently be given a second bite at the cherry unless new
relevant information has come to his knowledge or unless circumstances justifying the amendment
or setting aside of the final interdict have arisen subsequent to its being granted. The Magistrate:
Pietermaritzburg raises the concern that this procedure will create an untenable situation in that
a magistrate will have to sit in judgement on his/her colleague’s decision if a respondent can apply
to have the interdict set aside. The respondent should be entitled to anticipate the return day of

232
Discussion Paper 70 paragraph 3.7.26.
 86

the rule nisi but should not be able to apply to have the interdict set aside once it has been made
final. A final interdict should only be amended or set aside by a High Court in appeal and review
proceedings.

No time limit on duration of final interdict

5.7.19 Many of the respondents who are in favour of Recommendation 1 in Discussion Paper 70,
and even some who do not support it, express concern over the fact that the final interdict as
provided for in terms of the Act is unlimited in duration, and this alone could render the Act
unconstitutional. The Cape Law Society suggests that the duration of interdicts should be limited
to two years. The Magistrate: Durban suggests five to ten years, with a provision that the
interdict may be extended for a further period of time on application by the applicant. The
Magistrate: Pretoria North submits that the time limit should be three or five years. He submits
further that where good cause is shown for granting an extension to the time limit, a court should
consider extending it. The Magistrate: Verulam raises the problem of storage of interdicts if there
is no time limit set. He proposes that interdicts should be valid for ten years and if the interdict is
not renewed by the applicant, it automatically expires. M Horton suggests that interdicts should
last for one year and that courts should have a discretion to make a longer or indefinite order, but
that courts should not have the discretion to make a shorter order except where the respondent
is ordered to leave the home.

5.7.20 Those who support the recommendation that there should be no time limit on interdicts
are the Department of Justice Gender Unit, NICRO - Western Cape and UWC Community Law
Centre (which adds that the legislation should expressly provide that there is no time limit on the
duration of final interdicts).

F. Evaluation

5.7.21 In paragraph 5.1.53 et seq above it is argued that provision be made for the granting of
an interim protection order ex parte with a return date. In terms of the Magistrates’ Courts
Rules,233 an order made ex parte shall call upon the respondent to show cause at a time stated in

233
Rule 56(5)(a).
 87

the order why the order should not be confirmed. Service of such ex parte order shall be effected
on the respondent at least 10 days before the specified return date unless otherwise ordered by
court.234

5.7.22 As appears from the comparative survey of laws,235 the span of time for interim orders
varies between 3 and 60 days. In a number of jurisdictions an interim order operates for the time
specified by the court. The position as set out in the Magistrates’ Courts Rules provides sufficient
flexibility in respect of the duration of interim orders.

5.7.23 A final protection order in situations which do not deal with domestic violence, is one
which is granted without (as a rule) any limitation as to time. It is granted in order to secure a
permanent cessation of an unlawful course of conduct or state of affairs.236 Protection orders in
the context of domestic violence situations should be treated no differently. Violent incidents
cannot be predicted and peaceful interludes are no guarantee that violence has ceased for good.
As asserted by the Law Commission (England),237 it is important that orders should endure beyond
the end of a relationship.

5.7.24 If the court determines on the return day that the interim protection order granted against
the respondent should be made final, it implies that final rights have been determined. Such rights
require perpetual protection. A time limit on a final protection order in respect of domestic
violence is impractical and a variety of administrative problems are anticipated.238

5.7.25 In terms of Magistrates’ Courts Rule 56(6) the return day of an order made ex parte may
be anticipated by the respondent upon 12 hours’ notice to the applicant. In terms of section
2(2)(c) of the Act the respondent has the power to apply for the amendment or setting aside of

234
Rule 9(13)(b).
235
See paragraph 5.7.2 et seq above.
236
H J Erasmus & A M Breitenbach Superior Court Practice Kenwyn: Juta 1994 E8-3.
237
See paragraph 5.7.2 above.
238
See excerpt from Issue Paper above.
 88

the interdict after 24 hours’ notice to the applicant and the court concerned. The procedure of
anticipating the return date can serve as an additional remedy open to the respondent.
 89

5.8 Role of the South African Police Service

For the reader's clarification, an indication is given of the Chapters in which issues involving the
SAPS are discussed:
* Service of the protection order - Chapter 5, paragraph 5.6 et seq.
* The execution of the warrant arrest issued under the proposed legislation -
Chapter 6, paragraph 6.2 et seq.
* Duty to inform applicant of rights - Chapter 7, paragraph 7.1 et seq.
* Arrest without warrant - Chapter 7, paragraph 7.2 et seq.
* Seizure of arm or dangerous weapon - Chapter 7, paragraph 7.4 et seq.
* Notification of police station - Chapter 7, paragraph 7.5 et seq.

The following issues involving the SAPS are expounded in this discussion:
* Application for a protection order on behalf of the applicant.
* Accompaniment of the applicant to collect personal property.

A. Excerpt from Issue Paper239

Two problems were raised in relation to the SAPS’S role in the interdict process. First,
it would appear that the police are refusing to accept criminal charges, particularly of
assault, until an interdict has been granted. Second, persons are being released with a
warning after arrest by the police despite the fact that the Act makes it clear that no
person may be released unless a judge or magistrate orders his or her release [section
3(2)(a)]. In addition, according to information at the Commission’s disposal, the Police
tend to regard family violence as a civil matter and are reluctant to intervene.

B. Problem analysis

5.8.1 Human Rights Watch / Africa240 maintains that in practice, the greatest problem with
implementation of the Act appears to lie with the police. Ignorance about the law within the
police continues to be prevalent. In addition, police response to domestic violence is often

239
At 8.
240
Human Rights Watch 74.
 90

unsympathetic or hostile.241 Resources must be devoted to ensuring that police understand that
domestic violence in a home is a community issue of priority that must not be condoned by the
police in any way.242

5.8.2 According to Fedler's243 experience it is not the magistrates, but the police, who are the
weakest link in the interdict structure:
(a) The police still do not treat domestic violence as a crime.
(b) There is a lack of prompt response by the police when called upon to assist.
(c) There is a reluctance on the part of the police to accept a charge of assault against
a husband or boyfriend, an insensitive approach and a lack of commitment and
vigour when it comes to investigating such a charge.

5.8.3 Clark244 asserts that the effectiveness of the interdict system depends on the cooperation
of the police and magistrates. What is urgently needed is a clarification of police duties in relation
to family violence - either by an internal policy document or an Act of Parliament. Special
measures need to be taken to ensure effective police support for victims in rural areas and
townships. If urgent applications are to be heard, then the police need to be educated about the
interdict system and how to assist with such. The police need special training in the manner of
reporting a domestic violence case and they should be briefed on the seriousness of a domestic
violence case. In addition, they would need to be instructed when to investigate and how to
investigate such a case.

5.8.4 If we accept that a total strategy of combating domestic violence is needed, according to
Bonthuys,245 one of the methods which may be worth considering is authorising the police to act
on behalf of the victim when requested to do so.

241
Human Rights Watch 76 et seq.
242
Human Rights Watch 83.
243
Fedler 1995 SALJ 246.
244
Clark 1996 SAJHR 598.
245
Bonthuys 1997 SALJ 385 - 386.
 91

5.8.5 Clark246 argues that the police should actively assist a woman and her children to leave the
scene of a violent incident and seek to provide an escort for women to return to the family home
to collect their belongings.

5.8.6 Women, Law & Development International247 note that it is important that a broad
category of persons, including police officers, be able to file a complaint, as the victim may be
incapacitated, may not have access, or may be unable to file a complaint due to fear of retaliation.

C. Comparative survey of laws

Australia
5.8.7 In all jurisdictions, the police have standing to apply for civil remedies under the domestic
violence legislation.248

New South Wales

5.8.8 Police are obliged to apply for an order on behalf of a victim of domestic violence unless
they are satisfied that the applicant is applying for an order or there is some other good reason
for the police not to apply for an order. The police must record the reasons for not applying for
an order on behalf of a domestic violence victim. If the victim is a child, the police must apply for
an order.249

Queensland
5.8.9 Police may apply for an order on behalf of the victim where the officer reasonably suspects
that the spouse has been subjected to violence. Police must apply for a protection order where
the officer has arrested someone for violence against a spouse or property. In addition, police
may represent a person seeking an order.250

246
Clark 1996 SAJHR 598.
247
State Responses 80.
248
Laws of Australia Chapter 5.
249
Laws of Australia paragraph [63].
250
Laws of Australia paragraph [71].
 92

South Australia
5.8.10 It is a notable feature of the South Australian practice that in virtually all cases the police
apply for an order on behalf of the victim.251

England
5.8.11 Commenting on the position in Australia, the Law Commission (England)252 points out that
the power of the police to apply for civil remedies is seen as having a number of advantages. In
many cases, the victim is in a state of helplessness because of the violence and is unable to take
any initiative herself. Giving the power to the police removes the burden of taking action from
her, reduces the scope for further intimidation by the perpetrator and leads to far fewer cases
being withdrawn. In addition, it is seen to be in the police’s interests to take steps to stop further
violence because this will eventually lighten their workload. The fact that the police are initiating
the proceedings also has the beneficial effect of bringing home to the respondent the seriousness
of the matter and giving civil proceedings the “weight” they can lack in the eyes of some of the
less law abiding members of society. There is also an argument that having the power to bring
civil proceedings encourages the police to upgrade the importance of domestic violence and
become more aware and sensitive in relation to it. They may also be more prepared to arrest for
breach if they themselves have initiated the proceedings and obtained the order.

5.8.12 The following reservations are expressed on giving such powers to the police:253
(a) The intrusion of the police into the civil law.
(b) The manner in which they might exercise their powers.
(c) The degree of attention which would be paid to the wishes and interests of the
woman involved.
(d) Indiscriminate and insensitive use of such powers could place many women in a
worse position.
(e) Reluctance of the police to become involved.

251
Laws of Australia paragraph [75].
252
Law Com. No. 207 paragraph 5.18.
253
Law Com. No. 207 paragraph 5.19.
 93

(f) The undesirable effect of discouraging prosecutions in cases in which they might
otherwise be brought.

5.8.13 The Law Commission254 notes that the provision of support and assistance is rather
different to actually taking legal proceedings on behalf of someone else and it is difficult to think
of an alternative body which could fulfil the latter role. Often, the police will already be involved
and will have witnessed the aftermath of incidents of domestic violence, if not the incident itself.
They are accustomed to handling these problems and to participating in court proceedings. The
police also represent the role of society in protecting individuals from violence and abuse.
Extending standing to the police would give them greater flexibility in the way they respond to
domestic crises without putting them under any obligation to apply for civil remedies or deterring
criminal proceedings if these are more appropriate.

5.8.14 The Law Commission (England)255 therefore recommends that where the police have been
involved in an incident of molestation or actual or threatened violence, or its aftermath, they
should have the power to apply for civil remedies on behalf of the victim. It is envisaged that the
police would have power to apply for a civil order where they had attended at or following an
incident of molestation or violence, and had reasonable cause to believe that such abuse had
occurred. They could then apply for an order against the aggressor, provided that the people
concerned fell within the relevant categories, and provided that the police consider this would be
an appropriate course of action for them to take. There would be no obligation on the police to
take civil proceedings, but the option would be available either as an alternative to or in addition
to criminal proceedings.

5.8.15 The question of whether the victim’s consent should be necessary before the police bring
civil proceedings is also considered by the Law Commission (England).256 On one view of the
matter, it can be said that for an order to be effective, the active cooperation of the victim is
required. On the other hand, requiring the victim’s consent could be seen as undermining many

254
Law Com. No. 207 paragraph 5.20.
255
Law Com . No. 207 paragraph 5.20 - 5.21.
256
Law Com. No. 207 paragraph 5.22 - 5.23.
 94

of the reasons suggested for giving the police power to bring the proceedings. A third alternative
is to require the police to consult the woman concerned and take account of her views. This
should give the victim a significant degree of influence over the conduct of proceedings by the
police, but does not make her consent or approval the decisive factor in determining whether or
not civil proceedings are issued. The police could then take action where the victim asks them
to and would be in a better position to obtain the necessary information to enable them to
distinguish cases where the woman genuinely does not want civil proceedings issued, from cases
in which she does want some action taken against her assailant but does not dare to initiate or
authorise it directly. The police could also properly emphasise to the assailant that the decision
to issue civil proceedings is out of the victim’s hands. As an additional safeguard it could be
provided that when proceedings are taken by the police, the court should take account of the
wishes of the victim before making any order.

5.8.16 The Law Commission (England)257 accordingly recommends that the police should be
under a duty to consult the victim and to take account of her views in deciding whether to issue
and how to conduct any civil proceedings. In cases where proceedings are brought by the police,
the court should have a duty to take the victim’s views into account before making any order.

Canada
Alberta
5.8.17 The Alberta Law Reform Institute258 refers to significant difficulties involving possession
of personal property by victims of domestic abuse. It is often the case that they leave the
residence in an emergency situation, going to a shelter or to the home of a friend, and they then
face the difficulty of having left their personal possessions behind in the residence and have no way
of returning to the residence in safety to collect them. The difficulty of setting up a new home
without access to one’s clothes and other personal effects in a situation of financial stress is a
problem for many. Personal items like cots and highchairs are often essential to the victims’s
ability to take proper care of children that they have taken with them when fleeing the residence.

257
Law Com. No. 207 paragraph 5.23.
258
ALRI Report for Discussion No 15 142 - 143.
 95

5.8.18 It is recommended259 that the legislation should empower the court to order a police officer
to accompany the applicant to a specified residence to collect specified personal property. Since
the assailant might intimidate the victim out of the sight of the police officer, such orders, if
ultimately granted, should be clear that the police officer must remain with the applicant at all
times. The recommendation is confirmed in the final report.260

Nova Scotia
5.8.19 The Nova Scotia proposed legislation261 empowers the court to grant an order, which shall
be restricted in duration, requiring that a police officer accompany either party to a residence or
supervise the removal of personal belongings in order to ensure the personal safety of the victim.

Saskatchewan / British Columbia

5.8.20 Saskatchewan262 and British Columbia263 have similar provisions directing a peace officer
to accompany, within a specified time, a specified person to the residence to supervise the removal
of personal belongings in order to ensure the protection of the victim.

D. Recommendation 8 and Request for Comment 2 in Discussion Paper 70

5.8.21 In Discussion Paper 70 it was recommended that:264

(a) The SAPS take cognisance of the criticism and guidelines for conduct.

(b) The Department of Justice investigate, in consultation with the SAPS, the
possibility of furnishing police stations with the necessary application for interdict
forms and requiring the SAPS to assist applicants with the affidavits.

259
ALRI Report for Discussion No 15 144.
260
ALRI Report No 74 72.
261
Quoted in ALRI Report for Discussion No 15 143.
262
Saskatchewan Victims of Domestic Violence Act S.S. 1994, c.V-6.02, section 7(1)(e).
263
Quted in ALRI Report for Discussion No 15 201 - 203.
264
Discussion Paper 70 paragraph 3.8.37.
 96

5.8.22 In Discussion Paper 70 specific comment was requested on empowering:265

(a) The SAPS to apply for an interdict on behalf of the applicant.

(b) The court to order a police officer to accompany the applicant to a specified
residence to supervise the collection of specified personal property.

E. Submissions on Request for Comment 2 in Discussion Paper 70

SAPS applying for interdicts on behalf of the applicant

5.8.23 Concerned Friends of the Frail and Aged particularly endorse this recommendation in
respect of women, children and the elderly who are in need of support. The Department of
Justice Gender Unit suggests that the SAPS be given authority to apply on behalf of an applicant,
as this will open the door for increased police participation and assist them to develop confidence
and understanding of the issues. Other respondents who support this recommendation are M
Horton, the Natal Law Society (which raises concerns about training and personnel), the National
Human Rights Trust, NICRO - Western Cape, the Magistrate: Verulam, the Democratic Party
and the Women’s Lobby. The SA National Council for Child and Family Welfare, the Gender
Advocacy Programme and the Department of Justice Gender Unit are in favour of this on
condition that police are properly trained in the field of domestic violence and gender sensitivity.
The Cape Law Society and Gauteng Members of the ALS Family Law Standing Committee
suggest that the circumstances in which the police can apply for interdicts on behalf of applicants
be limited to circumstances in which the applicant is unable, by virtue of physical injury or
emotional frailty, to personally make such application.

5.8.24 However, a number of respondents strongly oppose this recommendation. The Laws and
Administration Committee of the General Council of the Bar, P Thwala and the Magistrate:
Pietermaritzburg submit that it is not appropriate for the SAPS to apply for an interdict on behalf
of the applicant, but rather that the SAPS should be given guidelines to assist applicants in
obtaining an interdict.

265
Discussion Paper 70 paragraph 3.8.38.
 97

5.8.25 UWC Community Law Centre states that the disadvantages of allowing the SAPS to apply
for interdicts on behalf of applicants outweigh the advantages. The lack of attention that would
be paid to the wishes and interests of the woman involved, the indiscriminate and insensitive use
of such powers and the well-documented reluctance of the police to become involved in domestic
violence cases militate strongly against this recommendation being successfully implemented. This
organization is particularly concerned about the discretion that would be conferred on police
officers to decide whether to apply for an interdict or not, and that the exercise of this discretion
will inevitably be influenced by the very factors that make implementation of the Act problematic,
namely lack of sensitivity, ignorance and indifference.

SAPS accompaniment to residence to supervise collection of personal property

5.8.26 This recommendation is endorsed by the Laws and Administration Committee of the
General Council of the Bar, the Democratic Party, Magistrate: Pietermaritzburg, Magistrate:
Pretoria North, Natal Law Society, NICRO - Western Cape, P Thwala, the Women’s Lobby,
UNISA Health Psychology Unit, SA National Council for Child and Family Welfare, Gauteng
Members of the Als Family Law Standing Committee and Centre for Peace Action. The
Department of Justice Gender Unit suggests that a directive be given to police requiring them to
render assistance where they are requested to do so. M Horton proposes that the court should
also be empowered to order the police to supervise the respondent’s collection of property,
especially in cases where he has been ordered to vacate the matrimonial home. UWC Community
Law Centre suggests the addition of a provision which provides that the police officer remain with
the applicant at all times and take appropriate steps to ensure her safety.

F. Evaluation

5.8.27 There is extensive criticism of the role of the SAPS in combatting domestic violence.
However, it is clear that little can be done by way of legislative intervention to remedy the
situation. Continued education and training to clarify the SAPS’s role are required to ensure
effective policing in domestic violence cases.
 98

5.8.28 In all jurisdictions in Australia the police have locus standi to apply for civil remedies
under the domestic violence legislation.266 The Law Commission (England)267 has made a careful
analysis of the advantages of empowering the police to apply for civil remedies on behalf of the
victim in domestic violence cases. The conclusion is that such a power should be an option
available to the police either as an alternative to or in addition to criminal proceedings. There is
a strong argument in favour of empowering the SAPS to apply for a protection order on behalf
of a victim of domestic violence.

5.8.29 In paragraph 5.2.44 above it is suggested that the legislation provide that the application
for a protection order may be brought on behalf of the applicant by any other person who has a
material interest in the well being of the applicant. Although one could probably argue that the
police would have a material interest in the matter on behalf of the applicant, there should be no
uncertainty as to the role of the SAPS in this regard and a power of this nature should be
explicitly provided for in respect of the SAPS.

5.8.30 Concerns raised that the SAPS will exercise discretion in a random manner, and not
necessarily with the applicant’s interests at heart, are remedied by the provision that no person
may apply on behalf of an applicant without consent.

5.8.31 The difficulties referred to by the Alberta Law Reform Institute268 involving possession of
personal property by victims of domestic abuse are equally applicable to the situation in South
Africa. Consultation suggests that victims often have to leave the residence in an emergency
situation without having access to essential personal possessions. Legislation should empower
the court to order a police officer to accompany the applicant to a specified residence to supervise
\the collection of specified personal property. Jurisdictions in Canada269 have provisions to this
effect.

266
See paragraph 5.8.7 et seq above.
267
See paragraph 5.8.11 et seq above.
268
See paragraph 5.8.17 above.
269
See paragraph 5.8.18 et seq above.
 99

5.9 Review, appeal and bail

A. Excerpt from Issue Paper270

The Act currently makes no provision for appeal or review, nor for bail pending review.271
It is felt that the legislature should spell this out in the Act.

B. Problem analysis

5.9.1 Dicker272 argues that because the Act contains no provision for a right of appeal, the only
recourse of an aggrieved party is by means of the procedure of common law review of an
administrative act. This course of action would be available only in the limited circumstances that
give rise to a right to have an administrative act reviewed by the High Court.273 An application
for review would have to be brought under Rule 53 of the Uniform Rules of Court.274

270
At 8.
271
It should be noted that, in addition to the question of bail pending review, it is also
uncertain whether bail may be granted to a respondent where the enquiry into his alleged breach
of the conditions of the order is postponed to a later date.
272
Dicker 1994 De Rebus 215.
273
See also Clark 1996 SAJHR 594.
274
Rule 53(1) of the Uniform Rules of Court provides as follows:
“(1) Save where any law otherwise provides, all proceedings to bring under review
the decision or proceedings of any inferior court and of any tribunal, board or officer
performing judicial, quasi-judicial or administrative functions shall be by way of notice of
motion directed and delivered by the party seeking to review such decision or proceedings
to the magistrate, presiding officer or chairman of the court, tribunal or board or to the
officer, as the case may be, and to all other parties affected-
(a) calling upon such persons to show cause why such decision or
proceedings should not be reviewed and corrected or set aside, and
(b) calling upon the magistrate, presiding officer, chairman or officer,
as the case may be, to despatch, within fifteen days after receipt of the notice of motion,
to the registrar the record of such proceedings sought to be corrected or set aside,
together with such reasons as he is by law required or desires to give or make, and to
 100

5.9.2 In the Rutenburg case275 it was held that a magistrate, in granting, setting aside or
amending an interdict under the Act, acted in his judicial capacity as the officer presiding over his
court. The jurisdiction, powers and procedure of that court were to be found, then, in the first
instance, not in the provisions of the Act and Regulations, but in those of the Magistrates’ Courts
Act 32 of 1944 and the Magistrates’ Courts Rules. The latter provisions did not cease to apply
to a magistrate simply because, in a particular case, he was applying the Act and Regulations: he
was basically governed by the relevant provisions of the Magistrates’ Courts Act 32 of 1944 and
the Magistrate’s Court Rules which applied to and regulated the proceedings in his court. It was
only where those were expressly or by clear implication extended or departed from in the Act and
Regulations that they would not apply.

5.9.3 According to Coetzee276, section 83277 of the Magistrates’ Courts Act 32 of 1944 accords
the respondent the right to appeal if his application for the amendment or setting aside of the
interdict does not succeed.

5.9.4 Van Rensburg278 states that the provisions of the Magistrates’ Courts Act 32 of 1944279
and the Criminal Procedure Act 51 of 1977280 in respect of appeal and review are, with the
necessary amendments, applicable to the interdict proceedings and the criminal investigation in
terms of the Act.

notify the applicant that he has done so.”

275
Rutenberg v Magistrate, Wynberg 1997 4 SA 735 (C) 750 - 751.
276
Coetzee 1994 De Rebus 625.
277
In terms of section 83(a) of the Magistrates’ Courts Act 32 of 1944 a party to any civil
suit or proceeding in a court may appeal to the provincial or local division of the High Court
having jurisdiction to hear the appeal, against any judgment of the nature described in section 48.
Jones & Buckle The civil Practice of the Magistrates’ Courts in South Africa Vol I Eighth edition
by H J Erasmus Cape Town: Juta 1988 at 192 observe that an interdict against the doing of
something also falls within the scope of section 48.
278
Van Rensburg 1994 The Magistrate 106.
279
Chapter XI.
280
Chapter 30.
 101

5.9.5 Section 35(3)(o) of the Constitution, 1996, provides that every accused has the right to
a fair trial, which includes the right of appeal to, or review by, a higher court.

5.9.6 It is clear to Van Rensburg281 that a respondent arrested in terms of section 3(1) of the Act
may at any time make an after hours application for bail. He refers to section 60 of the Criminal
Procedure Act 51 of 1977282 and to the Supreme Court of Appeal’s283 interpretation of the section.
The provision that a respondent shall as soon as possible be brought before a judge or magistrate
(section 3(2)(b) of the Act) will be interpreted strictly and accordingly it can be argued that the
respondent is, in essence, in the same position as an accused who applies for bail.

5.9.7 Section 35(1)(f) of the Constitution, 1996, provides that everyone who is arrested for
allegedly committing an offence has the right to be released from detention if the interests of
justice permit, subject to reasonable conditions.

5.9.8 Section 60(11) of the Criminal Procedure Act 51 of 1977, after amendment by the
Criminal Procedure Second Amendment Act 85 of 1997 (with effect from a date to be
proclaimed) provides, inter alia, as follows:
where an accused is charged with an offence referred to-
(b) in Schedule 5284 . . . the court shall order that the accused be detained in custody
until he or she is dealt with in accordance with the law, unless the accused, having been
given a reasonable opportunity to do so, adduces evidence which satisfies the court that
the interests of justice permit his or her release.

C. Comparative survey of laws

281
Van Rensburg 1994 The Magistrate 103.
282
Section 60(1)(a) provides that an accused who is in custody in respect of an offence
shall be entitled to be released on bail at any stage preceding his or her conviction in respect of
such offence, unless the court finds that it is in the interests of justice that he or she be detained
in custody.
283
Minister van Wet en Orde v Dipper 1993 3 SA 591 (A).
284
Schedule 5 lists, inter alia, the offences of murder, attempted murder involving the
infliction of grievous bodily harm, rape, and indecent assault on a child under the age of 16 years.
 102

Australia
New South Wales / Tasmania / Victoria
5.9.9 A respondent to an application for a protection order is treated for bail purposes as if he
or she is facing criminal proceedings. This means that, if proceedings are adjourned or an order
is not made immediately, the court may impose bail conditions to protect the victim.285

New Zealand
5.9.10 Where a person is arrested for breach of a protection order and charged with an offence
of contravening a protection order, the person must not be released on bail during the 24 hours
immediately following the arrest.286

D. Recommendation 9 in Discussion Paper 70

5.9.11 In Discussion Paper 70 it was recommended287 that the legislation provide that the
provisions in respect of appeal and review contained in the Magistrates’ Courts Act 32 of 1944,
the Supreme Court Act 59 of 1959, and the Criminal Procedure Act 51 of 1977, shall apply to the
interdict proceedings and the criminal investigation.288

E. Submissions on Recommendation 9 in Discussion Paper 70

5.9.12 The Natal Law Society supports this recommendation in principle but advises that the
procedure should be spelled out in the legislation so that unrepresented persons have immediate
access to the procedures.

285
Laws of Australia paragraph [23], [27], [28].
286
Domestic Violence Act 86 of 1995, section 51.
287
Discussion Paper 70 paragraph 3.9.22.
288
In Discussion Paper 70 it was recommended (paragraph 4.1.30) that the contravention
of the conditions of an interdict granted in terms of domestic violence legislation be an offence
which is prosecuted in the criminal court. This implies that the ordinary rules of bail would apply
to a respondent arrested for a breach of the interdict.
 103

5.9.13 UWC Community Law Centre claims that the recommendation fails to clarify the position
of the applicant. This respondent recommends that the legislation provide that section 83(b) of
the Magistrate’s Court Act is applicable to interdict proceedings to ensure that both the refusal
to grant a temporary interdict as well as the granting of an interdict are appealable. It is further
argued that the application of the ordinary rules of criminal procedure, albeit advantageous to the
accused, will unfairly disadvantage the abused woman by denying her the right to appeal against
an acquittal. Because the complainant is not a party to the proceedings in criminal proceedings for
contempt of court and domestic violence offences, she has no right of appeal. UWC Community
Law Centre advocates a completely new approach based on the German Nebenklagerin
procedure in which the complainant becomes an ancillary prosecutor with all the rights of a
prosecutor, including the right to lodge an appeal against the judgement of the court independently
from the prosecutor. This approach, it is argued, will substantially reduce the secondary
victimization suffered by complainants in domestic violence cases and will promote the ideal of
substantive gender equality.

5.9.14 The Department of Justice Gender Unit states that ordinary bail provisions apply after the
arrest and if the hearing is postponed for any reason. Guidelines may be required in this regard
because the appropriateness of bail in domestic violence situations can be quite difficult to assess.
Men who are violent towards their partners may, in all other respects, appear to be model citizens.
They may have a stable home and job, significant local family ties and no previous convictions.
They may pose no risk to the general community but they represent a huge risk to one person and
they know where she lives, works, visits and frequents. The Unit proposes that a special set of
criteria, which prioritises the risk to the applicant as the most significant factor to be taken into
account, should be devised.

5.9.15 Recommendation 9 is endorsed by:

The Cape Law Society
Magistrate: Pietermaritzburg
Magistrate: Pretoria North
M Horton
NICRO, Western Cape
 104

SA National Council for Child and Family Welfare

F. Evaluation

5.9.16 It is clear that the absence of explicit provision for appeal and review in the Act gives
cause for considerable confusion and that the legislation should provide for this. The Supreme
Court Act 59 of 1959 and the Uniform Rules of Court; the Magistrates’ Courts Act 32 of 1944
and the Magistrates’ Courts Rules; and the Criminal Procedure Act 51 of 1977289 contain detailed
provisions for appeal and review in civil and criminal proceedings. For this reason it is not
deemed necessary to encumber the domestic violence legislation with detailed provisions in this
regard, except to provide that the parties to the proceedings have a right to appeal or to bring
proceedings under review in accordance with the provisions of the aforementioned Acts.

5.9.17 The amendment to the Criminal Procedure Act referred to in paragraph 5.9.8 above in
which an accused charged with a serious offence is required to adduce evidence which satisfies
the court that he should be released on bail, may be equally applicable to situations in which a
respondent is arrested for a breach of the protection order. Instances of domestic violence are part
of a pattern of violence in South Africa and it can be argued that the legal system is therefore
obliged to treat breaches of protection orders with the requisite punitive rigour.

289
In paragraph 6.1.22 below it is postulated that the contravention of a protection order
granted in terms of domestic violence legislation should be an offence which is prosecuted in the
criminal court.
 105

5.10 Definition of domestic violence

A. Excerpt from Issue Paper290

The Act does not adequately define the grounds upon which an interdict should be
granted. A comprehensive definition of family violence is suggested which should include
physical, mental and sexual abuse.

The Act offers no protection to a victim who is stalked by an aggressor. The aggressor
follows the victim, monitors his or her daily movements and generally harasses him or her.

B. Problem analysis

5.10.1 Human Rights Watch / Africa291 points out that it is left to the individual magistrate to
determine whether the abuse qualifies for an interdict. Section 2(1)(a) and (d) of the Act refers
to “assault or threaten” and “any other act”. These sweeping provisions allow magistrates overly
broad discretion to determine what constitutes abuse. This has resulted in a lack of consistency
between various jurisdictions. It is also unclear whether most magistrates would view emotional
or psychological harassment, not coupled with physical violence or threats of violence, as abuse.

5.10.2 According to Fredericks & Davids292 the prevention of violence within the family is central
to the Act, yet there is no definition of violence contained in section 1. The reference to “assault”
or a “threat” in section 2(1)(a) of the Act is clearly inadequate as violence consists not only of the
infliction of injury by way of physical force or a threat to harm or injure, but also the infliction of
emotional, verbal and psychological abuse. According to the authors it is clear, however, that the
Act is aimed only at physical violence and a threat is relevant only to the extent that it is ancillary
to the violence.

5.10.3 Novitz293 refers to a problem identified in the United States, namely that a survivor must
prove that a substantial degree of violence has been used against her before she becomes eligible

290
At 9.
291
Human Rights Watch 70.
292
Fredericks & Davids 1995 TSAR 487.
293
Novitz 40 - 41.
 106

for a restraining order.294 One important issue is whether in practice, the lack of clarity in the Act
will lead to similar burdens of proof being placed upon South African women. There needs to be
clarification of the violence the Act is intended to address and the grounds upon which a
magistrate may grant an interdict.295 A related problem is the broad scope of section 2(1) which
sets out the potential content of interdicts granted under the Act. The extent to which section
2(1)(d) can be used to introduce innovative requirements into an interdict, for example, to cease
stalking, remains uncertain.296

5.10.4 Fedler297 points out that, because the interdict is granted on the word of just one party,
certain magistrates require proof of ongoing abuse in the form of doctors’ reports, police
documentation or disregarded peace orders. Many women are unable to produce the required
proof. The requirement by some magistrates that women produce evidence of ongoing abuse is
acutely at odds with the reality of the lives abused women lead. To ensure fairness there must be
uniformity in the qualifying requirements for the interdict among the various magistrates’ courts.298

5.1 Clark299points out that family violence is a global problem which cannot be narrowly
defined. It should include verbal harassment in the form of constant threats; vicious criticism or
demeaning insults either in private or in the presence of family members or visitors; inadequate
allocation of the family resources so that the victim, because of her economically weak position
is forced to remain in the home as a prisoner of the perpetrator of the violence.

5.10.6 No specific provision is made in the Act for the protection of an applicant who is stalked
by the respondent away from the home. Stalking often forms an integral part of the abuse suffered
by a battered woman and should be addressed directly.300

294
See also Clark 1996 SAJHR 593.
295
Novitz 58.
296
Novitz 42.
297
Fedler 1995 SALJ 244.
298
Fedler 1995 SALJ 244 fn 59.
299
Clark 1996 SAJHR 593.
300
Clark 1996 SAJHR 593; Bonthuys 1997 SALJ 385.
 107

5.10.7 Le Roux301submits that the uncertainty as to what conduct qualifies as "domestic violence"
can be remedied by the insertion of a detailed list describing the type of conduct that would
constitute domestic violence. However, such a list should not purport to be a numerus clausus
of types of conduct.

C. Comparative survey of laws

United Nations framework for model legislation

5.10.8 It is urged that states adopt the broadest possible definition of acts of domestic violence
with a view to compatibility with international standards.302

England
5.10.9 The Law Commission (England)303 refers to three possible approaches to the issue of the
definition of the criteria for non-molestation orders:
(a) To define the criteria quite precisely, perhaps singling out the use or threat of
violence.
(b) To leave them undefined.
(c) To adopt a broad statutory criterion, protecting the health, safety or well-being of
the applicant or any child concerned.

5.10.10 It is recommended304 that there should be no statutory definition of molestation.

An acceptable degree of flexibility is provided by a model that empowers the court to grant an
order where this is just and reasonable having regard to all the circumstances including the need
to secure the health, safety or well-being of the applicant or a relevant child.305

Australia

301
Le Roux 1997 De Jure 312.
302
UN Framework paragraph 3.
303
Law Com. No. 207 paragraph 3.3.
304
Law Com. No 207 paragraph 3.1.
305
Law Com. No. 207 paragraph 3.7.
 108

The Australian Capital Territory

5.10.11 The applicant must establish that the respondent has engaged in violent conduct
and is likely to do so again, or has threatened such conduct and is likely to carry out the threat.306

New South Wales

5.10.12 The applicant must establish that he or she has reasonable grounds to fear, and in
fact fears, either violence or harassment. Unless otherwise ordered, every order is taken to
prohibit stalking or intimidation.307

5.10.13 In New South Wales stalking, as defined, is a criminal offence. Stalking means the
following of a person about, watching, frequenting of the vicinity of, or an approach to, a person’s
place of residence, business or work or any place that a person frequents for the purpose of any
social or leisure activity.308

Northern Territory
5.10.14 It must be established that the defendant has caused, or threatened to cause,
personal injury to the victim or damage to the victim’s property, or has engaged in provocative
or offensive conduct and is likely to repeat that conduct or carry out the treat.309

5.10.15 Stalking, as defined, is a criminal offence. It includes following, loitering outside

where the other person is, interfering with property of the other person, keeping the other person
under surveillance or acting in any other way that could reasonably be expected to arouse the
other person’s apprehension or fear.310

Queensland

306
Laws of Australia paragraph [60].
307
Laws of Australia paragraph [66].
308
Laws of Australia paragraph [45].
309
Laws of Australia paragraph [68].
310
Laws of Australia paragraph [46].
 109

5.10.16 It must be established that violence or intimidation has occurred or been

threatened, and violence and intimidation are likely to happen again or the threat is likely to be
carried out.311

5.10.17 Stalking, as defined, is a criminal offence. It includes following, loitering near,

watching or approaching another person or their place of work, residence or where they visit,
telephoning, interfering with property, giving or leaving offensive material, harassing, intimidating,
or threatening another person.312

South Australia
5.10.18 The court must be satisfied that the defendant may, unless restrained, cause
personal injury or damage to property or behave in an intimidating or offensive manner.313

5.10.19 Stalking is a criminal offence. The South Australian provision is similar to that of
the Northern Territory, but it also includes giving or leaving offensive material.314

Tasmania
5.10.20 It must be established that the defendant has threatened violence and is likely to
carry out that threat, or that he or she has been violent or harassing and is likely to repeat that
conduct.315

Victoria
5.10.21 It must be established that the defendant has been violent or harassing to a family
member, or has threatened violence, and is either likely to do so again or is likely to carry out the
threat.316

311
Laws of Australia paragraph [72].
312
Laws of Australia paragraph [47].
313
Laws of Australia paragraph [76].
314
Laws of Australia paragraph [46].
315
Laws of Australia paragraph [80].
316
Laws of Australia paragraph [84].
 110

Western Australia
5.10.22 It must be established that the defendant has been violent or harassing and is likely
to be so again or has threatened violence and is likely to carry out the threat.317

Canada
Alberta
5.10.23 The Alberta Law Reform Institute318 is of the view that an understanding of the
nature of abusive relationships is necessary to begin to make effective and reasonable decisions
about what sort of conduct should be seen as giving rise to a need for protection. Ultimately the
view is held that an individual should be entitled to apply for an order in any circumstance where
the court is of the view that controlling and abusive behaviour is such as to justify the granting of
a right to apply.319 Examples of what ought to be specified as included in an understanding of
abusive and controlling behaviour are identified. It is, however, emphasised that these examples
should not be taken as limiting the notion of controlling and abusive behaviour that the court
might properly take into consideration in making a just determination of whether an application
should be allowed.

5.10.24 In any given case it might be that a single type of conduct might be sufficient to
warrant the granting of an order. Thus, it ought not to be required that multiple types of conduct
be present before an individual be entitled to apply for an order. However, where multiple types
of abuse are present, the legal process should allow for a broad contextual view of that abuse to
be taken by the court in assessing the nature of a need for protection. Any of the behaviours
considered taken in isolation might lead the court to conclude that protection is unnecessary or
that limited remedies will suffice to meet the needs of the applicant. However, the court must at
all times consider the full context of the abusive relationship with a view to understanding the
effect and threat posed by any accumulation of abusive and controlling conduct.320

317
Laws of Australia paragraph [88].
318
ALRI Report for Discussion No 15 59.
319
ALRI Report for Discussion No 15 71.
320
ALRI Report for Discussion No 15 72.
 111

5.10.25 The Alberta Law Reform Institute321 takes the view that legislation should begin
by setting out a general section which entitles an individual to apply for an order where they can
demonstrate controlling and abusive behaviour. The legislation should give examples of such
behaviour that would justify the right to apply. However, the examples which are singled out
should not be exclusive and other conduct which does not fall within the identified categories of
abuse should not be precluded from being raised. The following examples of controlling and
abusive behaviour are identified:
(a) Physical assault.
It should be broadly defined and should include threat of physical assault and
conduct which creates a reasonable apprehension of imminent physical harm.
There should be no qualification that the assault cause a specific degree of physical
harm.322

(b) Sexual assault.

Sexual contact of any kind that is coerced by force or threat of force. Threats to
make unwanted sexual contact by force should also be included.323

(c) Destruction of property.

Damage to any property that is done with the intention of intimidating or
threatening the applicant or which would reasonably be interpreted as a threat to
the applicant. 324

(d) Forcible or unauthorised entry into the residence of the applicant.

The forcible or unauthorised entry of the respondent into the residence of the
applicant without the applicant’s consent where the respondent and the applicant
do not occupy the same residence.325

321
ALRI Report for Discussion No 15 72 - 73.
322
ALRI Report for Discussion No 15 75.
323
ALRI Report for Discussion No 15 77.
324
ALRI Report for Discussion No 15 78.
325
ALRI Report for Discussion No 15 79.
 112

(e) Coercive action.

Compelling another against their will to perform an act which that person has the
right not to perform or compelling another against their will to refrain from doing
an act which that person has a right to perform.326

(f) Harassment.
Making repeated telephone calls to the applicant’s home or workplace; keeping
a person under surveillance by following them or looking in their windows;
repeatedly coming to the applicant’s house, workplace or school; following the
applicant in public places and so on.327

(g) Emotional abuse.

Subjecting an individual to degradation and humiliation including repeated insult,
ridicule or name calling, making repeated threats to cause the individual extreme
emotional pain, making repeated threats in relation to the individuals children,
family or friends, and consistently exhibiting obsessive possessiveness or jealousy
in relation to the individual which is such as to constitute a serious invasion of the
individual’s privacy.328

5.10.26 The Alberta Law Reform Institute's final report329 contains the following
recommendation:
Domestic abuse should be defined as conduct that threatens or interferes with the physical,
sexual or emotional integrity of the person subjected to it, or that makes that person
incapable of independent functioning. It includes, but is not limited to, the following:
• any intentional or reckless act or omission that causes injury, or causes damage to
property the purpose of which is to intimidate a claimant
• any act or threatened act that causes a reasonable fear of injury
• forced confinement
• sexual abuse (sexual contact of any kind that is coerced by force or threat of force,
or the threat of coerced sexual conact)

326
ALRI Report for Discussion No 15 81.
327
ALRI Report for Discussion No 15 83.
328
ALRI Report for Discussion No 15 87.
329
ALRI Report No 74 52 - 53.
 113

• emotional abuse (a pattern of behaviour that deliberately undermines the mental

or emotional well-being of the claimant, or; making repeated threats to cause
extreme emotional pain to the claimant or the claimant's children, family or friends)
• financial abuse (behaviour of any kind that controls, exploits or limits a claimant's
access to financial resources so as to ensure the financial dependency of the
claimant, or that exploits the claimant's financial resources).

New Zealand
5.10.27 “Violence” is defined330 as -
(a) physical abuse;
(b) sexual abuse;
(c) psychological abuse, including, but not limited to -
(i) intimidation;
(ii) harassment;
(iii) damage to property;
(iv) threats of physical abuse, sexual abuse, or psychological
abuse.

5.10.28 Without limiting the meaning of psychological abuse, a person psychologically

abuses a child if that person -
(a) causes or allows the child to see or hear the physical, sexual, or
psychological abuse of a person with whom the child has a
domestic relationship; or
(b) puts the child, or allows the child to be put, at real risk of seeing
or hearing that abuse occurring.331

5.10.29 Without limiting the meaning of violence -

(a) a single act may amount to abuse;

330
Domestic Violence Act 86 of 1995, section 3(2).
331
Domestic Violence Act 86 of 1995, section 3(3).
 114

(b) a number of acts that form part of a pattern of behaviour may

amount to abuse, even though some or all of those acts, when
viewed in isolation, may appear to be minor or trivial.332

USA
Model Code on Domestic and Family Violence
5.10.30 “Domestic or family violence” is defined as attempting to cause or causing physical
harm to another family or household member; placing a family or household member in fear of
physical harm; or causing a family or household member to engage involuntarily in sexual activity
by force, threat of force, or duress.333

Model anti-stalking code for the States334

5.10.31 The model anti-stalking code development project has sought to formulate a
constitutional and enforceable legal framework for addressing the problem of stalking. The model
code encourages legislators to make stalking a felony offence; to establish penalties for stalking
that reflect and are commensurate with the seriousness of the crime; and to provide criminal
justice officials with the authority and legal tools to arrest, prosecute, and sentence stalkers.

General

332
Domestic Violence Act 86 of 1995, section 3(4).
333
Model Code, section 102(1).
334
National Institute of Justice Project to Develop A Model Anti-stalking Code for States
Washington: US Department of Justice 1993 43 et seq.
 115

5.10.32 The legislation reviewed335 by Women, Law & Development International336 reveal
the following trends:
(a) All the legislation reviewed have provisions prohibiting physical violence.
(b) Psychological violence is prohibited in most of the laws reviewed. In some laws
it is explicitly defined, but in others it can be inferred from certain provisions.
(c) Verbal abuse, which can be interpreted as psychological violence, is also
prohibited in some of the legislation reviewed.
(d) Less than half of the laws reviewed contain explicit prohibitions for sexual
violence.
(e) Some of the laws reviewed categorize the willful destruction or seizure of property
as an act of violence.

D. Recommendation 10 in Discussion Paper 70

5.10.33 In Discussion Paper 70 on Domestic Violence it was recommended that the

legislation:337

(a) Define domestic violence as including, but not limited to -

(i) physical abuse or threat of physical abuse;
(ii) sexual abuse or threat of sexual abuse;
(iii) intimidation;
(iv) harassment; or
(v) destruction of property.

(b) Direct presiding officers to take account of the fact that -

(i) a single act may amount to domestic violence;

335
Twenty-one States: Argentina, Australia, Barbados, Bahamas, Belize, Cayman Islands,
Chile, Cyprus, United Kingdom, Ecuador, Guyana, Hong Kong, Israel, Malaysia, New Zealand,
Peru, Puerto Rico, Trinidad and Tobago, South Africa, St Vincent and the Grenadines, USA.
336
State Responses 77 - 79.
337
Discussion Paper 70 paragraph 3.10.41.
 116

(ii) a number of acts that form part of a pattern of behaviour may amount to
domestic violence, even though some or all of those acts, when viewed in
isolation, may appear to be minor or trivial.

E. Submissions on Recommendation 10 in Discussion Paper 70

Recommendation 10(a) in Discussion Paper 70

5.10.34 UWC Community Law Centre states that violence against women is defined in
Article 113 of the Beijing Platform of Action as "[a]ny act of gender-based violence that results
in, or is likely to result in, physical, sexual, or psychological harm or suffering to women, including
threats of such acts, coercion, or arbitrary deprivation of liberty, whether occurring in private or
public life". It is therefore argued that since the South African government has accepted the
Beijing Platform, the meaning of "violence" in section 12(1)(c) of the final Constitution and of
"domestic violence" in the legislation must reflect this definition. This respondent does not
approve of a list of specific kinds of abusive behaviour in the absence of general criteria to be
applied to determine whether conduct that is not enumerated in the list constitutes domestic
violence. It is recommended that the general criterion should be "controlling and abusive
behaviour that harms the health, safety and well-being of the applicant or any child in her care".

5.10.35 The Department of Justice Gender Unit points out that the definition is unclear
about the extent to which threats towards or direct abuse of a child in the care of an applicant
constitute domestic violence and this is an essential way in which the definition should be
extended.

5.10.36 The Department of Justice Gender Unit and Tshwaranang Legal Advocacy Centre
strongly recommend that the definition section be more closely linked with the section which sets
out the types of orders which can be made.

5.10.37 M Horton and Tshwaranang Legal Advocacy Centre recommend that where there
is evidence of domestic violence, the magistrate should not have the discretion to refuse to grant
an interdict, but this should be mandatory.
 117

"Intimidation and harassment"

5.10.38 The Cape Law Society, Concerned Friends of the Frail and Aged and the
Democratic Party submit that intimidation and harassment are only two forms of psychological
abuse and that the proposed definition is inadequate and needs to be expanded. Gauteng Members
of ALS Family Law Standing Committee, Tshwaranang Legal Advocacy Centre and the Women’s
Lobby recommend that these terms need to be defined and expanded and should not be left to the
discretion of the police officer or magistrate who may have no clear understanding of the dynamics
of domestic violence and what conduct may amount to harassment or intimidation. UWC
Community Law Centre goes even further, pointing out that these acts do not constitute
substantive offences in South African criminal law and that definitions of sexual assault,
intimidation and harassment/stalking ought to be employed to define these forms of violence in
the legislation. Tshwaranang recommends that harassment should include enforcing involuntary
mediation. The Department of Justice Gender Unit, Magistrate: Verulam, Mpumalanga
Provincial Government, Natal Law Society, SA National Council for Child and Family Welfare
and UWC Community Law Centre recommend the expansion of the definition to include verbal,
emotional and psychological abuse. The Democratic Party, the Department of Justice Gender
Unit, Tshwaranang Legal Advocacy Centre and UWC Community Law Centre urge that stalking
be indicated as a particular form of domestic violence.

"Financial abuse" absent from definition

5.10.39 Many respondents are of the view that the definition is lacking due to the absence
of financial or economic abuse as a form of domestic violence. Those who support the expansion
of the definition to include financial abuse include the Centre for Criminal Justice, Concerned
Friends of the Frail and Aged, Department of Justice Gender Unit, Tshwaranang Legal
Advocacy Centre and UWC Community Law Centre. Tshwaranang claims that any legislation
which genuinely attempts to find solutions to battered women’s predicament must necessarily
recognize economic abuse as a form of abuse.

"Destruction of property"
5.10.40 The Department of Justice Gender Unit suggests that the qualification "in which
the applicant may have an interest" is potentially limiting. When property is destroyed in the
 118

context of domestic violence the real intention is to intimidate, not to destroy something owned
by another. A man may break a chair or table which belong to him and in which the woman has
no technical legal interest, to frighten her. It is recommended that the criteria should be damaging
property "used by or in the possession of the applicant".

5.10.41 Recommendation 10(a) in Discussion Paper 70 is endorsed by:

Magistrate: Pietermaritzburg
NICRO, Western Cape

Recommendation 10(b) in Discussion Paper 70

5.10.42 The Magistrate: Paarl asserts that this recommendation seems to want to force
recalcitrant presiding officers to take account of certain facts. All that is necessary is a proper
definition clause.

5.10.43 Tshwaranang recommends that recommendation 10(b) be redrafted to read as

follows: "a presiding officer may not refuse to grant an interdict solely on the basis that a single
act or threat has been made by the respondent; or on the basis that the acts or threats when viewed
in isolation appear to be minor or trivial". Tshwaranang further urges that any finding by a
magistrate that any of the enumerated forms of abuse have occurred ought to justify eviction of
an abuser from the shared residence.

5.10.44 Recommendation 10(b) in Discussion Paper 70 is endorsed by:

The Cape Law Society
Magistrate: Pietermaritzburg

F. Evaluation
 119

5.10.45 The fact that the Act does not adequately define the grounds upon which an
interdict should be granted clearly makes it difficult for presiding officers to decide whether or not
an interdict is warranted. The result is legal uncertainty and a lack of consistency. The inclusion
of a comprehensive definition of family or domestic violence in legislation is therefore endorsed.

5.10.46 The Law Commission (England)338 recommends that a broad statutory criterion,
protecting the health, safety or well-being of the applicant or any child be adopted. It might be
argued that a detailed list describing the type of conduct that would constitute domestic violence
could purport to be a numerus clausus which would serve to limit, rather than broaden, the
definition. On the other hand, an approach in terms of which the types of abusive behaviour are
precisely, but not exhaustively defined, could promote legal certainty and uniformity.

5.10.47 A proper understanding of the nature of abusive relationships requires that

emotional or psychological abuse, not coupled with physical violence or threats of violence,
should also be included in behaviour warranting protection. A comprehensive definition of
domestic violence which includes physical, emotional, verbal, psychological and sexual abuse is
in line with the United Nations framework for model legislation339 which urges States to adopt the
broadest possible definition of acts of domestic violence with a view to compatibility with
international standards. The examples identified by the Alberta Law Reform Institute340 and the
legislation of New Zealand341 also reflect a wide range of controlling and abusive behaviour.

5.10.48 Research and submissions by respondents suggest that economic abuse must be
included as a form of domestic violence for which a protection order may be granted.

338
See par 5.10.9 - 10 above.
339
See par 5.10.8 above.
340
See par 5.10.25 above.
341
See par 5.10.27 et seq above.
 120

5.10.49 In certain jurisdictions “stalking” is recognised as an offence.342 Although stalking

is often associated with domestic violence, it is a problem which is much broader than the
domestic sphere. Stalking in the context of domestic violence could be included as a form of
conduct which may be prohibited by a protection order.

342
Australia (New South Wales, Northern Territory, Queensland, South Australia) and the
Model Anti-Stalking Code for the States.
 121

5.11 24 - hour service

A. Excerpt from Issue Paper343

Regulations under the Act should make clear provision for the procedure to be followed
after hours since a 24-hour service is not available to applicants.

B. Problem analysis

5.11.1 Novitz344 refers to the fact that most violent family incidents take place during the weekend
or in the evening when courts are not in session. In theory, an after hours system has been set up.
A police officer faced with an urgent application is supposed to call the on-duty prosecutor who
will then contact the magistrate on duty and arrange a hearing. However, in practice, it seems that
this system is seldom put into operation.345 Police tend to lack the necessary forms, or are not
aware of the procedures. Women have been advised to come back first thing in the morning.

C. Recommendation 11 in Discussion Paper 70

5.11.2 In Discussion Paper 70 it was recommended that:346

(a) Proposals regarding the procedure to be followed after hours be kept in abeyance
until clarity is obtained on the question of empowering the SAPS to apply for an
interdict on behalf of the applicant.

(b) The Department of Justice take steps to promote the efficiency of the after hours
system which has apparently been set up.

D. Submissions on Recommendation 11 in Discussion Paper 70

343
At 9.
344
Novitz 50.
345
See also Clark 1996 SAJHR 596.
346
Discussion Paper 70 paragraph 3.11.8.
 122

5.11.3 The Cape Law Society endorses this recommendation and suggests that the feasibility of
making the relief available on a 24-hour basis be further investigated. Gauteng Members of the
ALS Family Law Standing Committee recommend that retired judicial officers, active or retired
police officers and lawyers should be considered for secondment to assist in the issue and service
of interdicts. The Natal Law Society proposes that a duty roster be drawn up to ensure that this
service is made available to needy applicants. The SA National Council for Child and Family
Welfare reiterates the point of the need for trained and sensitive personnel, and recommends that
a special task team trained in dealing with domestic violence be set up. It also states that delays
in issuing interdicts may be one of the reasons for the withdrawal of applications.

5.11.4 The UWC Community Law Centre does not support the recommendation as it stands, and
claims that it assumes that the present system is the correct one to adopt. It is not necessarily the
case that the SAPS will be the first contact point an abused woman will have with the system. The
legislation should impose a duty on the clerk of the court and magistrates to ensure accessibility
and availability on a 24-hour basis, since it is they who constitute the court personnel involved in
interdict applications. A rotating roster should be drawn up and this information should be made
available to service providing organizations.

5.11.5 Recommendation 11 in Discussion Paper 70 is endorsed by:

Magistrate: Pretoria North
National Human Rights Trust
NICRO, Western Cape
Women’s Lobby

E. Evaluation

5.11.6 It is evident that many victims are abused over weekends and in the evenings, outside
court hours. Therefore the legislation should specifically provide that an application for a
protection order may be brought outside ordinary court hours. Such a provision, combined with
 123

the power of the SAPS to apply for a protection order on behalf of the applicant (paragraph
5.8.32 above), will contribute significantly to the protection of victims of domestic violence.
 124

5.12 Penalties under the Act; sentencing options; rehabilitation and counselling for
perpetrators of violence

A. Excerpt from Issue Paper347

The Act does not address the issue of rehabilitation and counselling for perpetrators of
violence.

B. Problem analysis

5.12.1 Section 6 of the Act provides that contravention of an interdict constitutes an offence,
punishable by a fine or imprisonment for a period not exceeding 12 months or both such fine and
such imprisonment. It should be noted that the Act, read with section 297 of the Criminal
Procedure Act 51 of 1977,348 does appear to allow for rehabilitation and counselling as a

347
At 9.
348
The relevant provisions read as follows:

“(1) Where a court convicts a person of any offence, other than an offence in respect of
which any law prescribes a minimum punishment, the court may in its discretion-
(a) postpone for a period not exceeding five years the passing of sentence and release
the person concerned-
(i) on one or more conditions, whether as to- . . .
(dd) submission to instruction or treatment; . . .
(ff) the compulsory attendance or residence at some specified centre
for a specified purpose;
(gg) good conduct;
(hh) any other matter,
and order such person to appear before the court at the expiration of the relevant period;
or . . .
(b) pass sentence but order the operation of the whole or any part thereof to be
suspended for a period not exceeding five years on any condition referred to in paragraph
(a) (i) which the court may specify in the order; . . .”
 125

sentencing option. Novitz349 reports that compulsory individual counselling has been used by
Cape Town magistrates as a sentencing option.

5.12.2 Novitz350 submits that magistrates can and should explore sentencing options351 other than
a straightforward term of imprisonment, but that a suspended sentence352 may not be the
preferable alternative. Periodical imprisonment353 and community service354 should also be
considered. Counselling may be most effective as part of a sentence which, for example, includes
community service, periodical imprisonment and a suspended sentence.355

5.12.3 The effectiveness of programmes for the rehabilitation of abusers and counselling is,
however, the subject of controversy. Fedler356 asserts that experience worldwide indicates overall
that these programmes cannot be relied upon to stop the violent behaviour of the abuser. The
following factors militate against counselling as remedial action in cases of family violence:357
(a) The abuser’s decision to go into counselling has an inordinate influence on a
woman’s decision to return to the relationship.
(b) Abusers often use counselling as a form of manipulation rather than change.
(c) Success rates depend on the abuser’s completing the programme and more than
half drop out before completion of the treatment.
(d) Programmes are more effective when conducted with volunteers.

349
Novitz 20.
350
Novitz 56.
351
In S v M 1996 2 SACR 127 (T) the court rejected a submission that correctional
supervision, the suspension of a sentence, placing an accused under the supervision of a probation
officer, etc, were not true punishments. The court held that all those sentencing options were
forms of punishment and they were so in every sense of the word.
352
Section 297(1)(b) of the Criminal Procedure Act 51 of 1977.
353
Section 285 of the Criminal Procedure Act 51 of 1977.
354
Section 297(1)(a)(i)(cc) of the Criminal Procedure Act 51 of 1977.
355
Novitz 57.
356
Fedler 1995 SALJ 238.
357
Novitz 20 et seq; Fedler 1995 SALJ 238 - 239.
 126

(e) Joint counselling will be inappropriate where the survivor feels threatened or
intimidated, and has difficulty in being in the presence of her spouse.
(f) There is a danger that joint counselling will merely perpetuate the power of one
party over the other. The factors which feed into this danger are the passivity of
the battered woman; the non-mutual nature of violence; the serious nature of
spousal violence, which makes it more accurately classified as a crime rather than
a dispute.

5.12.4 The factors mentioned above should inform a court’s recourse to the option of compulsory
individual or joint counselling, or family mediation.

5.12.5 Clark358 contends that the penalties under the Act should be modified to include
compulsory counselling.

5.12.6 Daniels & Muntingh359 report that their research shows that in all the cases where the
interdict was violated and the abuser brought to court, a suspended sentence was imposed. It is
recommend that more creative sentencing options be looked at by the courts in combatting
domestic violence, for example coupling sentences with court-mandated treatment programmes
aimed at rehabilitating abusers.

5.12.7 Questionnaires distributed by Barnes360 were completed by 60 victims of domestic

violence. The questionnaires reveal361 that 93% of the respondents who appeared in court and
faced the summary enquiry under the Act were convicted of the offence of violation of the
interdict. One was acquitted. The sentences were mild in the extreme: 31% were fined. The
standard appeared to be R300. Only one abuser was fined in excess of this - R1 000. 38% were
given suspended sentences, generally three months or six months suspended for two or three
years. 23% were fined and given suspended sentences. A single abuser was incarcerated. He was

358
Clark 1996 SAJHR 597.
359
Daniels & Muntingh 17.
360
Barnes 56.
361
Barnes 66.
 127

sentenced to 12 months, the maximum penalty under the Act (the man stabbed his wife with a
screwdriver so that she was in a coma for 10 days and confined to a wheelchair thereafter).

C. Comparative survey of laws

Canada
Alberta
5.12.8 The Alberta Law Reform Institute362 refers to the view that empowering the court to
mandate counselling for an individual who has engaged in abusive conduct is too extensive an
evasion of the autonomy of the individual respondent. The view opposing court requirement for
counselling focuses on the fact that counselling is a deeply personal process requiring the
participation of the individual and that therefore it cannot be effectively enforced by the justice
system. The question of how to enforce a system of court mandated counselling is raised as a
significant hurdle. The final recommendation363 is that there should not be a provision under
which it may be required that the respondent receive counselling.

New Zealand
5.12.9 On making a protection order, the court must direct the respondent to attend a specified
programme, unless the court considers that there is good reason for not making such a
direction.364 Such programme has the primary objective of stopping or preventing domestic

362
ALRI Report for Discussion No 15 150 - 151.
363
ALRI Report No 74 85.
364
Domestic Violence Act 86 of 1995, section 32(1).
 128

violence on the part of the respondent.365 Fees for programmes are paid out from money
appropriated by Parliament for the purpose.366

D. Recommendation 12 in Discussion Paper 70

5.12.10 In Discussion Paper 70 it was recommended367 that the legislation should not
provide for state sponsored mandatory rehabilitation and counselling programmes for perpetrators
of domestic violence.

E. Submissions on Recommendation 12 in Discussion Paper 70

5.12.11 The Department of Justice Gender Unit endorses the recommendation, stating
that:
Concepts of mandatory counselling are quite controversial worldwide. There seems to be
no question that courses and counselling for violent men should be part of the Correctional
Services fabric in any society. But the extent to which benefit is gained by forcing people
to attend mandatory counselling at the time of granting an interdict or dealing with a
breach is not clear. Resources need to be allocated to programmes for violent men as part
of the whole response to domestic violence but attendance at such programmes should
probably be voluntary. Perhaps as more is learnt about the effectiveness of such
programmes in the South African context, this question can be revisited.

The Women’s Lobby expresses the same sentiment.

5.12.12 The Gender Advocacy Project recommends that the legislation should make
provision for optional rehabilitation and counselling programmes for abusive men. In similar vein,
M Horton suggests that the range of sentencing options available to the court should be
enumerated so that the best option is selected in the individual case.

365
Domestic Violence Act 86 of 1995, section 2.
366
Domestic Violence Act 86 of 1995, section 44.
367
Discussion Paper 70 paragraph 3.12.16.
 129

5.12.13 The Cape Law Society believes that the discretion of the magistrate to impose
whatever penalty he or she thinks is appropriate, including ordering state-sponsored rehabilitation
or counselling, should be left unfettered.

5.12.14 By contrast, several respondents are strongly in favour of including state sponsored
mandatory rehabilitation and counselling programmes as well as community service for abusers.
Those in favour are the Centre for Criminal Justice, National Human Rights Trust and the
UNISA Health Psychology Unit. The SA National Council for Child and Family Welfare seems
on the whole to be in favour of counselling and rehabilitation but many of the counsellors differ
over whether this should be mandatory or optional, at the state’s expense or at the expense of the
perpetrator.

5.12.15 NICRO Western Cape suggests the introduction of mandatory minimum sentencing
of community service or correctional supervision with the alternatives of a minimum fine of R1000
or 3 months in prison should the abuser fail to serve any alternative sentence prescribed by the
magistrate or judge.

5.12.16 The UWC Community Law Centre holds the view that the only effective method
of immediately ending the violence is a sentence of imprisonment coupled with an order for
rehabilitative counselling. It argues that mandatory counselling should be a supplement, rather
than an alternative to imprisonment, and that these programmes should be funded by the state.

5.12.17 Recommendation 12 is supported by the Magistrate: Pietermaritzburg.

F. Evaluation

5.12.18 In paragraph 6.1.22 below it is suggested that a contravention of the conditions

of a protection order granted in terms of domestic violence legislation should be an offence which
 130

is prosecuted in the criminal court. The court would therefore have a discretion to apply sections
297,368 285369 and 297(1)(a)(i)(cc)370 of the Criminal Procedure Act 51 of 1977.

5.12.19 In light of the fact there is no reliable evidence that demonstrates the success of
rehabilitation and counselling efforts in respect of perpetrators of violence, state sponsored
mandatory rehabilitation and counselling programmes should be ruled out as an effective legal
response to domestic violence. Moreover, in the absence of a thorough assessment of available
rehabilitation and counselling services and the cost implications,371 mandatory referral would
certainly be refutable.

5.12.20 The present position which provides for a maximum penalty of twelve months
imprisonment for contravening the terms of a protection order is wholly inadequate, and fails to
give recognition to the gravity of situations in which abuse is committed despite the existence of
a protection order. Given the importance of ensuring that protection orders issued pursuant to the
legislation are adhered to by the respondents, coupled with the international obligations imposed
by the Convention on the Elimination of All Forms of Discrimination Against Women and the
Beijing Platform of Action to eradicate violence against women, it is submitted that the penalty
for contravening the terms of a protection order be increased from twelve months to five years.

368
See footnote 348 above.
369
Periodical imprisonment.
370
Community service.
371
In New Zealand, Parliament appropriates money for programmes.
 131

5.13 Exclusion of the respondent from the matrimonial home

A. Excerpt from Issue Paper372

The exclusion of the respondent from the matrimonial home - should this be allowed and
under what circumstances?

B. Problem analysis

5.13.1 Section 2(1)(b) of the Act provides that an interdict may be granted enjoining the
respondent not to enter the matrimonial home or other place where the applicant is resident, or
a specified part of such home or place or a specified area in which such home or place is situated.
“Matrimonial home” is defined as the house, flat, room or other structure in which the parties to
a marriage ordinarily live or lived together.

5.13.2 In terms of section 26(3) of the Constitution, 1996, no one may be evicted from their
home without an order of court made after considering all the relevant circumstances and no
legislation may permit arbitrary evictions.

5.13.3 In the Rutenberg case373 section 2(1)(b) of the Act was interpreted as follows:
. . . in terms of section 2(1)(b) the respondent may be finally enjoined, in perpetuity, “not
to enter the matrimonial home . . . or a specified area in which such home . . . is situated.”
This is tantamount to an ex parte ejectment of the respondent forever from what may be
his or her own property. Moreover, he or she may similarly be prohibited even from
entering the area in which his or her erstwhile home is situated.

5.13.4 Novitz374 states that one of the greatest problems identified by magistrates is that they are
unclear as to their authority to make an order evicting a respondent from property which he owns.
However, it seems vital that a magistrate, convinced of past violence and recent threats, can take
action to protect the survivor and her children. Where there is a serious risk to life, protection of
the applicant and children should take priority over property rights.375

372
At 9.
373
Rutenberg v Magistrate, Wynberg 1997 4 SA 735 (C) 753.
374
Novitz 42.
375
Novitz 43.
 132

5.13.5 Le Roux376 observes that magistrates are hesitant to use the power to evict a respondent
from the matrimonial home. Moreover, evicted respondents, who are often the registered owners
of the matrimonial home, may as an act of vengeance cease to make further mortgage payments.
She suggests that the court should be empowered to make an order compelling the evicted
respondent to continue mortgage payments.

C. Comparative survey of laws

United Nations framework for model legislation on domestic violence

5.13.6 The court order may provide that the defendant be instructed to vacate the family home,
without in any way ruling on the ownership of such property.377

England
5.13.7 The Law Commission (England)378 recommends that the court should have the power to
make an occupation order with a variety of possible terms. Regulatory orders (orders which
control the exercise of existing rights) available would, inter alia, be those -
(a) requiring one party to leave the home;
(b) suspending occupation rights and/or prohibiting one party from entering
or reentering the home or part of the home;
(c) requiring one party to allow the other to enter and/or remain in the home;
(d) regulating the occupation of the home by either or both of the parties;
(e) terminating occupation rights; and
(c) excluding one party from a defined area in the vicinity of the home.

5.13.8 It is noted379 that in cases of domestic violence an order ousting the respondent from the
home will often be the only way of giving the applicant effective protection.

376
Le Roux 1997 De Jure 311 - 312.
377
UN Framework paragraph 38(b).
378
Law Com. No. 207 paragraph 4.2.
379
Law Com. No. 207 paragraph 4.6.
 133

5.13.9 The Law Commission (England)380 recommends that the court should have power to grant
a regulatory occupation order in any case after considering all the circumstances of the case and
in particular the following factors:
(a) The respective housing needs and resources of the parties and of any relevant
child.
(b) The respective financial resources of the parties.
(c) The likely effect of any order, or of any decision by the court not to make an
order, on the health, safety and well-being of the parties and of any relevant child.

However, the court should have a duty to make an order if it appears likely that the applicant or
any relevant child will suffer significant harm if an order is not made and that such harm will be
greater than the harm which the respondent or any relevant child will suffer if the order is made.

5.13.10 It is further recommended381 that the court should have the power to impose on
either party obligations regarding the discharge of rent, mortgage instalments and other outgoings,
where it is just and reasonable to do so. In deciding whether an order is just and reasonable, the
court should take into account the parties’ financial resources and any financial obligations which
they have or are likely to have in the foreseeable future, including any financial obligations to each
other or to any relevant child.

Australia
5.13.11 In all jurisdictions it is possible to make an order to exclude the respondent from
the home.382

The Australian Capital Territory / Northern Territory / Western Australia

5.13.12 It is possible to exclude the respondent from the home, notwithstanding any legal
or equitable interest which the respondent might have in the property.383

380
Law Com. No. 207 paragraph 4.33.
381
Law Com. No. 207 paragraph 4.42.
382
Laws of Australia Chapter 5.
383
Laws of Australia paragraph [62], [70], [90].
 134

New South Wales / Northern Territory / Queensland

5.13.13 The court must weigh up the accommodation needs of the parties, the effect which
such an order will have on any children and the consequences for the victim and any children if
such an order is made.384 In Queensland any existing orders relating to guardianship, custody or
access may also be taken into account.385

Canada
Alberta
5.13.14 According to the Alberta Law Reform Institute,386 a factor which would suggest
a need for allowing exclusion of abusive individuals from the residence is the demand on public
funds created by victims of domestic abuse having to flee from their residences to shelters. Where
shelters are forced to turn away a large number of the victims due to lack of funds and lack of
space, it would seem that anything that could provide an alternative to the victims having to flee
to shelters would be desirable. Also, where the perpetrator’s abuse has made continuing
cohabitation unsafe, it is certainly arguable that it should be the perpetrator, not the victim, who
should bear the burden of the upsetting of the status quo brought about by the abuse.

5.13.15 The Law Reform Institute387 states that there are concerns as to the suitability of
the remedy of exclusion from residence. The view which opposes the inclusion of such a remedy
within a domestic abuse statute focuses on the invasive nature of the remedy and the extreme
consequences that it will have for a respondent both in terms of the violation of property rights
and the violation of the individual’s right to peaceful and secure enjoyment of their home. Such
a remedy could also give rise to opportunities for vexatious litigation by vindictive applicants. The
concern to protect victims of abuse could be harnessed by mischievous litigants to obtain the
advantage in property disputes. By allowing such a remedy, one could be allowing public outrage
at domestic abuse to be used to create a legal carte blanche to be given to anyone alleging abuse.
A further concern with the remedy it that it could obscure the need for funding to battered

384
Laws of Australia paragraph [66], [70].
385
Laws of Australia paragraph [72].
386
ALRI Report for Discussion No 15 140.
387
ALRI Report for Discussion No 15 141 - 142.
 135

women’s shelters. The existence of the remedy could create a false perception that safe houses
for victims of domestic abuse were no longer necessary.

5.13.16 As regards orders permitting the respondent to remain in the same residence as the
applicant but limiting the respondent’s use of the residence, the Alberta Law Reform Institute388
notes that there are obvious difficulties surrounding the compliance and enforcement of such an
order. In a family situation there would generally be no external observer to monitor the
respondent’s compliance with the order. Unless the breach of the order were also to constitute
an offence such as assault, there would be a great deal of difficulty in determining after the fact
whether a breach of the terms of the order had taken place. It is therefore recommended that a
power to grant orders restricting the use of a residence should not be created.389

5.13.17 The Alberta Law Reform Institute's390 final recommendation is that there should
be a provision that the respondent may be removed from the residence. However, because it
would be difficult to enforce orders that grant the use of only part of the residence, the
recommendation is against such a provision.

Nova Scotia
5.13.18 Proposed Nova Scotia legislation391 provides that the court may make an order
“granting the victim exclusive occupation of the residence regardless of whether the residence is
jointly or solely owned by the parties or jointly or solely leased by the parties”. The proposed
legislation392 also provides for an order which permits the victim and respondent to occupy the
same premises but limits the respondent’s use thereof, provided that the court is satisfied -
(a) that the victim voluntarily requests such an order;

388
ALRI Report for Discussion No 15 111.
389
ALRI Report for Discussion No 15 112.
390
ALRI Report No 74 71 - 72.
391
ALRI Report for Discussion No 15 196, clause 4(1)(b).
392
Section 4(1)(p) quoted in ALRI Report for Discussion No 15 198.
 136

(b) the victim is informed by the court that the order may not provide the same
protection as an order excluding the respondent from the premises and may be
difficult to enforce; and
(c) satisfactory conditions are imposed on the respondent to ensure against the
repetition of domestic violence and which are agreed upon by the parties.

Saskatchewan
5.13.19 An emergency intervention order and a victim's assistance order may contain a
provision granting the victim and other family members exclusive occupation of the residence,
regardless of ownership.393

New Zealand
5.13.20 The court may make an occupation order granting the applicant the right to
personally occupy a specified dwelling house, or an order vesting in the applicant the tenancy of
a specified dwelling house, if it is satisfied that the order is necessary for the protection of the
applicant or is in the best interests of a child of the applicant’s family. 394

5.13.21 A temporary occupation order or a tenancy order may be made on application

without notice if the court is satisfied that the respondent has physically or sexually abused the
applicant or a child of the applicant’s family, and the delay that would be caused by proceedings
on notice would or might expose the applicant or a child of the applicant’s family to physical or
sexual abuse.395

USA
Model Code on Domestic and Family Violence

393
Saskatchewan Victims of Domestic Violence Act S.S. 1994,c. V-6.02, sections 3(3)
and 7(1).
394
Domestic Violence Act 86 of 1995, section 53 and 57.
395
Domestic Violence Act 86 of 1995, section 60.
 137

5.13.22 A court may remove and exclude the respondent from the residence of the
petitioner, regardless of ownership of the residence.396 A respondent may be ordered to pay rent
or make payment on a mortgage on the petitioner’s residence.397

General
5.13.23 The Alberta Law Reform Institute398 notes that all the American Codes, except that
of Delaware, make provision for an order excluding the perpetrator of domestic abuse from the
residence. Some States simply provide that the court may order a respondent to vacate the home.
Others note that the order may issue whether the residence is jointly or solely owned or leased by
the parties.

D. Recommendation 13 in Discussion Paper 70

5.13.24 In Discussion Paper 70 it was recommended that the legislation:399

(a) Empower the court to exclude the respondent from the shared residence.
[“Shared residence” is to be defined as the residence in which the applicant
and respondent (whether the same or opposite gender) live or lived
together in a marriage relationship or in a relationship in the nature of
marriage, although they are not, or were not, married to each other, or are
not able to be married to each other, regardless of whether the parties are
solely or jointly entitled to occupy the residence.]

(b) Provide that orders of this nature may only be made if it appears likely that
the applicant or any relevant child will suffer significant harm if an order
is not made and that such harm will be greater than the harm which the
respondent will suffer if the order is made.

396
Model Code, section 305, 306(2)(c).
397
Model Code, section 306(3)(d).
398
ALRI Report for Discussion No 15 140 - 141.
399
Discussion Paper 70 paragraph 3.13.41.
 138

(c) Empower the court to impose on either party obligations regarding the
discharge of rent or mortgage instalments.

(d) Provide that the discretionary power in (c) may only be exercised after
taking into account the parties’ financial resources and any financial
obligations which they have or are likely to have in the foreseeable future,
including any financial obligations to each other or to any child.

E. Submissions on Recommendation 13 in Discussion Paper 70

Exclusion of respondent from the shared residence

5.13.25 All the respondents, except for the Magistrate: Pretoria, support this
recommendation in so far as it empowers the court to make an order evicting a respondent from
the shared residence. Many respondents have concerns over the procedure that will be adopted,
especially in relation to the "significant harm" test. The Natal Law Society asks "how abused does
a person have to be?"

5.13.26 The Department of Justice Gender Unit is in favour of exclusion orders, but
comments that these orders should generally not be made on an ex parte basis except in the very
short term to deal with emergency situations. Consideration needs to be given to provisions which
allow a lease to be transferred to the name of the woman with the written consent of the lessee
where the premises are rented. The Gender Unit states emphatically that if the woman and
children do not have alternative accommodation and there is a risk to their well-being if the abuser
remains in the home, he must be evicted. Tshwaranang Legal Advocacy Centre insists that until
such time as the applicant has alternative accommodation by way of state shelters, she should
never be the evicted party from the matrimonial home.

5.13.27 UWC Community Law Centre argues that even if an unconditional power to evict
a respondent infringes the right not to be evicted without an order of court made after considering
all the relevant circumstances, it is a justifiable limitation in terms of section 36(1) of the
Constitution.
 139

"Significant harm test"

5.13.28 The Department of Justice Gender Unit, UWC Community Law Centre and
Tshwaranang Legal Advocacy Centre express concern over the "significant harm" test, asking
how a court will balance the physical and emotional harm that might be caused to a woman and
her children who are forced to live in a home with a violent man against the harm that could be
caused to the man by requiring him to find new accommodation. UWC Community Law Centre
is particularly concerned about the wide discretion given to magistrates to determine when harm
is "significant", and claims that this discretion will seriously undermine the protection of the
applicant. This test will impose an additional evidentiary hurdle to her before she can be granted
legal protection. Similar sentiments are expressed by M Horton who states that the proposed Bill
does not contain a definition of harm. He suggests that harm should be defined in some way to
maintain the emphasis on welfare and safety.

5.13.29 The UWC Community Law Centre addresses the question of the constitutionality
of an order excluding the respondent from the matrimonial home. It argues that the scarcity of
council housing in townships and shelters for abused women coupled with the economic
disempowerment of many South African women make it difficult for women to find
accommodation. The stringent requirement of "significant harm" violates the applicant’s right to
freedom from violence by exposing her to the probability of further violence. It is acknowledged
that all the relevant circumstances need to be considered, but the only circumstance relevant to
the decision to evict is whether or not the applicant will be safe.

5.13.30 The Natal Law Society states that the issue of financial hardship should play a
secondary role to the issue of the actual violence.

5.13.31 The Magistrate: Pietermaritzburg asserts that the fact that practical problems
might exist in the implementation of this recommendation, should not detract from the necessity
of such provision.

Obligations in terms of discharge of rent or mortgage

 140

5.13.32 The Magistrate: Pietermaritzburg comments that this order should only be
sparingly used as it can have far-reaching and devastating effects, and that it should be linked to
a time period, otherwise it could be open to serious abuse. He suggests that if no final order of
divorce or other High Court order is made within a specified time, the order should lapse and the
respondent should be able to return to the shared residence.

5.13.33 M Horton and Tshwaranang consider that the obligations should not be limited to
rent and mortgage, but to other household expenses, such as electricity and water bills. M Horton
raises the concern that if the respondent does not abide by the terms of the order, non-payment
will be a criminal offence for which one of the possible sentences is imprisonment. He questions
whether this is constitutional.

5.13.34 UWC Community Law Centre claim that in view of the realities of unemployment
and economic disempowerment of women, this recommendation should not apply to "either
party", but that the respondent should be required to pay all mortgage or rent payments unless the
applicant is in a financial position to pay her share.

Court to take into account parties’ financial resources in determining obligations to discharge
rent or mortgage
5.13.35 Concern is expressed by various respondents as to how the magistrate will
determine the financial situation of parties and what procedure is envisaged. The Magistrate:
Paarl asks how the court will enforce this recommendation if the respondent does not show up.
The SA National Council for Child and Family Welfare is concerned about how the respondent
will be prevented from concealing his or her financial resources in an attempt to avoid payment,
especially where the respondent is self-employed. The Department of Justice Gender Unit and
M Horton make the point that some mechanism must be put in place to enforce the rendering of
these payments given the problems with collecting maintenance under our present legal system -
there is no point in repeating a similarly ineffective system under this legislation. UWC Community
Law Centre states that this requirement will in effect mean that such an order will rarely, if ever,
be made at an initial ex parte application, and recommends that the court be given a discretion to
grant emergency relief where this is warranted by the circumstances. The Magistrate: Pretoria
 141

is of the opinion that this aspect of the order takes the court outside its area of jurisdiction of
family violence and forces the court to enter into civil disputes.

5.13.36 Recommendation 13 in Discussion Paper 70 is endorsed by the Women’s Lobby.

F. Evaluation

5.13.37 The approach allowing for exclusion of respondents from the matrimonial home
appears to command substantial support. All the foreign jurisdictions surveyed have legislation
to this effect. Although it is conceded that the inclusion of such a remedy in the legislation might
have extreme consequences for a respondent, it seems clear that in cases of domestic violence an
exclusion order will often be the only way of giving the applicant effective protection. Where
there is a serious risk of physical violence, protection of the applicant and children should take
priority over property rights.

5.13.38 Eviction from a home in consequence of a court order made after considering all
the relevant circumstances is conceivable in terms of the Constitution, 1996, but no legislation
may permit arbitrary evictions.400

5.13.39 In the Rutenberg case401 reference was made to “an ex parte ejectment of the
respondent forever”. This criticism is redressed by the argument in paragraph 5.1.53 et seq above.

5.13.40 Because of the seriousness of the remedy, it is considered imperative that the
legislation should provide for an appropriate criterion to be applied by the courts, such as that the
court may impose the prohibition only if it appears to be in the best interests of the applicant or
any child.

5.13.41 The issue of the continuance of rent or mortgage payments by the respondent after
an order preventing the respondent from entering the residence has taken effect, needs to be

400
Section 26(3).
401
See paragraph 5.13.3 above
 142

clarified. In times of crisis, financial matters are often a cause of great concern to applicants. In
such circumstances, it seems fair that where the respondent has created a violent home
environment, he should continue to pay rent or payments on mortgage bonds on the property.
In appropriate cases the court should therefore have the power to impose on the respondent
obligations regarding the discharge of rent or mortgage instalments. It is further suggested that
it would promote consistency if it is provided that these discretionary powers should only be
exercised after having regard to the financial needs of the parties.
 143

5.14 Application by applicant for amendment or setting aside of the interdict

A. Excerpt from Issue Paper402

The Act does not allow for the applicant to apply for the amendment or setting aside of
the interdict.

B. Problem analysis

5.14.1 In terms of section 2(2)(c) of the Act the respondent may, after 24 hours’ notice to the
applicant and the court concerned, apply for the amendment or setting aside of the interdict.

5.14.2 Daniels & Muntingh403 point out that the Act and Regulations do not make provision for
an eventuality where, for example, an applicant would like the protection of the interdict extended
to children who are being abused or threatened, or where an applicant decides subsequently that
an eviction order is necessary to remove an abusive partner from the premises or make sure that
a former partner does not enter the premises. Although the Act does make provision for the
children of an applicant to be protected by the interdict, applicants may not realise this at the time
the interdict was granted and may subsequently want the protection of the interdict extended to
any children living with them. Changes to the interdict need also to be made where, for example,
an applicant has an eviction order included in the interdict but then moves - the new place of
residence is not protected by the interdict. To apply for a totally new interdict, and then have this
served, would seem to be a cumbersome and costly exercise.

5.14.3 It is suggested404 that clarity should be provided as to the manner in which an applicant
could make changes or add new orders once an interdict has already been granted and served. A
procedure should be outlined whereby a respondent could be notified of any changes made to the
original interdict or any new conditions imposed, without an applicant having to make application

402
At 9.
403
Daniels & Muntingh 14 - 15.
404
Daniels & Muntingh 16.
 144

for the interdict de novo , which is time-consuming and would involve paying the sheriff’s fee
again.

C. Comparative survey of laws

Australia
5.14.4 In all jurisdictions either party may apply to have an order varied or revoked.405 In
Queensland, someone authorised by either party or a police officer may also apply to have an
order revoked or modified.406 In Victoria, in addition, “any other person” may with leave of the
court apply for a variation, revocation or extension, for example, where the original applicant was
a person providing assistance to the victim.407

New Zealand
5.14.5 The court may, if it thinks fit, on the application of the applicant or the respondent, vary
or discharge a protection order.408 An application for variation or discharge or the defending of
such application made by the respondent may be made on behalf of a protected person.409

D. Recommendation 14 in Discussion Paper 70

5.14.6 In Discussion Paper 70 it was recommended that the legislation:410

(a) Allow for the applicant to apply for the amendment of the interdict, but not for the
setting aside of the interdict.

(b) Empower any other person who has a material interest in the matter to apply for
the amendment of the interdict on behalf of the applicant.

405
Laws of Australia Chapter 5.
406
Laws of Australia paragraph [74].
407
Laws of Australia paragraph [82].
408
Domestic Violence Act 86 of 1995, sections 46 - 47.
409
Domestic Violence Act 86 of 1995, section 48.
410
Discussion Paper 70 paragraph 3.14.12.
 145

E. Submissions on Recommendation 14 in Discussion Paper 70

5.14.7 The UWC Community Law Centre maintains that whilst the possibility of manipulation by
the respondent is a real concern, the court can address this issue by hearing oral evidence to
ensure that the application to have the interdict set aside is made freely and voluntarily. In this
way, a woman retains the autonomy to make decisions while the context of domestic violence and
the potential for coercion by an abuser is recognized. The Department of Justice Gender Unit,
NICRO - Western Cape and the Magistrate: Pietermaritzburg echo this sentiment.

5.14.8 Various counsellors at the SA National Council for Child and Family Welfare are divided
over the question of whether the applicant should have the right to set the interdict aside. Some
are of the opinion that victims of family violence are not capable of making decisions in their best
interests and therefore they should not be allowed to be manipulated into setting the interdict
aside, whilst others ask ‘if we make choices on her behalf, how empowered is she?’

5.14.9 Some of the respondents, including M Horton and the Natal Law Society are concerned
about the rights of a person with a material interest having the right to amend the interdict, and
suggest that this should only be done with the consent of the applicant, and if it is in her best
interests. The Magistrate: Pretoria North does not support this recommendation.

5.14.10 Recommendation 14 in Discussion Paper 70 is endorsed by:

Magistrate: Mitchell’s Plain
Women’s Lobby
UNISA Health Psychology Unit

F. Evaluation

5.14.11 In paragraph 5.7.25 above reference is made to the fact that the return date may
be anticipated by the respondent.
 146

5.14.12 It is recognised that allowing the applicant to apply for the amendment or setting
aside of the protection order might open the door for manipulation by the respondent. On the
other hand, the present situation might be prejudicial to the applicant. The opinion is held that
despite concerns that an applicant may be manipulated at a vulnerable period, she should be
allowed the autonomy at any stage of the proceedings to either amend or set the protection order
aside. In order to address the concern that undue pressure may be put on the applicant to set the
protection order aside, a provision should be included to ensure that the court must be convinced
that the application is made freely and voluntarily.
 147

6. CONCERNS NOT DEALT WITH IN ISSUE PAPER 2 ON FAMILY VIOLENCE

6.1 The State as party to criminal prosecutions

A. Problem analysis

6.1.1 It would seem that the question of whether the Act provides a civil, criminal or “hybrid”
remedy causes uncertainty in practice.

6.1.2 Section 3(4) and (5) of the Act provides as follows:

(4) The judge or magistrate before whom a respondent is brought in terms of
subsection (2) shall enquire into the respondent's alleged breach of the conditions
of the order made in terms of section 2 (2) and may at the conclusion of such
enquiry -
(a) order the release of the respondent from custody; or
(b) convict the respondent of the offence contemplated in section 6.

(5) The provisions of the Criminal Procedure Act, 1977 (Act 51 of 1977), relating
to the procedure which shall be followed in respect of an enquiry referred to in
 148

section 170411 of that Act, shall apply mutatis mutandis in respect of an enquiry
under subsection (4).

6.1.3 In S v Chaplin412 the applicant appealed against a conviction and sentence imposed in
terms of the Act. Scott J analysed the application of section 170 of the Criminal Procedure Act
to an enquiry under section 3(4) of the Act as follows:413
What this section contemplates is that the mere failure to appear will justify a conviction
in the absence of an explanation. In other words, what is presumed is that the failure to
appear was wilful in the sense that it was due to the fault of the accused person. It follows
that an accused person must be informed of the onus upon him, otherwise he might be
justified in tendering no explanation, in the belief that his mere failure to appear did not
in itself indicate that he was at fault and that the State had failed to establish fault on his
part. The reference in s 3(5) of the Act to s 170 of the Criminal Procedure Act indicates,
I think, that in the absence of an explanation by the respondent, a conviction under s 6 of
the Act will be justified at a s 3(4) enquiry, once it is shown that the respondent engaged
in conduct which prima facie was in conflict with the provisions of an interdict, previously
granted and served. In other words, in order to procure a conviction it will not be
necessary to establish a wilful breach of the terms of the interdict, even in circumstances
where it is conceivable that there may be an innocent explanation for the conduct.

411
“Failure of accused to appear after adjournment or to remain in attendance
(1) An accused at criminal proceedings who is not in custody and who has not
been released on bail, and who fails to appear at the place and on the date and at
the time to which such proceedings may be adjourned or who fails to remain in
attendance at such proceedings as so adjourned, shall be guilty of an offence and
liable to the punishment prescribed under subsection (2).
(2) The court may, if satisfied that an accused referred to in subsection (1) has
failed to appear at the place and on the date and at the time to which the
proceedings in question were adjourned or has failed to remain in attendance at
such proceedings as so adjourned, issue a warrant for his arrest and, when he is
brought before the court, in a summary manner enquire into his failure so to
appear or so to remain in attendance and, unless the accused satisfies the court
that his failure was not due to fault on his part, convict him of the offence referred
to in subsection (1) and sentence him to a fine not exceeding R300 or to
imprisonment for a period not exceeding three months.”
412
1996 1 SA 191 (C).
413
At 195.
 149

Wilfulness will be presumed in the absence of an explanation by the respondent. In such

circumstances, that is to say where wilfulness is to be presumed, justice and common sense
require that the presiding officer should inform the respondent that in an absence of an
explanation he will be presumed to have acted wilfully. The reason for this is that, unless
warned, an undefended respondent may conceivably think that a case of wilful breach of
the interdict has not been made out against him.

6.1.4 Van Rensburg414 exemplifies that an enquiry under section 3(4) of the Act takes place in
a summary manner and the State is not directly involved in proceedings under this provision. The
magistrate must explain to the respondent that it prima facie appears that the interdict was served
on him, that he breached a condition regarding compliance with the interdict and that there is a
burden on him to rebut such prima facie facts. The respondent’s rights regarding legal
representation must be explained to him and he must be informed that he may call witnesses or
testify personally.415 Although the prosecutor is not directly involved in the enquiry, Van Rensburg
416
contends that it is standard procedure that the prosecutor is given an opportunity to give
evidence and to cross-examine the respondent if the latter gives evidence under oath.

6.1.5 Daniels & Muntingh417 state that according to a survey, where the respondent had legal
representation at the stage of the criminal enquiry, the matter was postponed. As no state
prosecutor is involved, an imbalance will be created where the “defence” (respondent) is
represented in court but the “prosecution” is not. They recommend418 that the enquiry should be
conducted in the form of an ordinary criminal trial and not in the form of an enquiry referred to
in section 170 of the Criminal Procedure Act 51 of 1977. In this way the victim’s interests would
be better served as a state prosecutor interested in obtaining a conviction would be present in
court in addition to the presiding officer.

6.1.6 Magistrate A F Botha419 sees the main problem as the adulteration and total separation of
the criminal act or acts that give rise to the application for an interdict and the procedure in

414
Van Rensburg 1994 The Magistrate 104.
415
Van Rensburg 1994 The Magistrate 105.
416
Van Rensburg 1994 The Magistrate 105.
417
Daniels & Muntingh 15.
418
Daniels & Muntingh 17.
419
Submission to the Commission.
 150

dealing with a breach of the interdict. It is contended that initial prosecution and trial would
resolve and preempt the application procedure in terms of the Act and also create a culture and
awareness of the issues concerned. The opinion is held that the creation of a specific enquiry
(section 3(4) of the Act) has contributed in creating a safe haven for many offenders shielding
them from real prosecution and the full extent of criminal procedure. It has also isolated a division
and contributed to a specific attitude and perception amongst offenders, victims and even
magistrates. Taking the offenders back to the criminal court would be the first of many corrective
measures to instill more universal condemnation and uniform procedure. Whether this court is
specially assigned or erected, the main consideration should be the role of the prosecution, as
regulated by statute.

B. Comparative survey of laws

Australia
6.1.7 In all jurisdictions, if the order is breached, the respondent is guilty of an offence.420 In the
Australian Capital Territory, for example, the Domestic Violence Act 1986, does not contain any
provision relating to enquiry proceedings after contravention of a protection order. It is merely
provided that where the respondent contravenes the order in any respect, he or she is guilty of an
offence, punishable, on conviction, by a fine or imprisonment, or both.421

New Zealand
6.1.8 The Domestic Violence Act 86 of 1995 contains no reference to enquiry proceedings.
Contravention of a protection order is an offence and any person who commits such an offence
is liable on conviction to imprisonment or to a fine.422 Where a person is arrested for breaching
a protection order, he or she is charged with an offence against contravention of a protection
order.423

420
Laws of Australia Chapter 5.
421
Australian Capital Territory Domestic Violence Act 1986, section 27.
422
Domestic Violence Act 86 of 1995, section 49.
423
Domestic Violence Act 86 of 1995, section 51.
 151

Canada
Alberta/Saskatchewan
6.1.9 The most effective way of enforcing domestic abuse orders is to treat violation of an order
as a breach of the Criminal Code. Such a violation is an indictable offence. Breaches of orders
under domestic violence legislation should therefore be prosecuted under the Criminal Code.424

C. Recommendation 15 in Discussion Paper 70

6.1.10 In Discussion Paper 70 it was recommended425 that the contravention of the conditions of
an interdict granted in terms of domestic violence legislation be an offence which is prosecuted
in the criminal court.

D. Submissions on Recommendation 15 in Discussion Paper 70

6.1.11 This recommendation is widely endorsed. The SA National Council for Child and Family
Welfare states that prosecution in a criminal court will act as a deterrent to those who contravene
the conditions. The Natal Law Society and the Cape Law Society warn against a situation similar
to that of criminal prosecutions in terms of the Maintenance Act which is reluctantly enforced by
criminal courts and seldom successful. M Horton suggests that enforcement should be in the same
court that made the original order.

6.1.12 The UWC Community Law Centre does not accept this recommendation for a number of
reasons. Firstly, the abused woman is recast as a complainant witness rather than an applicant for
relief. She is denied the right to legal representation and because the Attorney-General, and not
she directs the prosecution, she is denied control over the proceedings. Her interests as a victim
are not recognized when she appears as a witness and as a complainant, she is subject to gender

424
ALRI Report No 74 90.
425
Discussion Paper 70 paragraph 4.1.30.
 152

bias and secondary victimization by the criminal justice system. Secondly, due to delays in the
criminal justice system, her need to be protected from immediate and ongoing violence is not
adequately accommodated. However, the Centre recognizes the importance of emphasizing the
criminality of domestic violence. It proposes that the proceedings take place in the criminal court,
subject to two qualifications: firstly, the respondent must be charged with both contempt of court
and a domestic violence offence; and secondly, the abused woman must be regarded as an
ancillary prosecutor and equipped with the right to legal representation. Alternatively, it is
suggested that dual proceedings - a civil action for contempt of court and a criminal action for
domestic violence, be considered. It also recommends that the interdict court and criminal court
are given concurrent jurisdiction over conduct that constitutes a contravention of an interdict.

6.1.13 The Centre further argues that in view of the fact that the sui generis nature of contempt
of court proceedings is firmly entrenched in South African case law, the legislature erred by
providing that the proceedings for interdict contraventions take the form of an inquiry that is
governed by the provisions of section 170 of Act 51 of 1977. This section, it is argued, regulates
a separate and different form of contempt of court, namely failure of an accused to appear at
court, and is not relevant to contempt of court that takes the form of the violation of a court
order. By contrast, it is correct in law that the latter form of contempt be adjudicated by way of
a judicial hearing governed by a sui generis procedure that contains both civil and criminal
elements and in which the applicant is a party to the suit. It is suggested therefore that the
proceedings should embody a combination of ordinary civil application procedure and the
procedure in a summary criminal trial. The presiding officer should hear oral evidence from both
parties and give judgement in a summary manner.

6.1.14 The Department of Justice Gender Unit asserts that breach of an interdict should be a
criminal offence which is prosecuted by the state as a crime. To alleviate likely problems, it is
recommended that where a victim chooses to, she can elect to prosecute the action herself and
alternative procedures should be provided in the new legislation. Prosecutions could be heard in
the same courts as interdict cases to avoid some of the concerns about the lack of sensitivity of
judicial officers in ordinary criminal courts. The proposed family courts could provide an
appropriate forum for these hearings.
 153

6.1.15 The Democratic Party recommends that prior breaches of interdicts be made available to
a court sentencing an abuser, and that a national registry of all known spousal and family abusers
be compiled.

6.1.16 The Magistrate: Paarl appears not to favour this recommendation, stating that criminal
prosecutions will make the process more cumbersome and at the same time contravene one of the
stated objects of the Act, namely to decriminalize the whole process.

6.1.17 Recommendation 15 in Discussion Paper 70 is endorsed by:

Magistrate: Pietermaritzburg
Magistrate: Pretoria North
NICRO, Western Cape
Women’s Lobby

E. Evaluation

6.1.18 Because a domestic violence protection order is founded in civil law, this does not
preclude an interpretation that the Act contains provisions which are, as a rule, identified with
criminal proceedings. Specific provision is made that a person who contravenes the protection
order or other order granted by a judge or magistrate shall be guilty of an offence and liable to
conviction to a fine or imprisonment (Section 6 of the Act). An argument that a section 3(4)
enquiry should be interpreted as being in the nature of a criminal trial is therefore not devoid of
merit. Consultation suggests that the view that the State is not or should not be involved in an
enquiry under section 3(4) of the Act presents a number of pressing problems:
(a) It is expected of a presiding officer to play an inquisitorial role and to execute the
functions of a presiding officer and prosecutor.
(b) Contravention of a protection order is a serious offence with a maximum penalty
of a fine or 12 months imprisonment or both such fine and imprisonment. It
appears to be inappropriate to conduct an enquiry of such serious nature in the
 154

dual capacity of presiding officer and prosecutor. This can detract from the
impartiality of the bench.
(c) For practical considerations it may often be necessary to make use of the services
of the prosecutor. This fact is conceded by the Attorneys-General: Cape Town
and the Free State.426
(d) An imbalance is created where the respondent is represented in court and there is
no prosecutor who has the objective of obtaining a conviction.

6.1.19 The applicability of section 170 of the Criminal Procedure Act 51 of 1977 to a section 3(4)
enquiry427 presents further problems. As interpreted in S v Chaplin,428 in the absence of an
explanation by the respondent, a conviction under section 6 of the Act will be justified at a section
3(4) enquiry, once it is shown that the respondent engaged in conduct which prima facie was in
conflict with the provisions of an interdict. Wilfulness will be presumed in the absence of an
explanation by the respondent. The respondent is therefore burdened with an onus to prove on
a balance of probabilities that he did not violate the terms of the interdict. Should he not satisfy
the burden of proof, he might be convicted and sentenced to a fine or imprisonment or both.

6.1.20 In terms of the Constitution, 1996, everyone who is arrested for allegedly committing an
offence has the right to remain silent429 and every accused person has the right to a fair trial, which
includes the right to be presumed innocent, to remain silent, and not to testify during the
proceedings.430 In S v Zuma431 proviso (b)(ii) to section 217(1) of the Criminal Procedure Act
51 of 1977 was scrutinised by the Constitutional Court. Kentridge AJ held that the words “unless
the contrary is proved” placed an onus on the accused which had to be discharged on a balance
of probabilities. He did not discharge the onus by merely raising a doubt. If, at the end of the

426
Submissions to the Commission.
427
As provided by section 3(5) of the Act.
428
1996 1 SA 191 (C).
429
Section 35(1)(a).
430
Section 35(3)(h).
431
1995 2 SA 642 (CC).
 155

trial-within-a trial the probabilities were evenly balanced the presumption prevailed. Kentridge
AJ reached the following conclusion:432

. . . the common-law rule in regard to the burden of proving that a confession was
voluntary has been not a fortuitous but an integral and essential part of the right to remain
silent after arrest, the right not to be compelled to make a confession, and the right not
to be a compellable witness against oneself . . . Reverse the burden of proof and all these
rights are seriously compromised and undermined . . . I therefore consider that the
common-law rule on the burden of proof is inherent in the rights specifically mentioned
in s 25(2) and 3(c) and (d), (of the Constitution, 1993)433 and forms part of the right to a
fair trial.

It was accordingly held that section 217(1)(b)(ii) violated the provisions of the Constitution, 1993.

6.1.21 If the reasoning in the Zuma case were applied to section 170 of the Criminal Procedure
Act 51 of 1977, the section would probably not survive constitutional scrutiny. Naturally, this
conclusion casts doubt upon the constitutionality of section 3(4) and (5) of the Act.

6.1.22 Accommodating the enquiry into the respondent’s alleged breach of the protection order
in the criminal court, would obviate many of the problems experienced at present. Making the
contravention of a protection order granted in terms of domestic violence legislation an offence
which is prosecuted in the criminal court, thus resulting in a criminal record, would also send out
a clear message to respondents upon whom a protection order has been served that the
continuation of domestic violence has serious consequences for them.

432
At 659.
433
Comparable to section 35 of the Constitution, 1996.
 156

6.2 Warrant of arrest

A. Problem analysis

6.2.1 In granting an interdict the judge or magistrate shall make an order authorising the issue
of a warrant for the arrest of the respondent and suspending the execution of such warrant subject
to such conditions regarding compliance with the interdict as he may deem fit (section 2(2)(a) and
(b) of the Act). The interdict and the order shall have no force and effect until served on the
respondent in the prescribed manner (section 2(3) of the Act). After the interdict has been served,
a certified copy of the interdict and the original warrant of arrest shall be delivered or send by
registered post to the applicant (regulations 3(2) and 4(7) ). The warrant of arrest may be
executed by a peace officer upon receipt of an affidavit in which it is stated that the respondent
has breached any of the conditions contained in the order (section 3(1) of the Act).

6.2.2 Fedler434 emphasises that the cooperation of police officers in arresting the abuser for
breach of the interdict is pivotal to the efficacy of the Act.

6.2.3 According to Van Rensburg435 the peace officer should execute the warrant of arrest if it
prima facie appears from the affidavit that a condition contained in the order has been breached.
He also suggests436 that, for the applicant to enjoy perpetual protection, she should be provided
with a duplicate warrant of arrest and a certified copy of the interdict after the conclusion of the
enquiry in terms of section 3(4) of the Act.

6.2.4 Daniels & Muntingh437 recommend that there should be clarity about the issuing of second
or further warrants of arrest once the interdict is violated. In the meantime applicants are left
vulnerable and unprotected as the interdict is toothless without the attached warrant of arrest.

434
Fedler 1995 SALJ 246.
435
Van Rensburg 1994 The Magistrate 102.
436
Van Rensburg 1994 The Magistrate 106.
437
Daniels & Muntingh 16.
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6.2.5 Novitz438 remarks that the Act is curious in that it places no duty upon police to respond
to domestic violence, unless an affidavit in the proper form has been signed and delivered to them,
stating that the interdict has been breached. Moreover, the police officer may execute the
conditional warrant of arrest, leaving the officer with a discretion as to actual execution. There
should be provision for police to arrest a violent abuser without a second affidavit where
circumstances clearly warrant action.439

6.2.6 Clark440 suggests that the police should issue a clear policy statement providing grounds
upon which they will exercise the discretion to execute a warrant of arrest upon receipt of an
affidavit.

B. Comparative survey of laws

England
6.2.7 The Law Commission (England)441 recommends that where there has been violence or
threatened violence the court should be required to attach a power of arrest to any specified
provisions of an order in favour of any eligible applicant unless in all the circumstances the
applicant or child will be adequately protected without such a power. Once a power of arrest has
been attached to an order, a constable may arrest the respondent without a warrant if he has
reasonable cause to believe that there has been a breach of the provisions to which the power of
arrest was attached.442

New Zealand
6.2.8 Where a protection order is in force, any member of the police may arrest, without
warrant, any person whom the member of the police has good cause to suspect has committed a

438
Novitz 45.
439
Novitz 58.
440
Clark 1996 SAJHR 598.
441
Law Com. No. 207 paragraph 5.14.
442
Law Com. No. 207 proposed clause 15(4).
 158

breach of the order. In considering whether or not to arrest a person, the member of the police
must take the following matters into account:
(a) The risk to the safety of the protected person if the arrest is not made.
(b) The seriousness of the alleged breach of the protection order.
(c) The length of time since the alleged breach occurred.
(d) The restraining effect on the person liable to be arrested of other persons or
circumstances.443

USA
Minnesota
6.2.9 A peace officer shall arrest without a warrant and take into custody a person whom the
peace officer has probable cause to believe has violated an order restraining the person or
excluding the person from the residence or the petitioner’s place of employment, even if the
violation of the order did not take place in the presence of the peace officer, if the existence of the
order can be verified by the officer.444

Pennsylvania
6.2.10 An arrest for violation of an order may be without warrant upon probable cause whether
or not the violation is committed in the presence of the police officer.445

New Jersey
6.2.11 Where a law enforcement officer finds probable cause to believe that domestic violence
has occurred, the law enforcement officer shall effect an arrest if, inter alia, there is probable cause
to believe that the alleged perpetrator has been served with the order alleged to have been
violated. If the victim does not have a copy of the purported order, the officer may verify the
existence of an order.446

443
Domestic Violence Act 86 of 1995, section 50.
444
Minnesota Domestic Abuse Act (1992), section 14(b).
445
Pennsylvania Protection From Abuse Act, section 6113(a).
446
New Jersey Prevention of Domestic Violence Act of 1991 2C:25-21, 5. a.(3).
 159

Trinidad and Tobago

6.2.12 Where a police officer believed on reasonable grounds that a persons has committed or
is committing the offence of contravening a protection order, he shall make an arrest without a
warrant.447

C. Recommendation 16 in Discussion Paper 70

6.2.13 In Discussion Paper 70 it is recommended448 that the legislation provide that:

(a) The applicant be issued with a duplicate warrant of arrest on conclusion of the
prosecution of the respondent for the offence of contravening the conditions of the
interdict.

(b) A peace officer may execute a warrant of arrest if he or she has reasonable cause
for suspecting that -
(i) an interdict is in force;
(ii) a warrant for the arrest of the respondent has been issued;
(iii) the respondent has breached any of the conditions regarding compliance
with the interdict.

(c) The peace officer who executed the warrant of arrest obtain an affidavit from the
applicant as soon as possible after the execution of the warrant of arrest.

D. Submissions on Recommendation 16 in Discussion Paper 70

6.2.14 The UWC Community Law Centre states that there is room for a significant lapse of time
between service of the interdict on the respondent and the receipt of the interdict and warrant of
arrest by the applicant, and suggests that a duty should be placed on the clerk of the court to
furnish the applicant with a copy of the interdict and the original warrant of arrest immediately

447
Trinidad and Tobago Domestic Violence Act, 1991, section 22.
448
Discussion Paper 70 paragraph 4.2.21.
 160

after an interdict is granted. The potential prejudice to the respondent will be obviated by the
retention of the provision that the interdict shall have no effect until it is served on the respondent.

6.2.15 Tshwaranang Legal Advocacy Centre recommends that the warrant of arrest should be
issued in quadruplicate - one copy to the respondent, one to the applicant, one to remain in the
court docket, and one to be lodged at a police station of the applicant’s choice. This is to ensure
that when she comes to report a breach, she will not be sent away by police officers because she
does not have a copy of the warrant with her.

6.2.16 The Department of Justice Gender Unit avers that the purpose of a suspended warrant is
unclear, and that a police officer should have the power to arrest an offender without a warrant,
if there are reasonable grounds for suspecting that a breach of an interdict has occurred.

6.2.17 The Magistrate: Durban argues that the court should have a discretion whether or not to
grant a warrant for the arrest of the respondent and that a warrant of arrest should not be issued
with interdicts as a matter of course, as a warrant can be abused by the applicant.

Issuing of duplicate warrant on prosecution of respondent

6.2.18 Whilst this recommendation is supported by UNISA Health Psychology Unit,
Tshwaranang Legal Advocacy Centre and the Department of Justice Gender Unit, these
respondents all recommend that a computerized system should be put in place so that all police
officers can assess the existence of interdicts in the absence of the physical documentation being
produced by the woman. The Magistrate: Pietermaritzburg suggests that the recommendation
be expanded to provide for a duplicate warrant where the applicant has misplaced or lost the
original warrant.

6.2.19 The Magistrate: Wynberg points out that to issue a duplicate warrant which has already
been executed is futile. A new warrant of arrest ought to be issued.

6.2.20 Recommendation 16(a) is endorsed by the UWC Community Law Centre.

 161

Execution of warrant of arrest by police officer

6.2.21 The UWC Community Law Centre points out that three situations can be distinguished:
(a) Where the peace officer has the warrant and affidavit. In this instance it is
recommended that no discretion be given to police officers, and that where a
warrant of arrest exists coupled with an affidavit, the warrant shall be executed by
the police officer. (Tshwaranang Legal Advocacy Centre endorses this
recommendation.)
(b) Where the peace officer has a warrant but no affidavit. This corresponds with
recommendation 16(c), namely that the police officer must obtain an affidavit from
the applicant as soon as possible after the execution of the warrant. The
recommendation is endorsed by UWC Community Law Centre.
(c) Duty to arrest without a warrant. This does not mean that no warrant has been
issued, merely that the peace officer does not have the warrant in his or her
possession. As long as the peace officer ensures that an interdict is in existence,
arrest without a warrant does not constitute any greater intrusion on the liberty of
the individual than arrest with a warrant.

6.2.22 Tshwaranang Legal Advocacy Centre points out that in the situation where a woman
reports breach of an interdict, but is unable to produce a copy of the interdict or the warrant, the
objective test of “reasonable grounds for suspecting that an interdict is in force” is not an
appropriate test. Where the applicant lies about the existence of an interdict, she can be charged
with perjury. This, it is argued, is sufficient a deterrent, and the police should be empowered to
act on her ipse dixit without incurring penalties for unlawful arrests. Tshwaranang recommends
the inclusion of sections in the Bill to the effect that a peace officer shall not refuse to execute a
warrant of arrest solely on the basis that the applicant does not have a copy of the interdict; and
further that no action shall be taken against a peace officer who executes a warrant of arrest unless
such warrant has been executed mala fide. Finally, it suggests a section to the effect that a peace
officer shall not be empowered to release a respondent arrested on warning.

6.2.23 The Magistrate: Durban does not support this recommendation and claims that it is highly
undesirable, in the light of the Bill of Rights, to empower a police officer to arrest a respondent
 162

merely on reasonable grounds for suspecting that an interdict or warrant of arrest has been
granted.

Affidavit from applicant after execution of warrant of arrest

6.2.24 The Department of Justice Gender Unit states that a victim should not have to supply an
affidavit before an arrest takes place. The Magistrate: Pietermaritzburg expresses concern over
the situation where the applicant refuses to supply an affidavit to the arresting officer. He argues
this would then constitute an illegal arrest and therefore a police officer should only execute the
warrant once he has obtained evidence under oath of a contravention of an interdict, so that
arresting officers can be indemnified from any allegations of unlawful arrest.

6.2.25 Recommendation 16 in Discussion Paper 70 is endorsed by:

Cape Law Society
Magistrate: Pretoria North
Natal Law Society
NICRO, Western Cape
SA National Council for Child and Family Welfare

E. Evaluation

6.2.26 Where the applicant produces the original warrant of arrest or makes an affidavit to the
effect that the warrant has been lost or destroyed, the SAPS should have limited discretion to
arrest the respondent. It appears that too wide a discretion to arrest a respondent has, in the past,
resulted in a derelict attitude by the SAPS in executing warrants of arrests. Police officers have
preferred to warn respondents rather than arrest them, which has defeated the aims of the
legislation.

6.2.27 Note is taken of the problems applicants experience where they are unable to produce the
original warrant of arrest at police stations. Therefore, it is suggested that provision be made for
a peace officer to arrest a respondent if he/she is satisfied upon receipt of an affidavit by the
applicant that -
 163

(a) an interim protection order or a final protection order is in existence;

(b) a warrant for the arrest of the respondent has been issued;
(c) the warrant of arrest has been lost or destroyed; and
(d) the respondent has breached any prohibition, condition, obligation or order
imposed in terms of the protection order.

6.2.28 For applicants to enjoy perpetual protection, they should be provided with a duplicate
warrant of arrest when the original warrant has been executed and the respondent has been
arrested, and also where the original warrant of arrest has been lost or destroyed.

6.2.29 A proposal that magistrates and judges should be empowered to issue warrants of arrest
for summary execution in appropriate cases and that they should not be obliged to suspend the
execution of the warrant, cannot be supported. At the time of granting the protection order, such
protection order has not yet been served on the respondent and the respondent would therefore
not have known that an order of court has been issued against him.
 164

6.3 Terms of the order

The issue of the definition of domestic violence ties in with the issue of the scope of interdicts and
for the purpose of this analysis regard should be had to the relevant opinions and responses
referred to in the discussion on the definition of domestic violence in Chapter 5, paragraph 5.10
et seq.

The following possible terms of protection orders are dealt with elsewhere:
* An order that the SAPS accompany the applicant to supervise the collection of
personal property - Chapter 5, paragraph 5.8 et seq.
* Exclusion of the respondent from the shared household - Chapter 5, paragraph
5.13 et seq.
* Obligations as to the discharge of rent and mortgage payments - Chapter 5,
paragraph 5.13 et seq.
* Temporary maintenance, custody and access orders - Chapter 6, paragraph 6.4 et
seq.
* Seizure of arms and dangerous weapons - Chapter 7, paragraph 7.4 et seq.

A. Problem analysis

6.3.1 The only relief provided for in the Act is contained in section 2 in terms of which an
interdict may be granted enjoining the respondent -
(a) not to assault or threaten the applicant or a child living with the parties or with
either of them;
(b) not to enter the matrimonial home or other place where the applicant is resident,
or a specified part of such home or place or a specified area in which such home
or place is situated;
(c) not to prevent the applicant or a child who ordinarily lives in the matrimonial home
from entering and remaining in the matrimonial home or a specified part of the
matrimonial home; or
 165

(d) not to commit any other act specified in the interdict.

6.3.2 In terms of section 2(2)(b) of the Act the execution of a warrant for the arrest of the
respondent must be suspended subject to such conditions regarding compliance with the interdict
as the judge or magistrate may seem fit.

B. Comparative survey of laws

England
6.3.3 Under existing English law the precise scope of a non-molestation injunction can be
tailored to the requirements of the particular case. Traditionally, a common form of order
restrains the respondent from assaulting, molesting, or otherwise interfering with the applicant.
A general prohibition can be followed by a more precise injunction against specific kinds of
behaviour complained of.449 The Law Commission450 considers it important that orders should
retain this dual capability. Where it is obvious that there should be a limitation on a particular sort
of behaviour, the order should be specific so that the respondent is left in no doubt about what he
must stop doing. However, the order also needs to be sufficiently general to cover any
objectionable behaviour in which the respondent may subsequently decide to indulge. It is
therefore recommended that the power to make non-molestation orders be so framed as to make
it clear that the order is a flexible one, capable of being tailored to the requirements of the
particular case, but the court should also be able to prohibit molestation in its general form if the
case so demands.

Australia
6.3.4 In most jurisdictions the court has flexible powers to tailor a protection order to meet not
just violent conduct but harassing and pestering conduct which may not in itself be criminal.451

449
Law Com. No. 207 paragraph 3.2.
450
Law Com. No. 207 paragraph 3.2.
451
Laws of Australia paragraph [56].
 166

The Australian Capital Territory / Northern Territory

6.3.5 It is possible to order that the respondent not approach within a certain distance of the
person for whose protection the order is made.452

New South Wales

6.3.6 Unless otherwise ordered, every order is taken to prohibit stalking or intimidation.453
Intimidation means conduct amounting to harassment or molestation, the making of repeated
telephone calls or any conduct that causes a reasonable apprehension of injury to a person, or of
violence or damage to any person or property.454

Queensland
6.3.7 The order must impose a condition that the respondent be of good behaviour and not
commit violence against the aggrieved spouse. The order may also include a condition excluding
the violent party from specified property or preventing him or her from approaching the aggrieved
party or any relative or associate of the aggrieved party.455

Victoria
6.3.8 Conditions which may be imposed include restricting or prohibiting access to premises,
keeping the defendant a specified distance from the victim, excluding the defendant from a
specified locality, such as a suburb, prohibiting the defendant from making contact, for example,
by telephone.456

Canada
Alberta
6.3.9 Referring to no-contact provisions, the Alberta Law Reform Institute457 observes that the
clearer and the more inflexible the primary no-contact provision is, the less difficulty both the

452
Laws of Australia paragraph [62], [70].
453
Laws of Australia paragraph [66].
454
Laws of Australia paragraph [45].
455
Laws of Australia paragraph [74].
456
Laws of Australia paragraph [86].
457
ALRI Report for Discussion No. 15 106.
 167

police and the litigants have in understanding and complying with the terms of the order. It is
recommended458 that the legislation should empower the court to make an order prohibiting the
respondent from making direct or indirect contact with the applicant. For further clarity and to
assist in compliance with and enforcement of the order the meaning of “no-contact” should be
explained. The order should give examples of the sorts of things that it includes in the meaning
of contact. It should not, however, limit the meaning of “no-contact” to the examples set forth
in the order. Things listed in the meaning of “no-contact” should include:
(a) Telephoning the applicant at the applicant’s residence, place of employment or
school.
(b) Going to the applicant’s place of employment, school or residence.
(c) Approaching the applicant if the respondent accidentally sees the applicant in a
public place.
(d) Watching the applicant or the applicant’s residence, place of employment or
school from a distance.
(e) Communicating with the applicant in any other way including but not limited to
mail, fax, telegram, or any other form of written communication.
(f) Communicating or attempting to communicate with the applicant in any of the
above ways by enlisting the help of any other person.

6.3.10 While it would seem preferable from an enforcement point of view to have a very
comprehensive and inflexible no-contact provision, the Alberta Law Reform Institute459 concedes
that in some instances such an order would not be feasible. It is recommended460 that where the
circumstances of the case lead to the inference that a protection order is needed but where, as a
matter of practical necessity or at the request of the applicant, the parties must, or could
potentially desire to, have safe contact with one another, the order should be very specific
structuring the terms of that contact to ensure that it does not -
(a) provide an opportunity for continued abuse; or
(b) make it impossible for the police to effectively enforce the order.

458
ALRI Report for Discussion No 15 108.
459
ALRI Report for Discussion No 15 109.
460
ALRI Report for Discussion No 15 110.
 168

6.3.11 The Alberta Law Reform Institute's461 final recommendation in regard to personal contact
and communication are as follows:
The respondent may be restrained from contacting the claimant or associating in any way
with the claimant and from subjecting the claimant to domestic abuse.

Examples of the type of conduct that may be restrained include the following:
• Attending at or near or entering any specified place that is attended regularly by
the claimant, other family members, or other specified persons, including the
residence . . .property, business, school, or place of employment of the claimant
or of other family members or other specified persons.

• Making any communication, including personal, written or telephone contact, or

contact by any other communication device, either directly or through the agency
of another person, with the claimant , other family members, or other specified
persons, or their employers, employees, or co-workers.

• Persons other than the claimant who are included in the order should be notified
of the fact of their inclusion.

Saskatchewan
6.3.12 The Saskatchewan Victims of Domestic Violence Act462 contains, inter alia, the following
provisions restraining the respondent from -
(a) communicating with or contacting the victim and other specified persons;
(b) attending at or near or entering any specified place that is attended regularly by the
victim or other family members, including the residence, property, business,
school, or place of employment of the victim and other family members;
(c) making any communication likely to cause annoyance or alarm to the victim,
including personal, written or telephone contact with the victim and other family
members or their employers, employees or co-workers or others with whom
communication would likely cause annoyance or alarm to the victim;
(d) taking, converting, damaging or otherwise dealing with property that the victim
may have an interest in.

461
ALRI Report No 74 62 - 63.
462
S.S. 1994, c. V-6.02, sections 3(3) and 7.
 169

Nova Scotia
6.3.13 Proposed Nova Scotia legislation463 provides for orders restraining the respondent from -
(a) subjecting the victim to domestic violence;
(b) harassing the victim;
(c) entering the residence, property, school or place of employment of the victim or
other family or household members of the victim and requiring the respondent to
stay away from any specified place that is named in the order and is frequented
regularly by the victim or other family or household members;
(d) making any communication likely to cause annoyance or alarm including but not
limited to personal, written or telephone contact with the victim or other family
members or their employers, employees or fellow workers or others with whom
communication would be likely to cause annoyance or alarm to the victim;
(e) taking, converting or damaging property in which the victim may have an interest.

British Columbia
6.3.14 British Columbia legislation464 has similar provisions.

New Zealand
6.3.15 It is a standard condition of every protection order that the respondent must not -
(a) physically or sexually abuse the protected person;
(b) threaten to physically or sexually abuse the protected person;
(c) damage, or threaten to damage, property of the protected person;
(d) engage, or threaten to engage, in other behaviour, including intimidation or
harassment, which amounts to psychological abuse of the protected person; or
(e) encourage any person to engage in behaviour against a protected person, where
the behaviour, if engaged in by the respondent, would be prohibited by the
order.465

463
ALRI Report for Discussion No 15 195 - 200.
464
ALRI Report for Discussion No 15 201 - 203.
465
Domestic Violence Act 86 of 1995, section 19(1).
 170

6.3.16 It is a condition of every protection order (referred to as the non-contact provision) that
at any time other than when the protected person and the respondent are living in the same
dwelling house, the respondent must not -
(a) watch, loiter near, or prevent or hinder access to or from, the protected person’s
place of residence, business, employment, educational institution, or any other
place that the protected person visits often;
(b) follow the protected person about or stop or accost the protected person in any
place;
(c) without the protected person’s express consent, enter or remain on any land or
building occupied by the protected person;
(d) where the protected person is present on any land or building, enter or remain on
that land or building in circumstances that constitute a trespass; or
(e) make any other contact with the protected person (whether by telephone,
correspondence, or otherwise), except such contact -
(i) as is reasonably necessary in any emergency;
(ii) as is permitted under any order or written agreement relating to
custody of, or access to, any minor; or
(iii) as is permitted under any special condition of the protection
order.466

6.3.17 The court may in addition impose any special conditions that are reasonably necessary to
protect the protected person from further domestic violence by the respondent.467

USA
Model Code on Domestic and Family Violence
6.3.18 The court may grant the following relief:
(a) Enjoin the respondent from threatening to commit or committing acts of domestic
or family violence against the petitioner.

466
Domestic Violence Act 86 of 1995, section 19(2).
467
Domestic Violence Act 86 of 1995, section 27(1).
 171

(b) Prohibit the respondent from harassing, annoying, telephoning, contacting, or

otherwise communicating with the petitioner, directly or indirectly.
(c) Order the respondent to stay away from the residence, school, place of
employment of the petitioner, or any specified place frequented by the petitioner.
(d) Order such other relief as the court deems necessary to protect and provide for the
safety of the petitioner.468

General
6.3.19 Women, Law & Development International469 report that most protection orders generally
consist of direct orders prohibiting a party from engaging in specified acts of violence. The orders
may instruct the perpetrator to desist from abusing or contacting the victim, coming within their
proximity, or interfering with the victim’s property. In some of the legislation, the respondent may
be ordered not to use an agent or third party to engage in any of the prohibited acts.

C. Recommendation 17 in Discussion Paper 70

6.3.20 In Discussion Paper 70 it was recommended470 that the legislation:

(a) In addition to the power to exclude the respondent from the shared residence,
empower the court to prohibit the respondent to -
(i) enter a specified part of the shared residence or a specified area in
which the shared residence is situated;471 or
(ii) prevent the applicant or any relevant child who ordinarily lives or
lived in the shared residence from entering or remaining in the
shared residence or a specified part of the shared residence.472

468
Model Code, section 305, 306.
469
State Responses 84 - 85.
470
Discussion Paper 70 paragraph 4.3.24.
471
Section 2(1)(b) of the Act.
472
Section 2(1)(c) of the Act.
 172

(b) Provide that the court may grant an interdict against the respondent prohibiting the
respondent to -
(i) physically or sexually abuse the applicant;
(ii) threaten to physically or sexually abuse the applicant;
(iii) intimidate the applicant;
(vi) harass the applicant;
(v) damage property in which the applicant may have an interest;
(vi) threaten to damage property in which the applicant may have an
interest;
(vii) enter, watch, loiter near, or prevent or hinder access to or from,
the applicant’s place of residence, business, employment,
educational institution, or any other place that the applicant visits
often;
(viii) follow the applicant or stop or approach the applicant in any place;
(ix) make any contact with the applicant by telephone or any form of
written communication; or
(x) enlist the help of another person to act in any of the above ways.

(c) Retain the power (section 2(1)(d) of the Act) to prohibit any other act specified
in the interdict.

(d) Empower the court to impose any special conditions that are reasonably necessary
to protect and provide for the safety of the applicant or any relevant child.
[“Relevant child” is to be defined as any child whose interests the court considers
relevant.]

(e) Empower the court to order that all or any of the prohibitions or conditions
contained in the interdict apply for the benefit of any relevant child.

D. Submissions on Recommendation 17 in Discussion Paper 70

 173

6.3.21 M Horton suggests that the terms of the interdict be framed generally with a list of specific
prohibitions following. Merely having a list of specific prohibitions may result in the respondent
moving on to other forms of harassment. A respondent may believe that because certain types of
behaviour have been specifically prohibited, other types of equally unacceptable behaviour are still
permissible.

6.3.22 Tshwaranang Legal Advocacy Centre recommends that the section that deals with terms
of the order should be aligned with the definition of "domestic violence". In addition, it
recommends that the terms "harassment and intimidation" be defined in the legislation, as they are
nowhere defined in South African law.

6.3.23 The SA National Council for Child and Family Welfare makes the point that family
members should also be prevented from harassing and intimidating the applicant, as they often
take sides and are used by the respondent to exert pressure on the applicant.

6.3.24 UWC Community Law Centre recommends that the court must be empowered to prohibit
additional acts that are currently not listed in the recommendation. In order to ensure that the
judicial officer does not delineate the ambit of the prohibited conduct too narrowly, the exposition
of prohibited acts should be more specific and the court should be empowered to prohibit any
other conduct that constitutes controlling and abusive behaviour that harms the health, safety or
well-being of the applicant.

6.3.25 Recommendation 17 in Discussion Paper 70 is endorsed by:

Magistrate: Pietermaritzburg
Magistrate: Pretoria North
Natal Law Society
NICRO, Western Cape

E. Evaluation
 174

6.3.26 The relief provided for in section 2(1)(a) - (c) of the Act is clearly inadequate and the
extent to which section 2(1)(d) can be used to introduce innovative limitations on a particular sort
of behaviour remains uncertain. The inclusion in the legislation of a comprehensive list of actions
which the respondent may be prohibited from doing, would ensure that orders are specific so that
the respondent is left in no doubt about what he must stop doing. The inclusion of a list of
possible prohibitions would, in addition, provide clarity and promote consistency in determining
what type of relief may be granted.

6.3.27 However, the inherent danger of an exhaustive list of prohibitions is that some kind of
abusive behaviour might not be covered. With a view to ensuring that the legislation extends
maximum protection to victims of domestic violence, the retention of a flexible power (section
2(1)(d) of the Act) to tailor the prohibitions to meet conduct which may not be included in the
list, appears to be unavoidable. The New Zealand Domestic Violence Act473 empowers the court
to impose any special conditions that are reasonably necessary to protect the protected person
from further domestic violence by the respondent. In terms of the Model Code on Domestic and
Family Violence474 the court may order such other relief as the court deems necessary to protect
and provide for the safety of the petitioner.

6.3.28 The domestic sphere in which domestic violence takes place provides the basis for
extending protection to persons other than the applicant. Children would obviously require such
protection. The “paramount importance of a child’s best interests”475 dictates that the court
should of its own accord make orders for the protection of a child. It is clearly desirable for the
court to have a discretion to make orders in relation to as wide a range of children as possible.

473
See paragraph 6.3.17 above.
474
See paragraph 6.3.18 above.
475
Constitution, 1996, section 28(2).
 175

6.4 Temporary maintenance, custody and access orders

A. Problem analysis

6.4.1 Fedler476 asserts that women’s lack of material resources permeates the abusive context.
Aside from fear, economic dependence is the single most common reason why women remain with
or return to their abusers. To offer substantive relief, available remedies must necessarily respond
to this reality. While women can survive better without violence, they cannot survive at all
without maintenance for themselves and their children. In the United States, a majority of states
statutorily authorise the payment by the abuser of support to a spouse and maintenance for
children as part of a civil protection order. It is submitted that magisterial discretion should be
increased to include maintenance orders simultaneously with the issuing of the protection order.

6.4.2 It is further pointed out477 that children often become the contact point through which a
batterer can retain control over women, by asserting his rights to custody and reasonable access.
Batterers often fight for child custody, refuse to pay maintenance for children and sometimes even
resort to kidnapping children. Domestic violence, custody and maintenance, properly viewed, are
facets of one predicament. Accordingly, eliminating parts of the predicament, while leaving others
unaddressed, often fails to provide the woman with a sense of safety. Unless the custody issue
is resolved in her favour, she is always potentially at risk that her abusive partner will gain physical
access to her through an exercise of his legal rights as the father of her children. On issuing a
protection order, magistrates are apprised of sufficient facts on the strength of which temporary
orders of custody could be made. Such powers ought to be extended to them.

6.4.3 Le Roux478 states that the reality is that the victim of domestic violence finds herself in
a weak position of economic dependency and is therefore forced to remain in the violent home for
her economic security. Before legislation can really come to the applicant’s rescue, the available

476
Fedler 1995 SALJ 241.
477
Fedler 1995 SALJ 241 - 242.
478
Le Roux 1997 De Jure
 176

remedies should respect this reality. A magisterial discretion to issue a maintenance order in
conjunction with the interdict would be a sensible way of meeting this need of the applicant.

6.4.4 Clark479 asserts that the lack of relief apart from an interdict is a problem: the Act does
not deal with the issues of custody or maintenance. Magisterial powers could be conferred in the
Act to grant, in addition to the interdict, a temporary custody, access order and/or maintenance
order, where necessary. Obviously, if these orders are granted at this stage, then this should not
prejudice a later final hearing. These orders should be temporary or they may delay the procedure
for an interdict.

B. Comparative survey of laws

Canada
Alberta
6.4.5 The general approach of the Alberta Law Reform Institute480 is that of providing the
remedies required to protect claimants and children in their care from abuse, without encroaching
unnecessarily on matters that are better resolved in another forum. It is thus proposed that the
respondent may be restrained from contacting the claimant or children where this is necessary to
protect them from harm, yet the question of custody (which requires determination of what is in
the child’s best interests, and thus considerable information, to enable the determination to be
made properly), is left to be resolved in a forum in which such information can be made available
to the adjudicator.

6.4.6 In an emergency situation, the safety of the claimant may be ensured first by an order that
the respondent not contact the claimant. If there are children, the children may or may not
themselves be at risk of harm. If they are, there should also be an order that the respondent not
contact the children. However, even if there appears to be no risk of harm to children, contact
between the respondent and children may compromise the safety of the claimant. If this is so, it
may or may not be possible to structure the logistics of access to the children by the respondent

479
Clark 1996 SAJHR 597.
480
ALRI Report No 74 77.
 177

in such a way that contact does not compromise the safety of the claimant. If it is possible, this
should be done. If it is not, the “no-contact” order should be made to apply to both the claimant
and the children.481

6.4.7 Addressing the situation where there is an existing custody order in place, the Alberta Law
Reform Institute482 reasons that though it may be accurate to say that a lower court is not
competent to vary an existing custody order, it is arguable that such court can still grant a
protection order. The argument is based on the idea that protecting a child against harm by
granting a “no-contact” order is a different issue than deciding which of two parents should have
custody.

6.4.8 The two types of orders (custody/access and “no-contact”) do not conflict because they
have different purposes. Protection orders do not conflict with custody orders because the two
types of orders have different purposes. A protection order may temporarily suspend or qualify
a respondent’s custody order, but it does not re-adjudicate the custody issue.483

6.4.9 The Alberta Law Reform Institute484 recommends that it should be possible to make the
following orders in respect of children:
• Where there is a risk of harm to a child, an order of “no-contact” with the child;
if the risk is minimal, there may be an order of supervised contact.

• Where the respondent’s contact with the child would create a risk to a claimant,
and order setting out the logistics of the respondent’s access to the child so that
the claimant’s safety is not compromised; if this is not possible, there may be an
order of “no-contact” with the child.

6.4.10 As regards financial relief, the Alberta Law Reform Institute485 considers it important to
distinguish between the type of financial relief that may be needed as a direct consequence of

481
ALRI Report No 74 77.

482
ALRI Report No 74 80.
483
ALRI Report No 74 82 - 83.
484
ALRI Report No 74 82.
485
ALRI Report No 74 73 - 74.
 178

abuse and the resulting need for separation on the one hand, and an ongoing support obligation
on the other. A respondent’s abusive actions could give rise to a financial emergency for the
claimant. For example, a claimant may have relied on the respondent for support (though there
may have been no legal obligation) and, having left the home to escape further abuse, could
become suddenly destitute or homeless. The abuse itself may have occasioned expenses such as
medical, dental, or counselling costs. The separation may give rise to expenses such as legal costs,
and the costs associated with moving. The separation may also place the claimant in a position
of sudden financial need (for example, a temporary inability to work, or a sudden withdrawal of
support). In such a case the respondent should be required to provide immediate financial relief
regardless of whether an independent support obligation is owed. However, this relief should be
limited to cover the emergency created by the abuse.

6.4.11 The relief discussed in the preceding paragraph is distinct from an ongoing support
obligation and should be available regardless of whether the respondent has an obligation to
support the claimant and children independently of the abuse issue. The Alberta Law Reform
Institute486 accordingly recommends that it should be possible to make an order that the
respondent pay to the claimant financial relief made necessary by the abuse and resulting
separation.

Nova Scotia
6.4.12 Proposed Nova Scotia legislation487 provides that the court may make an order -
(a) awarding temporary custody of a child and in making such an order the court shall
presume that the best interests of the child are served by an award of custody to
the nonviolent party;
(b) providing for access to children provided that -
(i) the order shall protect the safety and well being of the victim and children
and shall specify the place and frequency of visitation;

486
ALRI Report No 74 74.
487
Quoted in ALRI Report for Discussion No 15 123.
 179

(ii) visitation arrangements shall not compromise any other remedy provided
by the court by requiring or encouraging contact between the victim and
the respondent;
(iii) such order may include a designation of a place of visitation away from the
victim’s residence, the participation of a third party or supervised
visitation;
(iv) the court upon motion of the victim considers a request for an
investigation or evaluation by an appropriate person or agency to assess
the risk of harm to the child where the victim has a sound basis for making
the request; and
(v) the court orders that the cost of supervised access and any investigation
or evaluation shall be borne by the respondent.

6.4.13 As regards financial provision for the applicant, the court may make an order requiring the
respondent to pay emergency monetary relief to the victim and other dependants, if any, until such
time as an obligation for support shall be determined pursuant to any other Act.488

New Zealand
6.4.14 The court may impose special conditions which may relate to the manner in which
arrangements for access to a child are to be implemented.489

USA490

488
Proposed Nova Scotia legislation quoted in ALRI Report for Discussion No 15 196 -
197.
489
Domestic Violence Act 86 of 1995, section 27(2)(a).
490
The Alberta Law Reform Institute (ALRI Report for Discussion No 15 122, 145) notes
that most American codes allow for the granting of an order for custody and access and spousal
 180

Model Code on Domestic and Family Violence

6.4.15 The court may grant temporary custody of a minor child to the petitioner.491 It may also
specify arrangements for visitation of any minor child by the respondent and require supervision
of that visitation if necessary to protect the safety of the petitioner or child.492 The court may
order the respondent to pay for the support of the petitioner and minor child if the respondent is
found to have a duty to support the petitioner or minor child.493

Minnesota
6.4.16 The court may award temporary custody or establish temporary visitation with regard to
minor children of the parties on a basis which gives primary consideration to the safety of the
victim and the children. If the court finds that the safety of the victim or the children will be
jeopardized by unsupervised or unrestricted visitation, the court shall condition or restrict
visitation as to time, place, duration, or supervision, or deny visitation entirely, as needed to guard
the safety of the victim and the children. The court may also establish temporary support for
minor children or a spouse, and order the withholding of support from the income of the person
obligated to pay the support.494

New Jersey
6.4.17 The court may grant an order providing for visitation. The order shall protect the safety
and well being of the plaintiff and minor children and shall specify the place and frequency of
visitation. Visitation arrangements shall not compromise any other remedy provided by the court
by requiring or encouraging contact between the plaintiff and defendant. Orders for visitation may
include a designation of a place of visitation away from the plaintiff, the participation of a third
party or supervised visitation.495 The court is also allowed to order the respondent to pay the
victim monetary compensation for losses suffered as a direct result of the act of domestic violence.
Compensatory losses include, inter alia, loss of earnings, out-of-pocket losses for injuries

and child support along with the order for protection.

491
Model Code, sections 305(3)(f), 306(2)(g).
492
Model Code, section 306(3)(b).
493
Model Code, section 306(3)(d).
494
Minnesota Domestic Abuse Act (1992), section 6(3), (4).
495
New Jersey Prevention of Domestic Violence Act of 1991, 2C:25-29b.(3).
 181

sustained, cost of repair or replacement of property damaged or destroyed or taken by the

respondent, cost of counselling or the victim, and moving or other travel expenses.496

C. Recommendation 18 in Discussion Paper 70

6.4.18 In Discussion Paper 70 it was recommended497 that the legislation:

(a) Empower the court to grant, together with the interdict, maintenance, custody and
access orders.

(b) Provide that such orders shall subsist only until such time as a determination in
respect thereof is made pursuant to any other applicable law.

(c) Provide that conditions imposed by the court may also relate to the manner in
which arrangements for access to a child are to be implemented.

D. Submissions on Recommendation 18 in Discussion Paper 70

6.4.19 The majority of respondents support this recommendation. Most of the comments point
to potential problems with implementation of the recommendation.

6.4.20 The Department of Justice Gender Unit endorses the view that any award of
custody made under legislation should be seen as limited and subsisting only until such time as
there is a review under other legislation dealing expressly with custody and access. The Unit
recognizes that a provision in which courts are able to grant orders for custody and access may
ultimately work against the interests of the abused woman in that it empowers a respondent to
gain access not only to the children, but to her too. The Unit proposes that magistrates should be
encouraged to endeavour to formulate interdicts which do not conflict with existing access orders

496
New Jersey Prevention of Domestic Violence Act of 1991, 2C:25-29b.(4).
497
Discussion Paper 70 paragraph 4.4.28.
 182

but which nevertheless maximize protection for the woman. It further suggests that the legislation
should provide clear guidelines for the courts in respect of these orders:
(a) The best interests of the child must be the paramount principle.
(b) There should be a rebuttable presumption that where there has been domestic
violence, it is in the best interests of the child to grant custody to the applicant.
(c) Any access arrangements should be carefully defined and that copies of the
custody and access orders should be given to both parties with the interdict.

6.4.21 Gauteng Members of the ALS Family Law Standing Committee and the Laws and
Administration Committee of the General Council of the Bar endorse the notion of interim
custody orders. Gauteng Members of the Als Family Law Standing Committee feel that
maintenance should remain in the hands of existing forums. The Magistrate: Paarl cautions that
a proper procedure for a full investigation of the issues should be established before the court
grants maintenance, custody or access orders. The Magistrate: Pietermaritzburg expresses
concern that in relation to custody and access orders, it may be that the magistrate will be
usurping the authority of the High Court. He asks what would happen if the parties cannot
reconcile but neither party sues for divorce: will the order remain in force indefinitely? He
intimates that though he supports the recommendations in theory, there could be many practical
difficulties with implementation. The Magistrates: Pretoria and Johannesburg strongly oppose
this recommendation. They claim that to include access, custody and maintenance orders in the
process will turn the quick procedures provided for by the Act into a lengthy undesirable process.
Further, they are concerned that two courts may make contradictory orders on these issues which
will lead to confusion. The Cape Law Society expresses strong reservations in relation to any
provision permitting the granting or variation of maintenance, custody and access orders.

6.4.22 Mpumalanga Provincial Government proposes that the Maintenance Bill should form part
of the Domestic Violence Bill. The Natal Law Society suggests that the Family Advocate should
be part of the process of determining when these orders should be made.

6.4.23 UWC Community Law Centre suggests the inclusion of specific criteria to assist judicial
officers to determine the best interests of the child. It also recommends that the legislation contain
 183

a presumption that custody be granted to the non-violent parent and that unsupervised access by
the abusive parent not be permitted. Provision should be made for a family member or friend to
supervise access at no cost to the applicant, or supervised visitation centres should be established.
The Judge President: Northern Cape claims that this recommendation does not take into account
the existence of a current Maintenance Court order, and that the court granting the interim
interdict will not have the power to vary such an order if it considers that changed circumstances
necessitate a variation, unless it is specifically given the power to do so. He recommends that the
legislation should expressly provide magistrates with the power to vary current Maintenance
Court orders. The Magistrate: Durban recommends that maintenance should be defined in the
legislation and that such an order should be restricted to a specified period of time only to ensure
that it is temporary.

6.4.24 A number of respondents stress the need for magistrates to be properly trained to deal with
these issues for this recommendation to operate effectively.

6.4.25 Recommendation 18 is Discussion Paper 70 is endorsed by:

Magistrate: Pretoria North
M Horton
NICRO, Western Cape
SA National Council for Child and Family Welfare

E. Evaluation

6.4.26 It is recognized that many women remain in abusive relationships due to financial
dependence upon a partner. When a woman therefore seeks legal protection, her circumstances
are affected by economic factors. Separating from an abusive partner often imposes emergency
financial expenses on the victim. In order for the legal protection offered by a court order to
reflect the social context of victims of domestic violence, it is submitted that the court must be
empowered, in its discretion, to make orders for emergency monetary relief to be paid to the
applicant to cater for expenses that have already been incurred as a result of the domestic violence,
such as loss of earnings, medical and dental expenses, moving and accommodation expenses.
 184

6.4.27 The view of the Alberta Law Reform Institute498 is that emergency monetary relief to cover
the emergency created by the abuse is distinct from an ongoing support obligation and should be
available regardless of whether the respondent has an obligation to support the victim and children
independently of the abuse issue. Maintenance orders should be obtained separately from the
protection order and in the appropriate forum so that issues of overlapping jurisdiction do not
arise.

6.4.28 An order for educational expenses, where such expenses are incurred as a result of an act
of domestic violence (although possibly a future expense), should also be catered for. The right
to education is a fundamental human right enshrined in section 29 of the Constitution, 1996. This
right should not be compromised by a domestic violence situation.

6.4.29 It seems that there is a need to deal with the link between contact with children and
domestic violence in an effective way, failing which the safety of a victim of domestic violence
may be seriously compromised. Children should not become the contact point through which the
respondent can retain control by asserting his rights to custody and access.

6.4.30 Consultation suggests strong support for vesting presiding officers with a discretion to
make an order for temporary custody and access in appropriate circumstances. The comparative
survey of laws499 also points in this direction. The forum for granting a protection order does not
appear to be the appropriate forum for resolving issues relating to custody and access, due to the
possible existence of such an order from a higher court. However, orders regulating contact
between the abuser and his children may be necessary to protect the applicant and children. In the
context of domestic violence the goals of such orders are to ensure that children who are at risk
are protected from abuse and that the protection of the adult applicant is not compromised by the
arrangements relating to the contact between the respondent and any children living with the
applicant.

498
See paragraph 6.4.11 above.
499
See paragraph 6.4.12 et seq above.
 185

6.4.31 Section 28(2) of the Constitution, 1996, provides that a child’s best interest is of
paramount importance in every matter concerning the child. Hence, where children are at risk of
harm from the respondent, the court should be empowered to refuse the respondent contact with
any child if it is shown that contact is not in the best interests of such child. Even where there is
no risk of safety to the children, the extent to which the respondent may use control over the
children to gain physical access to the applicant, may also warrant a conclusion that the best
interests of the child are served by refusing him contact or structuring such contact.

6.4.32 The reasoning of the Alberta Law Reform Institute500 is that protecting a child against
harm by granting a no-contact order is a different issue from deciding which of two parents should
have custody. The two types of orders (custody/access and “no-contact”) do not conflict because
they have different purposes. A protection order may temporarily suspend or qualify a
respondent’s custody order, but it does not re-adjudicate the custody issue.

500
Paragraph 6.4.7 - 6.4.8 above.
 186

6.5 Costs

A. Problem analysis

6.5.1 The Act makes no provision for a costs order to be granted at any stage of the
proceedings. One view is that the lack of authority to apply for a costs order means that
applicants who are in a position to afford to apply for other remedies are discouraged from making
use of the interdict procedure, leaving more time for applicants in need. Another view is that it
is a matter for the court to decide and that discretionary powers should be granted to the courts.501

B. Comparative survey of laws

Australia
New South Wales / Northern Territory / Queensland
6.5.2 Costs may be awarded but not against the person seeking protection unless the application
for an order was frivolous or vexatious.502 Northern Territory refers to an application which was
in bad faith and was unreasonable.503

Tasmania
6.5.3 Costs may be awarded against either party.504

Victoria
6.5.4 Each party bears his or her own costs unless the court considers there are exceptional
reasons for making an order for costs.505

Australian Capital Territory

501
Submission to the Commission by magistrates of the Cape Peninsula.
502
Laws of Australia paragraph [66], [74].
503
Laws of Australia paragraph [70].
504
Laws of Australia paragraph [82].
505
Laws of Australia paragraph [86].
 187

6.5.5 The Community Law Reform Committee506 recommends that a provision that each party
to proceedings shall bear their own costs unless the court otherwise orders should be inserted in
domestic violence legislation.

Canada
Alberta
6.5.6 The Alberta Law Reform Institute507 maintains that it would seem reasonable to allow the
court to award costs to the applicant.

Nova Scotia
6.5.7 Proposed legislation508 provides for an order requiring the respondent to pay the
reasonable legal and other costs or expenses of the application necessarily incurred by the victim.

Saskatchewan
6.5.8 A victim’s assistance order may contain a provision requiring the respondent to pay the
victim compensation for monetary losses suffered as a direct result of the domestic violence,
including legal expenses and costs of an application pursuant to the relevant Act.509

C. Recommendation 19 in Discussion Paper 70

6.5.9 In Discussion Paper 70 it was recommended510 that the legislation should not provide for
a costs order to be granted at any stage of the proceedings.

D. Submissions on Recommendation 19 in Discussion Paper 70

506
CLRC Report 11 (Internet reference).
507
ALRI Report for Discussion No 15 150.
508
Quoted in ALRI Report for Discussion No 15 199.
509
Victims of Domestic Violence Act S.S. 1994, c. V-6.02, section 7(1)(f).
510
Discussion Paper 70 paragraph 4.5.12.
 188

6.5.10 Many of the respondents seem to assume that this recommendation is a bar to a
magistrate’s discretion to make a costs order, and for this reason, many oppose the
recommendation and suggest that the court should have a discretion to make a costs order.

6.5.11 The Department of Justice Gender Unit seems to be in favour of a provision that prohibits
a magistrate from making a costs order altogether in these proceedings.

6.5.12 UWC Community Law Centre supports the recommendation to the extent that it affirms
that the court should be given a discretion to award costs (including the applicant’s legal costs)
in favour of the applicant.

6.5.13 Recommendation 19 is endorsed by the SA National Council for Child and Family
Welfare.

E. Evaluation

6.5.14 A general provision for costs orders may result in complicated applications making an
intended simple and swift procedure once again expensive and time-consuming. The inclusion of
a prohibition on an order of costs save in circumstances where the court is satisfied that a party
has acted frivolously, vexatiously or unreasonably, ensures that an innocent party will not be
saddled with the legal costs of the other party.
 189

6.6 Open court or behind closed doors?

A. Problem Analysis

6.6.1 In the Rutenberg case511 the use of the phrase “in chambers” in section 2(1) of the Act
was scrutinised. Thring J came to the following conclusion:
. . . it does not necessarily follow that, merely because a Judge or magistrate sits in his
chambers, members of the public are excluded from attending the proceedings . . .
Nowhere in the Act or regulations is it stipulated that applications for interdicts under
section 2(1) thereof are to be held in camera or, to use the language of section 5(2) of the
Magistrates’ Courts Act, “with closed doors”. . . Of course, in particular circumstances
the judge or magistrate concerned may, in the exercise of his discretion under section 16
of the Supreme Court Act512 or section 5(2) of the Magistrates’ Courts Act 513 . . . direct
that particular proceedings, including an application for an interdict under the Act, be
conducted in camera . . . In other words, it is not the place where the judicial officer sits
which governs whether or not the session is to be open to the public, but the application
or non-application of the provisions of section 16 of the Supreme Court Act or section 5
of the Magistrates’ Courts Act . . .

It seems to me that the phrase “in chambers” was introduced into the Act as a purely
permissive measure, because it was envisaged that many applications for interdicts under
section 2(1) would be made outside normal court hours, when a courtroom and court staff
would not be readily available. To read more into it than that is . . . simply not warranted.

6.6.2 Referring to the enquiry in section 3(4) of the Act, Thring J held514 that the conviction and
sentence of persons for criminal offences was a purely judicial function and that section 25(3)(a)

511
Rutenberg v Magistrate, Wynberg 1997 4 SA 735 (C) 748 - 749.
512
“Save as is otherwise provided in any law, all proceedings in any court of a division
shall, except in so far as any such court may in special cases otherwise direct, be carried on in
open court.”
513
“The court may in any case, in the interests of good order or public morals, direct that
a civil trial shall be held with closed doors, or that (with such exceptions as the court may direct)
minors or the public generally shall not be permitted to be present thereat.”
514
Rutenberg v Magistrate, Wynberg 1997 4 SA 735 (C) 744.
 190

of the Constitution, 1993 (every accused person shall have the right to a fair trial, which shall
include the right to a public trial before an ordinary court of law) was applicable.515

B. Comparative survey of laws

New Zealand
6.6.3 The court has the power to hear proceedings in private or to exclude any person from the
court.516

Canada
Saskatchewan
6.6.4 The court may order that the hearing of an application or any part of the hearing be held
in private.517

C. Recommendation 20 in Discussion Paper 70

6.6.4 In Discussion Paper 70 it was recommended518 that the legislation provide that proceedings
shall, except in so far as the court may in special cases otherwise direct, be held in camera.

D. Submissions on Recommendation 20 in Discussion Paper 70

6.6.5 NICRO, Western Cape suggests that an applicant should also be allowed to be
accompanied in court by a person of her choice in a supportive capacity. Tshwaranang Legal
Advocacy Centre supports this recommendation in principle, but warns that the legislation should
not bind courts to a procedure if the system does not have the capacity to implement it.

515
Section 35(3)(c) of the Constitution, 1996, provides that every accused has a right to
a fair trial, which includes the right to a public trial in an ordinary court.

516
Domestic Violence Act 86 of 1995, section 83.
517
Saskatchewan Victims of Domestic Violence Act S.S. 1994,c. V-6.02, section 9(2).
518
Discussion Paper 70 paragraph 4.6.7.
 191

6.6.6 Recommendation 20 in Discussion Paper 70 is endorsed by:

Cape Law Society
Department of Justice Gender Unit
Magistrate: Pietermaritzburg
Magistrate: Pretoria North
M Horton
Mpumalanga Provincial Government
Natal Law Society
SA National Council for Child and Family Welfare
UWC Community Law Centre

E. Evaluation

6.6.7 With a view to protecting the interests of victims of domestic violence, proceedings in
terms of domestic violence legislation should be held behind closed doors, save in circumstances
where the court on good cause shown directs otherwise. Because of the nature of domestic
violence, such a provision will probably survive constitutional scrutiny.
 192

6.7 Obligation to report ill-treatment of children

A. Problem analysis

6.7.1 Section 4 of the Act reads as follows:

Any person who examines, treats, attends to, advises, instructs or cares for any child in
circumstances which ought to give rise to the reasonable suspicion that such child has been
ill-treated, or suffers from any injury the probable cause of which was deliberate, shall
immediately report such circumstances -
(a) to a police official; or
(b) to a commissioner of child welfare or a social worker referred to in section
1 of the Child Care Act, 1983 (Act 74 of 1983).

6.7.2 Failure to comply with the provisions of section 4 constitutes an offence for which a
penalty of a fine or imprisonment for three months or both such fine and such imprisonment may
be imposed (section 6 of the Act).

6.7.3 According to Sinclair519 section 4 ties in well with section 30(1)(d) of the Constitution,
1993, which entrenches the right of children not to be neglected or abused.520

6.7.4 Section 4 of the Act is a very broad section which to some extent appears to overlap with
section 42 of the Child Care Act 74 of 1983. Sections 42(1), (5) and (6) of the latter Act have
been substituted by section 15(a) and (b) of the Child Care Amendment Act 96 of 1996,
provisions which will be put into operation by proclamation:
Notwithstanding the provisions of any other law every dentist, medical practitioner, nurse,
social worker or teacher, or any person employed by or managing a children's home, place
of care or shelter, who examines, attends or deals with any child in circumstances giving
rise to the suspicion that child has been ill-treated, or suffers from any injury, single or
multiple, the cause of which probably might have been deliberate, or suffers from a
nutritional deficiency disease, shall immediately notify the Director-General or any officer
designated by him or her for the purposes of this section, of those circumstances.

519
Sinclair 137 fn 366.
520
In terms of section 28(1)(d) of the Constitution, 1996 every child has the right to be
protected from maltreatment, neglect, abuse, or degradation.
 193

Any dentist, medical practitioner, nurse, social worker or teacher, or any person employed
by or managing a children's home, place of care or shelter, who contravenes any provision
of this section shall be guilty of an offence.

No legal proceedings shall lie against any dentist, medical practitioner, nurse, social
worker or teacher, or any person employed by or managing of a children's home, place of
care or shelter, in respect of any notification given in good faith in accordance with this
section.

6.7.5 Section 4 of the Act does not contain a "good faith" clause. Van Dokkum521 argues that
the one redeeming feature of section 42 of the Child Care Act is that it protects the reporter from
legal proceedings (for example, a defamation action by the parent or guardian of the victim) if the
report is made in good faith. As an incentive to overcome public reluctance to report possible
offenders, the "good faith" clause provides that all persons should be permitted to report in good
faith their reasonable suspicions of child abuse to appropriate authorities and agencies, with
protection against criminal and civil liability for non-malicious, even if erroneous, reporting. Van
Dokkum522 points out that the most obvious practical implication of the absence of a good faith
clause is that if affects the question of proof. Under the Act, where the facts seem to indicate
something less than good faith, the burden of proof to dispel this impression would be on the
reporter. The legislature has, unfortunately, seen fit to remove the safety net that would
encourage reporting, not maliciously, but in good faith.523

6.7.6 Criticising section 42 of the Child Care Act, Van Dokkum524 questions the limitation of
reporters to specified health professionals. What of mental-health professionals? Further afield,
what of teachers, creche supervisors and day care providers? There are many categories of
professional who are more likely to come into frequent contact with children.

521
N van Dokkum "The Statutory Obligation to Report Child Abuse and Neglect" 1996
Acta Juridica 163 173.
522
Van Dokkum 1996 Acta Juridica 173.
523
Van Dokkum 1996 Acta Juridica 174.
524
Van Dokkum 1996 Acta Juridica 171.
 194

B. Comparative survey of laws

USA
6.7.7 Each of the 50 state jurisdictions identifies who must report and there is some variation
across the states. For example, every jurisdiction requires health practitioners and teachers to
report. Social workers must report in 40 states; clergy in five states; and attorneys in three states.
Twenty- two states mandate "any person" to report.525

New York State

6.7.8 A substantial number of professionals are mandated to report: physician, medical examiner,
dentist, optometrist, podiatrist, intern, registered nurse, psychiatrist, social worker, peace officer,
police officer, surgeon, coroner, osteopath, chiropractor, resident psychologist, dental hygienist,
school official, day care centre worker, mental health professional, christian scientist practitioner,
hospital personnel engaged in the admission, examination, care or treatment of persons, employee
or volunteer in a residential care facility, providers of family or group family day care, any other
child care or foster care worker, district attorney or assistant district attorney, investigator
employed in the office of the district attorney or other law enforcement official.526

C. Request for Comment 3 in Discussion Paper 70

6.7.9 In Discussion Paper 70 specific comment was requested527 on the possible improvement
of section 4 of the Act and/or its incorporation in section 42 of the Child Care Act 74 of 1983.

D. Submissions on Request for Comment 3 in Discussion Paper 70

525
Van Dokkum 1996 Acta Juridica 172 fn 39.
526
Van Dokkum 1996 Acta Juridica 172 fn 39.
527
Discussion Paper 70 paragraph 4.7.11.
 195

Section 4 should not be subsumed by the Child Care Act

6.7.10 The Laws and Administration Committee of the General Council of the Bar points out
that child abuse may form part of domestic violence. Child abuse warrant such extreme measures
that any overlapping with the Child Care Act is of lesser importance. The fact that mandatory
reporting in terms of section 4 of the Act is not confined to the domestic sphere is more of an
advantage than a disadvantage. The National Human Rights Trust also holds the view that abuse
of children is part of the domestic violence syndrome. The Gauteng Members of the ALS Family
Law Standing Committee and the Centre for Criminal Justice, Pietermaritzburg agree that section
4 of the Act should not be subsumed by the Child Care Act.

Section 4 should be subsumed by the Child Care Act

6.7.11 The Magistrate, Pietermaritzburg stresses that the Child Care Act deals specifically with
the care of children. The Democratic Party desires the inclusion of penalties in the event of non-
reporting of ill-treatment. The Cape Law Society, Natal Law Society, Dr A Allan: Head of
Psycholegal Unit, University of Stellenbosch, NICRO - Western Cape and the SA National
Council for Child and Family Welfare endorse the incorporation of section 4 of the Act in the
Child Care Act.

Suggestions for improvement

6.7.12 M Horton suggests that the provisions in the Act and in the Child Care Act be rationalised
into a single provision. Mpumalanga Department of Health, Welfare and Gender Affairs argues
that professionals not at present included in the Act and in the Child Care Act should be included.
Various submissions under the SA National Council for Child and Family Welfare propose the
following: ensure protection of person giving a bona fide but erroneous report; include "other"
people in obligatory reporting; anybody suspecting child abuse should be made responsible to
report; include psychologists and psychiatrists; reporting by any person who has knowledge of
such aspects; include teachers; specific persons/professionals should not be stipulated; define "ill-
treatment".

E. Evaluation
 196

6.7.13 Mandatory reporting of ill-treatment of children is an effective step in the direction of

preventing, identifying and dealing with child abuse. Both section 4 of the Act and section 42 of
the Child Care Act 74 of 1983 provide for mandatory reporting. The argument that child abuse
warrants such extreme measures that any overlapping with the Child Care Act is of lesser
importance, is convincing.

6.7.14 The wording of the Child Care Amendment Act (paragraph 6.7.4 above) is endorsed,
although psychologists could be included in the list of persons obliged to report ill-treatment of
children. Having regard to the context of the legislation, specific reference should be made to a
child who has been subjected to acts of domestic violence.

6.7.15 Inclusion of “the good faith clause” will encourage reporting.528

528
See paragraph 6.7.5 above.
 197

6.8 Marital rape

A. Problem analysis

6.8.1 Section 5 of the Act reads as follows:

Notwithstanding anything to the contrary contained in any law or in the common law, a
husband may be convicted of the rape of his wife.

6.8.2 “Husband” and “wife” should be interpreted with reference to section 1(2) of the Act.529

6.8.3 Marital rape is an issue of importance in several jurisdictions. An exemption from

prosecution for rape enjoyed by a husband in respect of his wife is widely seen as discriminatory
against (married) women.530

6.8.4 Fredericks & Davids531 affirm that marital rape has been directly linked to family violence,
since it often occurs in circumstances where women are being physically abused. The exclusion
of wife rape from the definition of family violence, as has been the case prior to the Act, ignored
one of the most serious violations of a woman’s bodily integrity. However, according to the
authors, section 5 of the Act is clearly a legislative afterthought as the procedure laid down in the
Act is inappropriate in the case of marital rape. The provision belongs in the Criminal Procedure
Act 51 of 1977 since the proper forum for such a crime is the ordinary criminal courts.

6.8.5 Fedler532 laments that no real changes which would encourage women to lay charges of
marital rape have been made by the mere abolition of the common law marital rape exemption
by the Act. The private locus of domestic violence means that proof of sexual assault or rape by
a partner is very difficult to obtain. Given the fact that our criminal law has been criticised for its

529
M Jansen “Verkragting Binne Huweliksverband: Die Laaste Spykers in die Doodkis”
1994 SACJ 78 91.
530
Sinclair 133.
531
Fredericks & Davids 487.
532
Fedler 1995 SALJ 245.
 198

treatment of rape survivors who have been raped by strangers, women who have been raped by
their husbands are in an invidious position.

6.8.6 Sinclair533 maintains that two concerns about marital rape remain, namely sentencing and
the definition of rape itself. On sentencing, the abolition of the marital rape exemption could be
rendered virtually nugatory if the judiciary fails to respond appropriately to the legislative
acknowledgement of the seriousness of this offence. On the definition, she states that there are
feminists who contend that the focus should be shifted away from the issue of lack of consent on
the part of the victim to the coercion employed by the assailant. Other points of criticism against
the traditional definition of rape are that the definition -
(a) is too narrow because it relates only to one form of sexual intercourse;
(b) demonstrates a male bias in that it constructs rape as a sexual act while the
available evidence suggests that rape victims do not view rape as a sexual act but
as a form of violence; and
(c) reflects the ideology of male proprietary interests in female sexuality.

6.8.7 Human Rights Watch534 recognises the marital rape provision as an important reform, but
claims that the difference that it will make in practice to women in abusive marriages is probably
limited. Because marital rape is most likely to occur in the home, proof of rape by a husband is
difficult to obtain.

B. Recommendation 21 in Discussion Paper 70

6.8.8 In Discussion Paper 70 it was recommended535 that the legislation incorporate section 5
of the Act (rape of wife by her husband) in its present form until such time as the law of rape is
reviewed.

533
Sinclair 436.
534
Human Rights Watch 107.
535
Discussion Paper 70 paragraph 4.8.11.
 199

C. Submissions on Recommendation 21 in Discussion Paper 70

6.8.9 The Department of Justice Gender Unit states that it is aware of high levels of
dissatisfaction with the laws and procedures relating to sexual assault in South Africa and
recommends that these issues be investigated properly so that informed public debate can ensue.
S Kottler recommends that the definition of rape be extended beyond penile-vaginal penetration
to include forced sodomy, fellatio and penetration of the vagina or anus with fists and/or other
foreign objects. She also recommends that the police improve their data collection methods with
computer systems to provide up-to-date statistics on marital rape and to protect the victims of
marital rape who may not have a copy of the interdict with them when reporting a breach of the
interdict. Tshwaranang Legal Advocacy Centre suggests that the recommendation does not go
far enough, and that the law of rape needs to be substantively reviewed. The recommendation
needs to ensure that when women do lay charges of rape against their husbands, they will not be
hampered in getting a conviction by the “consent” defence. It is suggested that the
recommendation include provisions to the effect that evidence of past sexual history between
husband and wife be considered irrelevant for the purposes of conviction and that a history of
domestic violence between husband and wife be considered relevant for the purposes of a
conviction.

6.8.10 Recommendation 21 is endorsed by:

Cape Law Society
Magistrate: Pietermaritzburg
Magistrate: Pretoria North
M Horton
NICRO, Western Cape
SA National Council for Child and Family Welfare
 200

D. Evaluation

6.8.11 Cognisance is taken of the concerns about marital rape. It is to be noted, however, that
many of the points of criticism apply not only to marital rape, but also to rape and sexual offences
in general.

6.8.12 The judgement of S v J536 in which the cautionary rule was addressed by the Supreme
Court of Appeal is to be commended. Problematic areas relating to the sexual offences are
investigated separately by the Law Commission (Project 107: Sexual offences).

536
1998 (2) SA 984 (SCA).
 201

6.9 Consultation between Magistrate / Judge and Family Advocate

A. Problem analysis

6.9.1 The Act contains no provision directing a presiding officer to consult with the Family
Advocate prior to granting an interdict in cases which have a bearing on the interests of minor
children.

B. Recommendation 22 in Discussion Paper 70

6.9.2 In Discussion Paper 70 it was recommended537 that the Department of Justice investigate
the need for consultation between the Magistrate/Judge and Family Advocate in domestic violence
proceedings.

C. Submissions on Recommendation 22 in Discussion Paper 70

6.9.3 The Magistrate: Pietermaritzburg points out that though it would be helpful for
magistrates and family advocates to consult in these matters, this recommendation is wholly
impractical, since family advocates have only been appointed in the bigger centres such as Durban,
Cape Town, Johannesburg and Pretoria. He holds the view that current initiatives to set up Victim
Support Units will suffice to protect the interests of the applicant and any children involved. The
Natal Law Society suggests that inter-sectoral co-operation with NGO’s would also be beneficial.
Various social workers from the SA National Council for Child and Family Welfare comment
that family advocates are not available to rural communities. Local child welfare societies should
also be involved, especially if they have a long-term history with the children. Some social
workers express reservations that this recommendation will lead to delays in the granting of
interdicts.

6.9.4 Recommendation 22 is endorsed by:

537
Discussion Paper 70 paragraph 4.9.5.
 202

Cape Law Society

Magistrate: Pretoria North
NICRO, Western Cape
Women’s Lobby

D. Evaluation

6.9.5 There appears to be a need for interaction between the court and the Family Advocate
where children are involved in domestic violence proceedings. However, a proviso that the court
first confer with the Family Advocate before granting a protection order, might cause delays that
will thwart the granting of urgent relief. The Department of Justice should therefore address this
problem on an administrative level.
 203

6.10 Renaming the Act

A. Comparative survey of laws

England
6.10.1 The Law Commission (England)538 proposes a “Family Homes and Domestic Violence
Bill”.

Australia
The Australian Capital Territory / Northern Territory / South Australia
6.10.2 “Domestic Violence Act”.

Queensland
6.10.3 “Domestic Violence (Family Protection) Act”.

Canada
Saskatchewan
6.10.4 “Victims of Domestic Violence Act”.

New Zealand
6.10.5 “Domestic Violence Act”.

USA
6.10.6 The National Council of Juvenile and Family Court Judges drafted a “Model Code on
Domestic and Family Violence”.

Minnesota
6.10.7 “Domestic Abuse Act”.

Pennsylvania

538
Law Com. No. 207 62.
 204

6.10.8 “Protection from Abuse Act”.

New Jersey
6.10.9 “Prevention of Domestic Violence Act”.

B. Recommendation 23 in Discussion Paper 70

6.10.8 In Discussion Paper 70 it was recommended539 that the legislation be called the "Domestic
Violence Act".

C. Submissions on Recommendation 23 in Discussion Paper 70

6.10.9 UNISA Family Law Lecturers point out that the title of the Afrikaans version of the Act
should be carefully selected as the current Afrikaans title “Wet op Voorkoming van Gesinsweld”,
limits the ambit of the Act.

6.10.10 Other suggestions are:

Centre for Criminal Justice, Pietermaritzburg: “The Gender Relations and Domestic Violence
Act”.
Natal Law Society: “The Prevention of Domestic Violence Act”.
SA National Council for Child and Family Welfare: “Violence Against Family or Significant
Other Act”; “Interpersonal Violence Act”; “Spousal Abuse Act”.
UNISA Health Psychology Unit: “The Domestic Violence Criminal and Public Health Act”.

6.10.11 Recommendation 23 in Discussion Paper 70 is endorsed by:

Cape Law Society
Magistrate: Pietermaritzburg
Magistrate: Pretoria North
M Horton
NICRO, Western Cape

539
Discussion Paper 70 paragraph 4.10.10.
 205

D. Evaluation

6.10.12 In paragraph 5.2.39 above it is argued that the protective ambit of the legislation
be extended to a broad range of persons that does not fit into a narrow perspective of “family”.
The endeavour is to limit the scope of the legislation to the domestic realm. “Domestic Violence
Act” appears to be an encompassing title.
 206

6.11 Criminal justice response to domestic violence

A. Problem analysis

6.11.1 Murray & Kaganas540 draw attention to the view that the Act’s approach and underlying
philosophy (of dealing with family violence outside criminal courts) are considered by some to
undermine its overall value. Commentators have argued that the emphasis on civil remedies in the
Act, and its reference to “family violence”, underscores the impression held by many people, that
violence in the home or between family members is less serious than assaults that take place in
other circumstances.

6.11.2 Fredericks & Davids541 observe that a critical issue in obtaining an interdict in terms of the
Act is that the burden to initiate the process lies with the victim. The procedure places too much
reliance on the initiative of the complainant in reporting and monitoring the abuse - it treats the
victim as an equal when the reality is that the abuse is the result of a lack of equality. Where the
interdict causes the husband to retaliate and reassert his challenged “authority”, it can hardly be
seen as an effective tool to prevent future violence.

6.11.3 They claim542 that empirical evidence in the United States has shown that arrest was the
most effective mechanism to prevent further abuse. Research done in the United Kingdom
indicates that the enforcement of restraining orders was not effective since only a small percentage
of women believed that they offered meaningful protection. In view of this and the practical
problems experienced, Fredericks & Davids question whether an interdict granted in terms of the
Act is an appropriate mechanism to counter abuse. Where there are no protective provisions
which allow for crisis intervention, such as providing for physical refuge or shelter from the

540
C Murray & F Kaganas “Law and Women’s Rights in South Africa: An Overview” in
Murray Et Al Gender and the New South African Legal Order Kenwyn: Juta 1994 125.
541
Fredericks & Davids 1995 TSAR 488.
542
Fredericks & Davids 1995 TSAR 488.
 207

violent situation, counselling and rights informational services, an interdict may leave little comfort
for abused women.543

6.11.4 It is further pointed out544 that even if the abuser is arrested during the second stage of the
procedure, it is not for the criminal offence (that is the abuse), but for violating the authority of
the court that granted the order. Arrests should relate to crimes against women, not to the
flouting of the authority of the courts.

6.11.5 Novitz545 observes that one obvious concern is that the Act may have effectively diverted
attention away from arrest of abusers at the scene of a violent domestic incident, or the laying of
criminal charges. She asserts546 that the criminal law probably remains one of the most effective
ways of addressing cases of family violence. A criminal charge has certain advantages, such as
few financial costs for the complainant, the deterrent effect of a criminal conviction and the fact
that sentences can be precisely tailored to the particular case.

6.11.6 Clark547 refers to the argument that criminal prosecution is the only effective approach to
domestic abuse, particularly that perpetrated against women, and that protection orders, now
matter how well-intentioned, only serve to decriminalise the problem. The main basis for this
argument is that the matter should be taken out of the hands of the victim so as to destroy the
sacred public/private divide which has constituted a major barrier to the prosecution of such cases.
However, according to Clark, despite these arguments, there are advantages to be secured by a
specific protection order for those suffering family violence, although one remedy cannot be a
panacea to these problems.

6.11.7 Sinclair548 notes that the effectiveness and appropriateness of any criminal sanction in the
context of matrimonial violence has been questioned, inter alia because victims are loath to report

543
Fredericks & Davids 1995 TSAR 489.
544
Fredericks & Davids 1995 TSAR 489.
545
Novitz 44.
546
Novitz 26.
547
Clark 1996 SAJHR 592.
548
Sinclair 424 fn 31.
 208

the matter or press charges. The emotional strain which prosecution will put on the victim, the
financial loss which would be suffered if the offender were to be incarcerated and/or were to lose
his job, the fear of reprisals if the offender were released on bail pending trial, the fact that
imposition of prison sentence would, usually, offer only temporary respite, and the unhelpful
attitude and ineffective approach of the police have, inter alia, been cited as reasons for the
widespread reluctance to press charges. The criminal law is further considered to be an
inappropriate and inadequate tool for the resolution of the problem of matrimonial violence
because it places the emphasis on the offender, not on the victim. It merely punishes the offender
without seeking to solve the underlying problem. The punishment imposed may also be too
lenient to serve any real purpose.

6.11.8 Bonthuys549 affirms the recognition that domestic violence affects various areas of the law.
A legal system may respond directly to violence against women in different ways, using the
criminal law, and special protective measures such as interdicts. Violence may also be an
important, although indirect, factor in other areas of law such as the law of delict, evidence, and
family law.

B. Comparative survey of laws

England
6.11.9 The Law Commission (England)550 points out that criminal law is primarily intended to
punish the offender. However, most victims of domestic violence are not primarily interested in
punishment. They want the violence to stop and they want protection. It is argued551 that civil
remedies are prospective and positive: their main is to regulate and improve matters for the
future, rather than to make judgments upon or punish past behaviour. Unlike criminal
proceedings, they can also provide an immediate means of evicting the perpetrator from the home.
This is often the only effective method of stopping abuse. If the perpetrator is arrested and
charged with a criminal offence, he will usually be released on bail, albeit with conditions

549
Bonthuys 1997 SALJ 384.
550
Law Com. No. 207 paragraph 2.9.
551
Law Com. No. 207 paragraph 2.11.
 209

regulating his conduct, until the trial. Unless there are serious injuries, he is likely to receive a
fairly short sentence and be released, whereupon he is free to return home. The consequences of
criminal sanctions in domestic cases bear no relation to the future needs of the victim.

6.11.10 Because civil remedies are not in general designed to handle violence and other
forms of extreme behaviour normally dealt with under the criminal law, it has been found
necessary to develop certain specialised quasi-criminal machinery to make the remedies properly
effective for the purposes they are intended to serve.

Australia
The Australian Capital Territory
6.11.11 The Community Law Reform Committee552 contends that although breach of a
protection order is a criminal offence this means that generally two criminal acts will have been
committed before the offender is held criminally accountable. Civil processes are primarily
remedial and preventative and consequently, civil processes are not a substitute in law or effect
for criminal charges.

6.11.12 The basic thrust of revising the criminal justice response to domestic violence is
to work to ensure that domestic violence cases are not screened out of the criminal justice system
and that the system holds offenders of criminal behaviour committed in the context of domestic
violence, accountable to the same extent as offenders of other similar criminal offences.553
According to the Community Law Reform Committee,554 research indicates that bringing domestic
violence cases, which involve breach of the criminal law, into the criminal justice system generally
results in a substantial reduction in the violence. It is recognised that to effectively deal with
domestic violence in a criminal justice context, the special dynamics of the violence and the special

552
The Community Law Reform Committee of the Australian Capital Territory Report on
Domestic Violence Report No 9 Canberra 1995 paragraph 119.
553
CLRC No 9 paragraph 189.
554
CLRC No 9 paragraph 191.
 210

vulnerability of the victim have to be understood and taken into account in procedures relating to
police, prosecution and court practice.555

C. Recommendation 24 in Discussion Paper 70

6.11.13 In Discussion Paper 70 it was recommended that the Department of Justice and
the Department of Safety and Security initiate programmes aimed at ensuring that -
(a) the criminality of domestic violence is recognised;
(b) the criminal justice system holds offenders accountable for the criminal behaviour;
and
(c) procedures relating to police, prosecution and court practice take account of the
special dynamics of domestic violence and the special vulnerability of the victim.

D. Submissions on Recommendation 24 in Discussion Paper 70

6.11.14 UWC Community Law Centre recommends that when the court hears the
contravention of an interdict, it must transfer allegations of conduct that constitute a contravention
to the criminal division for possible prosecution on a charge of a domestic violence offence. It is
argued that experience has shown that criminal prosecutions for domestic violence are not often
instituted in South Africa, and that the existing substantive offences do not cover all the
manifestations of such violence. Because the complainant in criminal proceedings is subject to
considerable gender disadvantage and the focus on the proceedings is for the state to secure a
conviction, the substance and procedure of the criminal law that regulate domestic violence ought
to be reformulated to eliminate this gender disadvantage.

6.11.15 One suggestion is the enactment of a Domestic Violence Offences Act. In this Act,
offences such as assault, intimidation, harassment and stalking would all be defined as substantive

555
CLRC No 9 paragraph 194.
 211

offences. A further submission is that the prosecuting authority has a constitutional duty to
consider the broad interests of justice in making decisions concerning the institution of criminal
proceedings in domestic violence cases. In addition, there ought to be a duty on the prosecuting
authority to provide reasons for a refusal to institute criminal proceedings and a survivor of
domestic violence should not be compelled to testify against the accused if she does not wish the
criminal proceedings to proceed. The Centre also argues that South Africa should adopt the
German Nebenklagerin procedure in terms of which the complainant is empowered as an
ancillary prosecutor. In this way she is given the right to -
(a) inspect records with the assistance of her legal representative;
(b) request the recusal of a judge;
(c) to object to expert witnesses;
(d) give a statement;
(e) ask questions; and
(f) apply to have evidence adduced.
It is argued that the cumulative effect of the Nebenklagerin procedure is the elimination of gender
inequality and secondary victimization of the complainant.

6.11.16 The Centre states that in order to ensure the criminality of domestic violence, the
respondent who contravenes an interdict must be charged with contempt of court and a domestic
violence offence. This has implications for arrest proceedings, bail, decisions to prosecute, the
procedure, sentencing and appeal.

6.11.17 Recommendation 24 in Discussion Paper 70 is endorsed by:

Cape Law Society
Magistrate: Pietermaritzburg
Magistrate: Pretoria North
Natal Law Society
National Human Rights Trust
NICRO, Western Cape
SA National Council for Child and Family Welfare
UNISA Health Psychology Unit
 212

E. Evaluation

6.11.18 An effective legal response to domestic violence involves both a civil remedy
(protection order procedure) and a criminal law response. Civil processes should not be seen as
a substitute for criminal charges and vice versa. As can be inferred from the literature and
comparative survey of laws discussed above, both approaches have certain advantages and victims
of domestic violence should have the benefit of both.

6.11.19 Since the Law Commission's investigation focussed primarily on reviewing the
present Prevention of Family Violence Act, 1993, and not the criminal justice response to
domestic violence, the formulation of a new offence of domestic violence has not been considered.
The Research Paper does, however, contain provisions that will assist the victim of domestic
violence in terms of the criminal law response.

6.11.20 In paragraph 6.1.22 above it is therefore suggested that the contravention of the
conditions of a protection order granted in terms of domestic violence legislation be an offence
which is prosecuted in the criminal court. The respondent accordingly becomes an accused who
is held criminally accountable. Although the criminal accountability is not in consequence of the
criminal act or acts that induced the applicant to apply for a protection order, the procedure does
bring the domestic violence case within the criminal justice system, thus no longer making it a safe
haven for offenders shielding them from real prosecution and the full extent of criminal procedure.
It is also argued that the penalties for breach of the protection order be increased (paragraph
5.12.20 above).

6.11.21 Further proposals relate to the placing of certain duties on the SAPS at the scene
of domestic violence (paragraph 7.2.7 below) and arrest of the perpetrator of domestic violence
without a warrant (paragraph 7.3.6 below).

6.11.22 Consideration has also been given to the arguments in favour of mandatory
prosecution for offences committed in the context of domestic violence. Since the applicant is a
crucial witness whose autonomy ought to be preserved, all criminal proceedings should be
 213

initiated by the applicant. However, the legislation should encourage the applicant to lay charges
at all stages of the protection order proceedings.
 214

6.12 Victim support

A. Problem analysis

6.12.1 Fedler556 concludes as follows:

. . . legislative tinkering by lawmakers unexposed to the brutal mundaneness of abused
people’s lives can produce little more than a law to appease the conscience that recoils
from the horror of cruelty to women and children. It is not sympathy that battered women
seek. Nor is it their goal to become the symbol of the extent to which a particular
government cares for the disempowered. They need safety. They need maintenance. They
need a roof over their heads. They need work. They need legal advice that is responsive
to the unique circumstances in which they find themselves. A commitment to ending
violence in the home must deliver to women the means of survival. Only then will
legislative improvements to the Prevention of Family Violence Act be a measure of the
extent to which women’s lives are valued.

6.12.2 To Fredericks & Davids557 it appears to be imperative that the state proffers a measure of
assistance to complainants, particularly when a return to the common home is fraught with danger
or when they are left homeless when a relationship has been terminated. They contend that an
effective measure of supporting victims of wife abuse is the provision of shelters558 that are
integrated with other programmes involving counselling and legal services. Shelters may
therefore, in addition to providing temporary housing, serve as a mechanism to inform abused
women of the options of criminal prosecutions, restraining orders or other alternatives. This will
not only heighten abused women’s awareness of services and facilities but also facilitate their
access to legal and related support systems. Without any other form of intervention, an interdict
order granted on its own will not achieve the desired result.559

556
Fedler 1995 SALJ 251.
557
Fredericks & Davids 1995 TSAR 489 - 490.
558
The authors point out that there are no state-funded shelters for abused women in South
Africa.
559
The need for more shelters is also emphasised by Clark 1996 SAJHR 600 - 601 who
points out that these services are critically important to domestic violence survivors.
 215

6.12.3 Human Rights Watch560 emphasises that government assistance to battered women can
only succeed through a concerted and coordinated effort on the part of a number of different
departments. There is a need for agreed strategies for response and referral at national level,
coupled with direct funding to provide shelters, welfare payments, health services, legal assistance,
counselling services and education for survivors of abuse.

6.12.4 Bonthuys561argues for due acknowledgement to the fact that changing the law is but one
aspect of solving the problem of domestic violence. If we treat individual victims of domestic
violence as if they have the same economic and social power as the perpetrators, we fail to
respond to the greater part of their needs. Women who are the victims of domestic violence often
also lack resources such as money to maintain themselves and their children, housing, education
to enable them to find employment, and the self-confidence to enable them to escape from abusive
relationships. Changing the law will never be enough as long as women cannot in practice afford
to leave abusive situations.

B. Submission on victim support

6.12.5 UWC Community Law Centre suggests that the National Network on Violence Against
Women should be responsible for monitoring victim support programmes.

C. Evaluation

6.12.6 There is a clear need for support services offered to victims of domestic violence.
Domestic violence legislation should be fortified by the provision of shelters and advice and
referral services linking victims of domestic violence with appropriate support systems. In this
regard it is encouraging to note that a victim support movement is gaining momentum in South
Africa. A national programme on victim empowerment and support is an integral part of the
National Crime Prevention Strategy. The Commission is also a stakeholder in the national victim
empowerment programme since the Project Committee on Sentencing has identified the need to

560
Human Rights Watch 88.
561
Bonthuys 1997 SALJ 385.
 216

review legislation pertaining to victims of crime as part of its investigation into all aspects related
to sentencing.562

562
Issue Paper 7 on Restorative Justice (compensation for victims of crime and victim
empowerment) was published.
 217

7. CONCERNS NOT DEALT WITH IN DISCUSSION PAPER 70 ON DOMESTIC

VIOLENCE

7.1 Preamble in domestic violence legislation

A. Problem analysis

7.1.1 Clark563 argues that a valuable ideological function could be served by a section stating the
objects of the legislation clearly and comprehensively: objects such as the reduction and
prevention of violence in abusive relationships, the recognition that domestic violence is
unacceptable behaviour and the need for adequate legal protection for its victims. This section
could also set out how the legislation aims to achieve its object, for example, by empowering the
court to make orders to protect victims, by ensuring that access to court is speedy and inexpensive
as possible and by providing more effective sanctions.

B. Comparative survey of laws

USA
New Jersey
7.1.2 The New Jersey Prevention of Domestic Violence Act of 1991564 contains a
comprehensive “findings and declarations” section which reads as follows:

The Legislature finds and declares that domestic violence is a serious crime against
society; that there are thousands of persons in this State who are regularly beaten, tortured
and in some cases even killed by their spouses or cohabitants; that a significant number of
women who are assaulted are pregnant; that victims of domestic violence come from all
social and economic backgrounds and ethnic groups; that there is a positive correlation
between spousal abuse and child abuse; and that children, even when they are not
themselves physically assaulted, suffer deep and lasting emotional effects from exposure
to domestic violence. It is therefore, the intent of the Legislature to assure the victims of
domestic violence the maximum protection from abuse the law can provide.

563
Clark 1996 SAJHR 598.
564
2C:25-18, 2.
 218

The Legislature further finds and declares that the health and welfare of some of its most
vulnerable citizens, the elderly and disabled, are at risk because of incidents of reported
and unreported domestic violence, abuse and neglect which are known to include acts
which victimize the elderly and disabled emotionally, psychologically, physically and
financially; because of age, disabilities or infirmities, this group of citizens frequently must
rely on the aid and support of others; while the institutionalized elderly are protected
under P.L.1977, c.239 (C.52:27G-1 et seq.), elderly and disabled adults in
noninstitutionalized or community settings may find themselves victimized by family
members or others upon whom they feel compelled to depend.

The Legislature further finds and declares that violence against the elderly and disabled,
including criminal neglect of the elderly and disabled under section 1 of P.L.1989, c.23
(C.2C:24-8), must be recognized and addressed on an equal basis as violence against
spouses and children in order to fulfill our responsibility as a society to protect those who
are less able to protect themselves.

The Legislature further finds and declares that even though many of the existing criminal
statutes are applicable to acts of domestic violence, previous societal attitudes concerning
domestic violence have affected the response of our law enforcement and judicial systems,
resulting in these acts receiving different treatment from similar crimes when they occur
in a domestic context. The Legislature finds that battered adults presently experience
substantial difficulty in gaining access to protection from the judicial system, particularly
due to that system's inability to generate a prompt response in an emergency situation.

It is the intent of the Legislature to stress that the primary duty of a law enforcement
officer when responding to a domestic violence call is to enforce the laws allegedly
violated and to protect the victim. Further, it is the responsibility of the courts to protect
victims of violence that occurs in a family or family-like setting by providing access to
both emergent and long-term civil and criminal remedies and sanctions, and by ordering
those remedies and sanctions that are available to assure the safety of the victims and the
public. To that end, the Legislature encourages the training of all police and judicial
personnel in the procedures and enforcement of this act, and about the social and
psychological context in which domestic violence occurs; and it further encourages the
broad application of the remedies available under this act in the civil and criminal courts
of this State. It is further intended that the official response to domestic violence shall
communicate the attitude that violent behaviour will not be excused or tolerated, and shall
make clear the fact that the existing criminal laws and civil remedies created under this act
will be enforced without regard to the fact that the violence grows out of a domestic
situation.

C. Evaluation
 219

7.1.3 The gendered dimensions of domestic violence cannot adequately be captured in the
gender neutral text of legislation. The preamble could serve as a framing devise to contextualize
domestic violence legislation and to declare the attitude of the legislature that domestic violence
will not be tolerated in a society based on freedom, equality and dignity.
 220

7.2 Duty to inform victim of rights

D. Problem analysis

7.2. Clark565 asserts that it is vital that the police are instructed about the availability of
interdicts so that they can inform a victim of her rights in a time of crisis.

E. Comparative survey of laws

USA
Model Code on Domestic and Family Violence
7.2.2 The law enforcement officer shall give a written notice to the adult victim in his or her
native language substantially as follows:566
If you are the victim of domestic or family violence and you believe that law enforcement
protection is needed for your physical safety, you have the right to request that the officer
assist in providing for your safety, including asking for an emergency order for protection.
You may also request that the officer assist you in obtaining your essential personal effects
and locating and taking you to a safe place, including but not limited to a designated
meeting place for a shelter, a family member's or a friend's residence, or a similar place of
safety. If you are in need of medical treatment, you have the right to request that the
officer assist you in obtaining medical treatment. You may request a copy of the report
at no cost from the law enforcement department.

You may ask the prosecuting attorney to file a criminal complaint. You also have the right
to file a petition in insert name of court requesting an order for protection from domestic
or family violence which could include any of the following orders:
(a) An order enjoining your abuser from threatening to commit or committing further
acts of domestic or family violence;
(b) An order prohibiting your abuser from harassing, annoying, telephoning,
contacting or otherwise communicating with you, directly or indirectly;
(c) An order removing your abuser from your residence;
(d) An order directing your abuser to stay away from your residence, school, place of
employment, or any other specified place frequented by you and another family or
household member;
(e) An order prohibiting your abuser from using or possessing any firearm or other
weapon specified by the court;

565
Clark 1996 SAJHR 599.
566
Model Code, section 204(2).
 221

(f) An order granting you possession and use of the automobile and other essential
personal effects;
(g) An order granting you custody of your child or children;
(h) An order denying your abuser visitation;
(i) An order specifying arrangements for visitation, including requiring supervised
visitation;
(j) An order requiring your abuser to pay certain costs and fees, such as rent or
mortgage payments, child support payments, medical expenses, expenses for
shelter, court costs, and attorney's fees.

The forms you need to obtain an order for protection are available from the insert clerk
of the court or other appropriate person. The resources available in this community for
information relating to domestic and family violence, treatment of injuries, and places of
safety and shelters are: insert list and hotline numbers. You also have the right to seek
reimbursement for losses suffered as a result of the abuse, including medical and moving
expenses, loss of earnings or support, and other expenses for injuries sustained and
damage to your property . . .

7.2.3 In most jurisdictions, law enforcement officials are responsible for reading key terms of
the order to the defendant. Reading the order out loud precludes the defendant from stating that
he could not read and understand it.567

New Jersey
7.2.4 A law enforcement officer shall disseminate and explain to the victim the following
notice:568
You have the right to go to court to get an order called a temporary restraining order, also
called a TRO, which may protect you from more abuse by your attacker. The officer who
handed you this card can tell you how to get a TRO.

The kinds of things a judge can order in a TRO may include:

(1) That your attacker is temporarily forbidden from entering the home you live in;
(2) That your attacker is temporarily forbidden from having contact with you or your
relatives;
(3) That your attacker is temporarily forbidden from bothering you at work;
(4) That your attacker has to pay temporary child support or support for you;
(5) That you be given temporary custody of you children;
(6) That your attacker pay you back any money you have to spend for medical
treatment or repairs because of the violence. There are other things the court can

567
State Responses 86.
568
New Jersey Prevention of Domestic Violence Act of 1991, 2C:25-23 7.
 222

order, and the court clerk will explain the procedure to you and will help you to
fill out the papers for a TRO.

You also have the right to file a criminal complaint against your attacker. The police
officer who gave you this paper will tell you how to file a criminal complaint.

On weekends, holidays and other times when the courts are closed, you still have a right
to get a TRO. The police officer who gave you this paper can help you get in touch with
a judge who can get you a TRO.

Pennsylvania
7.2.5 Each law enforcement agency shall provide the abused person with an oral and written
notice.569 The statements to be included in the written notice are similar to the statements required
by New Jersey law.

Missouri
7.2.6 The officer at a scene of an alleged incident of abuse shall inform the abused party of
available judicial remedies for relief from adult abuse.570 Clerks shall explain to litigants not
represented by counsel the procedures for filing all forms and pleadings necessary for the
presentation of their petition to the court. The performance of these duties shall not constitute
the practice of law.571

F. Evaluation

7.2.7 Most victims are ignorant as to their rights. At certain key moments in the domestic
violence situation, the victim will encounter law enforcement agents, such as a police officer, or
the clerk of the court. These law enforcement agents should have a duty to inform the victim of
her rights to obtain a protection order as well as to lay criminal charges. This obligation will fortify
the relationship between the public and the criminal justice system, in that the law enforcement
agents will be regarded with less suspicion.

569
Pennsylvania Protection from Abuse Act, section 6105(b).
570
Missouri Revised Statutes Chapter 455, section 455.080.4.
571
Missouri Revised Statutes Chapter 455, section 455.025.
 223

7.3 Arrest without warrant

A. Problem analysis

7.3.1 The situation where a victim of domestic violence seeks urgent assistance from the police
in the absence of a protection order needs to be addressed.

7.3.2 In terms of section 40(1)(a) and (b) of the Criminal Procedure Act 51 of 1977 a peace
officer may without warrant arrest any person who commits or attempts to commit any offence
in his presence; or whom he reasonably suspects of having committed an offence referred to in
Schedule 1. Schedule 1 refers to, inter alia, assault, when a dangerous wound is inflicted. The
offence of common assault is not a First Schedule offence. This creates the dilemma that when
the SAPS attend to a common assault in a domestic violence situation they can, apart from taking
a statement, do nothing to protect the victim. The victim is therefore left to the mercy of the
abuser.

7.3.3 Workshops have highlighted the need experienced by SAPS officers called out to scenes
of domestic violence to safeguard victims by arresting abusers suspected of committing common
assault. It appears that most domestic assaults are classified as common assaults.

B. Comparative survey of laws

USA
Missouri
7.3.4 When a law enforcement officer has probable cause to believe a party has committed a
violation of law amounting to abuse or assault against a family or household member, the officer
may arrest the offending party whether or not the violation occurred in the presence of the
arresting officer.572

New Jersey

572
Missouri Revised Statutes Chapter 455, section 455.085.1.
 224

7.3.5 A law enforcement officer may arrest a person where there is probable cause to believe
that an act of domestic violence has been committed.573

C. Evaluation

7.3.6 Apart from the situation where the applicant reports a breach of the protection order, the
SAPS should be empowered to arrest an abuser without a warrant where the circumstances justify
such arrest. It is submitted that the SAPS should be empowered to arrest the abuser when they
arrive at the scene of an incident of domestic violence after an attack on the victim and reasonably
suspect that an offence containing an element of physical violence has been committed by the
abuser.

573
New Jersey Prevention of Domestic Violence Act of 1991, 2C:25-21 5b.
 225

7.4 Confidentiality of applicant’s address

A. Problem analysis

7.4.1 The Act contains no provisions in respect of confidentiality. This implies that the
respondent will always be able to ascertain where the applicant is staying, thus compromising the
applicant’s safety.

B. Comparative survey of laws

Canada
Saskatchewan
7.4.2 The victim’s address shall be kept confidential at the request of the victim or a person
acting on the victim’s behalf.574

Alberta
7.4.3 The Alberta Law Reform Institute575 recommends that the claimant’s address be kept
confidential unless the claimant consents to the giving of the address.

USA
Missouri
7.4.4 A petitioner shall not be required to reveal any current address or place of residence
except to the court in camera for the purpose of determining jurisdiction. The petitioner may be
required to provide a mailing address unless the petitioner alleges that he or she would be
endangered by such disclosure.576

574
Saskatchewan Victims of Domestic Violence Act S.S. 1994,c. V-6.02, section 9(1).
575
ALRI Report No 74 89.
576
Missouri Revised Statutes Chapter 455, section 455.030 3.
 226

Pennsylvania
7.4.5 The court may consider whether the plaintiff is endangered by disclosure of the permanent
or temporary address of the plaintiff or minor children.577

Kentucky
7.4.6 The court, when issuing an emergency protective order, shall order the omission or
deletion of the petitioner's address, and the address of any minor children from any documents to
be made available to the public, or to the person who engaged in the acts of domestic violence.578

C. Evaluation

7.4.7 Confidentiality of the applicant's address may be very important to the applicant's safety
since the abuser may follow her from destination to destination, making her life intolerable. Many
women fleeing abusive relationships go into hiding, either at the home of a friend, family member
or shelter. It is imperative that an applicant be able to retain the confidentiality of her address in
this period when her life may be in danger. However, in exercising this choice to retain the
confidentiality of her address, the applicant will not be able to request the court to make an order
preventing the respondent from entering the residence, as a physical address will need to be
provided for this order to be effective.

577
Pennsylvania Protection from Abuse Act, section 6112.
578
Kentucky Revised Statutes, section 403.770(1).
 227

7.5 Seizure of arms and dangerous weapons

A. Problem analysis

7.5.1 The Act contains no provisions regarding the seizure of arms and dangerous weapons used
or used to threaten in a domestic violence situation. Many view the need for removal of
dangerous weapons from situations of domestic violence to be self-evident.579

7.5.2 Section 11 of the Arms and Ammunition Act 75 of 1969 provides, inter alia, as follows:

11 Declaration of persons by Commissioner to be unfit to possess arms

(1) If the Commissioner is of the opinion that on the ground of information contained in
a statement made under oath, other than such a statement made by the person against
whom action in terms of this section is contemplated, there is reason to believe that any
person is a person-

(b) who has threatened or expressed the intention to kill or injure himself or any other
person by means of an arm; or
...
(c) whose possession of an arm is not in the interest of that person or any other person
as a result of his mental condition, his inclination to violence, whether an arm was used
in the violence or not, or his dependence on intoxicating liquor or a drug which has a
narcotic effect; or

(d) who, while in lawful possession of an arm, failed to take reasonable steps for the
safekeeping of such arm,

he may, by notice in writing delivered or tendered to such person by a policeman, call

upon such person to appear before the Commissioner at such time and place as may be
specified in the notice, in order to advance reasons why such person shall not be declared
unfit to possess any arm on any ground aforesaid so specified.

579
Submissions to the Commission.
 228

B. Comparative survey of laws

Australia
The Australian Capital Territory
7.5.3 The Community Reform Committee580 recommends that the domestic violence legislation
should provide that the court may, in addition to the making of an interim protection order, order
the seizure and detention for the period during which the order is in force, of any dangerous
weapon or restricted weapon in the respondent’s possession.

New Zealand
7.5.4 It is a standard condition of every protection order that the respondent must -
(a) not possess, or have under his or her control, any weapon;
(b) not hold a firearm licence; and
(c) surrender to a member of the Police any weapon and any firearms licence.581

Canada
Alberta
7.5.5 The need for removal of dangerous weapons is seen as arising out of the emotional
volatility and intensity of a domestic violence situation. Further, the need for removal of weapons
at the time of granting the protection order is seen to be demonstrated by evidence showing the
point of separation as the most dangerous time for a victim of abuse.582 The Alberta Law Reform
Institute583 recommends that there should be a provision that allows for seizure and storage of
firearms, where the firearms have been used, or their use has been threatened, in the abusive
activity.

580
CLRC Report 11.
581
Domestic Violence Act 86 of 1995, section 21.
582
ALRI Report for Discussion No 15 136.
583
ALRI Report 74 84.
 229

USA
Pennsylvania
7.5.6 The protection order may include ordering the defendant to temporarily relinquish
weapons which may have been used or been threatened to be used in an incident of abuse against
the plaintiff or the minor children. Subsequent to an arrest for violation of an order the police
officer shall seize all such weapons.584

New Jersey
7.5.7 A law enforcement officer who has probable cause to believe that an act of domestic
violence has been committed may seize any weapon that the officer reasonably believes would
expose the victim to a risk of serious bodily injury.585

Model Code on Domestic and Family Violence

7.5.8 A law enforcement officer shall seize all weapons that are alleged to have been involved
or threatened to be used in the commission of a crime involving domestic violence.586

C. Evaluation

7.5.9 In many cases of domestic violence, dangerous weapons are used to intimidate and
physically harm the victim. Since some victims may choose to remain with the abuser, it is
important to provide a mechanism through which arms and dangerous weapons may be seized to
remove the immediate source of danger from the victim’s environment and to make it more
difficult for the abuser to access these weapons. Most foreign jurisdictions surveyed, contain
provisions to this effect.

584
Pennsylvania Protection from Abuse Act, sections 6108.(a)(7), 6113.(b).
585
New Jersey Prevention of Domestic Violence Act of 1991, 2C:25-21 5.d.
586
Model Code, section 207(1).
 230

7.6 Notification of police station

A. Problem analysis

7.6.1 When applicants report breach of a protection order, they are often not able to produce
the original warrant of arrest, either because it has been lost or destroyed. Because the applicant
may be unknown to the police, she may encounter unwarranted obstacles in securing her safety.

7.6.2 Bonthuys587 argues for a requirement that, when a protection order is issued, local police
should be informed of the existence of such an order.

B. Comparative survey of laws

New Zealand
7.6.3 A copy of the order must be made available, without delay, to the officer in charge of the
police station nearest to where the protected person resides.588

USA
Pennsylvania
7.6.4 The Pennsylvania State Police shall establish a Statewide registry of protection orders and
shall maintain a complete and systematic record and index of all valid temporary and final court
orders of protection.589

Missouri
7.6.5 A copy of any protection order shall be issued to the local law enforcement agency.590

587
Bonthuys 1997 SALJ 386.
588
Domestic Violence Act 86 of 1995, section 88(2).
589
Pennsylvania Protection from Abuse Act, section 6105(e)(1).
590
Missouri Revised Statutes, section 455.040.3.
 231

New Jersey
7.6.6 Notice of orders issued shall be sent to the appropriate chiefs of police, members of the
State Police and any other appropriate law enforcement agency.591

C. Evaluation

7.6.7 In order to facilitate the operation of the protection order procedure and to ensure that
the SAPS are informed of members of the public within their community who are likely to be
subject to domestic violence, it is deemed necessary to direct the clerk of the court to forward a
copy of the final order and of the warrant of arrest to a police station of the applicant’s choice.
It is anticipated that this will encourage the police to participate more fully in the victim’s
protection.

591
New Jersey Prevention of Domestic Violence Act of 1991, 2C:25-28 12. n.
 232

7.7 Penalties against law enforcement agents

A. Problem analysis

7.7.1 It is argued592 that any legislation seeking to improve the position of victims of domestic
violence would be rendered toothless without the support of law enforcement agents who are to
provide information and effect prompt service of the order and arrest of an abuser who breaches
the order. Even though law enforcement agents have duties to serve the interdict and may arrest
abusers in terms of the Act, in practice, many communities have found that these duties are being
carried out with no sense of urgency or sometimes not at all. Duties imposed, without a sanction
for dereliction of those duties, has often resulted in careless attitudes by law enforcement agents
in taking the issue of domestic violence seriously.

B. Comparative survey of laws

General
7.7.2 Women, Law & Development International593 surveyed 146 respondents from different
countries. In addition to adopting gender-specific, comprehensive domestic violence legislation,
respondents felt594 that greater enforcement of existing laws would improve the situation of
domestic violence in their countries. Respondents noted that a lack of faith in the legal system
and pressure from legal officials were major factors influencing women not to file domestic
violence complaints. Too often women who try to access the courts are impeded by the ignorance
and hostility of the very officials to whom they must complain. Survey responses advocated for
strong penalties for officials who do not enforce existing laws regarding domestic violence or do
not follow proper procedures and protocols for the enforcement of these laws.

592
Submissions by members of the Law Commission Project Committee on Domestic
Violence.
593
State Responses 91.
594
State Responses 98-99.
 233

7.7.3 It is recommended595 that governments develop and enforce penalties against officials who
do not follow proper procedures and protocols for the enforcement of laws in cases of domestic
violence or for actions contrary to the provisions and principles in domestic violence legislation.

C. Evaluation

7.7.4 Three crucial stages in the applicant’s encounter with the legal system which are integral
to the victim’s safety are embodied in previous discussions:

* A duty on the SAPS to inform the victim of her rights. The legislation cannot
operate effectively unless applicants are made aware, by those who represent the
justice system, that there are procedures in place which they can utilize to protect
their rights.

* The service of documents by the clerk, sheriff and peace officers. Once again,
without these law enforcement agents acting promptly, applicants cannot rely
upon the protection of the order.

* A duty upon the SAPS to execute warrants of arrest and to arrest respondents.

7.7.5 The failure of law enforcement agents to carry out their duties in the crucial stages in the
applicant’s encounter with the legal system should constitute misconduct or even an offence. This
is an attempt to ensure that law enforcement agents have a stake in ensuring that the legislation
works to promote the safety of victims caught in domestic violence situations. In effect, it sends
out the message that domestic violence is not only the problem of the applicant, but that of the
entire justice system. Law enforcement agents have something to lose by not carrying out their
duties to promote the spirit of the legislation.

595
State Responses 99.
 234

7.7.6 A duty on certain individuals to report the ill-treatment of children is contained in the Act
and failure to comply therewith is an offence.596

596
Section 6 of the Act.
 235

8. CONCLUSION

8.1 The Community Law Reform Committee of the Australian Capital Territory597 makes the
following notable observation:
Over the past 10 years every major report dealing with domestic violence at an
international, national, and state level has stressed the need for a co-ordinated and
comprehensive approach to the problem. It has become apparent that there is little hope
of effectively stopping the violence unless players in the system work co-operatively. The
players include the courts, the police, the prosecution, lawyers, correctional services,
health, housing, crisis and victim support workers, refuges, and the legislature.

8.2 The view that domestic violence is a social problem that must be dealt with holistically, also
commanded substantial support on consultation. It is clear that the law does not hold an exclusive
position in either the response to, or the prevention of, domestic violence. The law cannot play its
part in a meaningful way in isolation from the larger community of services. The whole society
must be involved in helping to reduce the problem, because directly or indirectly it affects the
quality of life of the whole society.

8.3 The successful implementation of domestic violence legislation is contingent upon, firstly,
the development of appropriate training programmes for all state role players and, secondly, the
allocation of adequate financial and other resources. Some of the major points of criticism against
the Act rest on the fact that it was enacted without adequate government funding to ensure the
practical realisation of the legislative measures.598

597
CLRC No 9 paragraph 120.
598
Fedler 1995 SALJ 234.
 236

ANNEXURE A

PREVENTION OF FAMILY VIOLENCE ACT 133 OF 1993

[ASSENTED TO 24 SEPTEMBER 1993] [DATE OF COMMENCEMENT: 1 DECEMBER

1993]

(English text signed by the Acting State President)

ACT

To provide for the granting of interdicts with regard to family violence; for an obligation to report
cases of suspected ill-treatment of children; that a husband can be convicted of the rape of his wife;
and for matters connected therewith.

1 Definitions

(1) In this Act, unless the context indicates otherwise-

'magistrate' includes a family magistrate appointed under section 9 (1) (a) (v) of the Lower
Courts Act, 1944 (Act 32 of 1944);

'matrimonial home' means the house, flat, room or other structure in which the parties to
a marriage ordinarily live or lived together;

'prescribed' means prescribed by or under this Act.

(2) Any reference in this Act to the parties to a marriage shall be construed as including a
man and a woman who are or were married to each other according to any law or custom and also
a man and a woman who ordinarily live or lived together as husband and wife, although not married
to each other.
 237

2 Interdict with regard to family violence

(1) A judge or magistrate in chambers may, on application in the prescribed manner by a

party to a marriage (hereinafter called the applicant) or by any other person who has a material
interest in the matter on behalf of the applicant, grant an interdict against the other party to the
marriage (hereinafter called the respondent) enjoining the respondent-

(a) not to assault or threaten the applicant or a child living with the parties or
with either of them;

(b) not to enter the matrimonial home or other place where the applicant is
resident, or a specified part of such home or place or a specified area in which such home or place
is situated;

(c) not to prevent the applicant or a child who ordinarily lives in the matrimonial
home from entering and remaining in the matrimonial home or a specified part of the matrimonial
home; or

(d) not to commit any other act specified in the interdict.

(2) In granting an interdict contemplated in subsection (1) the judge or magistrate, as the
case may be, shall make an order-

(a) authorizing the issue of a warrant for the arrest of the respondent;

(b) suspending the execution of such warrant subject to such conditions

regarding compliance with the interdict as he may deem fit; and

(c) advising the respondent that he may, after 24 hours' notice to the applicant
and the court concerned, apply for the amendment or setting aside of the interdict contemplated
in subsection (1).
 238

(3) The interdict contemplated in subsection (1) and the order contemplated in subsection
(2) shall have no force and effect until served on the respondent in the prescribed manner.

3 Execution of warrant of arrest

(1) Subject to the provisions of section 2 (3) a warrant of arrest issued and suspended in
terms of section 2 (2) may be executed by a peace officer as defined in section 1 of the Criminal
Procedure Act, 1977 (Act 51 of 1977), upon receipt of an affidavit in which it is stated that the
respondent has breached any of the conditions contained in the order contemplated in section 2 (2).

(2) A respondent arrested in terms of subsection (1)-

(a) shall not be released unless a judge or magistrate orders his release; and

(b) shall as soon as possible but not later than 24 hours after his arrest be
brought before a judge or magistrate by a peace officer contemplated in subsection (1).

(3) Subject to the provisions of this section, all the provisions of the Criminal Procedure
Act, 1977 (Act 51 of 1977), relating to the form and manner of execution of warrants of arrest, the
arrest, detention, searching and other treatment necessary for the control of persons named in
warrants of arrest, shall mutatis mutandis apply in respect of warrants of arrest issued under section
2 (2).

(4) The judge or magistrate before whom a respondent is brought in terms of subsection
(2) shall enquire into the respondent's alleged breach of the conditions of the order made in terms
of section 2 (2) and may at the conclusion of such enquiry-

(a) order the release of the respondent from custody; or

(b) convict the respondent of the offence contemplated in section 6.

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(5) The provisions of the Criminal Procedure Act, 1977 (Act 51 of 1977), relating to the
procedure which shall be followed in respect of an enquiry referred to in section 170 of that Act,
shall apply mutatis mutandis in respect of an enquiry under subsection (4).

4 Obligation to report ill-treatment of children

Any person who examines, treats, attends to, advises, instructs or cares for any child in
circumstances which ought to give rise to the reasonable suspicion that such child has been
ill-treated, or suffers from any injury the probable cause of which was deliberate, shall immediately
report such circumstances-

(a) to a police official; or

(b) to a commissioner of child welfare or a social worker referred to in section

1 of the Child Care Act, 1983 (Act 74 of 1983).

5 Rape of wife by her husband

Notwithstanding anything to the contrary contained in any law or in the common law, a
husband may be convicted of the rape of his wife.

6 Offences and penalties

A person who-

(a) contravenes an interdict or other order granted by a judge or magistrate

under section 2 (1) or (2); or

(b) fails to comply with the provisions of section 4,

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shall be guilty of an offence and liable on conviction in the case of an offence referred to in
paragraph (a) to a fine or imprisonment for a period not exceeding 12 months or to both such fine
and such imprisonment and in the case of an offence referred to in paragraph (b) to a fine or
imprisonment for a period not exceeding three months or to both such fine and such imprisonment.

7 Regulations

The Minister of Justice may make regulations-

(a) prescribing the manner in which an application contemplated in section 2 is

to be made;

(b) prescribing the manner in which the interdict and order shall be served on
the respondent in terms of section 2 (3); and

(c) in general, as to any matter which he may consider necessary or expedient

to prescribe or regulate in order to achieve the objects of this Act.

8 Repeal of section 1 of Act 39 of 1989

Section 1 of the Criminal Law and the Criminal Procedure Act Amendment Act, 1989 (Act
39 of 1989), is hereby repealed.

9 Short title and commencement

This Act shall be called the Prevention of Family Violence Act, 1993, and shall come into
operation on a date fixed by the State President by proclamation in the Gazette.
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ANNEXURE B

PERSONS WHO AND INSTITUTIONS WHICH REACTED TO DISCUSSION PAPER

70 ON DOMESTIC VIOLENCE

* Association of Law Societies Standing Committee on Family Law Matters

* Black Sash
* Cape Law Society
* Centre for Criminal Justice, Pietermaritzburg
* Concerned Friends of the Frail and Aged
* Democratic Party
* Department of Justice Gender Unit
* Dr A Allan (Head: Psycholegal Unit, University of Stellenbosch)
* Durban City Police
* Family Advocate: Durban
* Gauteng Members of the ALS Family Law Standing Committee
* Gender Advocacy Programme
* Judge President: Free State
* Judge President: Northern Cape
* Laws and Administration Committee of the General Council of the Bar
* Magistrate: Bloemfontein
* Magistrate: Durban
* Magistrate: Greytown
* Magistrate: Johannesburg
* Magistrate: Mitchells Plain
* Magistrate: Paarl
* Magistrate: Pietermaritzburg
* Magistrate: Pretoria
* Magistrate: Pretoria North
* Magistrate: Verulam
* Magistrate: Wynberg
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* M Horton (Research Advisor in the Deputy Ministry of Justice)

* M L Kennedy (Defence Secretariat)
* Mpumalanga Provincial Government (Department of Health, Welfare and Gender Affairs)
* N Van Dokkum (Department of Private Law, University of Durban)
* Natal Law Society
* National Human Rights
* NICRO Western Cape
* P Thwala (University of Swaziland Library)
* S Kottler (Intern Psychologist at Broadcast Research Unit at Sabc)
* SA National Council for Child and Family Welfare
* The Women's Lobby
* Tshwaranang Legal Advocacy Centre to End Violence Against Women
* UCT Law, Race and Gender Research Unit
* UNISA Health Psychology Unit and Centre for Peace Action
* UNISA Family Law Lecturers
* UWC Community Law Centre (Women & Human Rights Project), Rape Crisis (Cape
Town) & ANC Parliamentary Women’s Caucus
* Van Niekerk & Vennote