Domestic violence is at the forefront of the national news daily in South Africa, more specifically, Gender Based Violence (“GBV”). To paint a clear picture, in the year 2022, there was 1277 cases of attempted murder of women alone.

The COVID-19 pandemic brought with it many tragedies, one of which was an increase in the number of GBV cases reported in South Africa as 2 230 GBV cases were reported in the first week of the national lock down during 2020. As a direct result of these statistics, the legislature realised the urgency for change to be made to the existing Domestic Violence Act and therefore implemented the Domestic Violence Amendment Act 14 of 2021. The amended Act extends the protection that was afforded to victims of domestic violence in terms of the original Domestic Violence Act 16 of 1998.

It is important to note that this Act only applies to Domestic Violence which by its very meaning arises as a result of violence in a domestic relationship.

WHAT IS A DOMESTIC RELATIONSHIP IN TERMS OF THE DOMESTIC VIOLENCE AMENDMENT ACT?

Section 1 of the Domestic Violence Amendment Act 14 of 2021 defines a domestic relationship as a relationship between the two parties in question, in terms of which:

“1a)   they are or were married to each other, including marriage according to any law, custom or religion;

1b)    they live or lived together in a relationship in the nature of marriage, although they are not married to each other or are not able to be married to each other (includes same sex relationships);

1c)    they are the parents of a child or are persons who have or had parental responsibility for the child they shared (does not have to be at the same time);

1d)    they are family members related by consanguinity, affinity or adoption;

1e)   they are or were engaged, dating or in a customary relationship, including an actual or perceived romantic, intimate or sexual relationship of any duration; or

1f)     they are persons in a close relationship and share or recently shared the same residence.”

IN TERMS OF THE DOMESTIC VIOLENCE ACT 116 OF 1998, DOMESTIC VIOLENCE INCLUDES NAMELY:

-              Physical abuse:- any act or threatened act of physical violence;

-              Sexual abuse:- any conduct that abuses, humiliates, degrades or otherwise violates the sexual integrity of the complainant;

-       Emotional, verbal and psychological abuse:- a pattern of degrading or humiliating conduct towards a complainant, including repeated insults, ridicules, name-calling, repeated threats to cause emotional pain or the repeated threats to cause emotional pain or the repeated exhibition of obsessive possessiveness or jealousy constituting a serious invasion of the complainants privacy, liberty, integrity or security;

-       Economic abuse:- unreasonable deprivation of economic or financial resources to which the complainant is entitles to under law or which the complainant requires out of necessity, including housing;

-              Intimidation:- the uttering or conveying of a threat;

-              Harassment:- a pattern of conduct which induces the fear of harm, including, repeatedly watching or loitering outside the home or work premises of the complainant, making telephone calls repeatedly or sending messages, electronic mails or letter to the complainant repeatedly;

-              Stalking:- repeatedly following, pursuing or accosting the complainant;

-              Damage to Property:- the willful damaging or destruction of property belonging to the complainant;

-              Entry to the complainant’s residence without consent where the parties do not share the same residence; and

-              Any other controlling or abusive behaviour towards the complainant.

CHANGES MADE UNDER THE DOMESTIC VIOLENCE AMENDMENT ACT 14 OF 2021

The above list of acts that constitute domestic violence remain in force and the below acts have been included in the 2021 act:

-           Sexual Harassment:- any unwelcome sexual attention from an offending party who knows or should have known that the attention is unwelcome. The act being unwelcome can be unwelcome either by explicit or implicit behaviour or suggestions made, sent or delivered to the complainant which are sexual in nature regarding the complainant’s sexual orientation. It is also defined as the implied or express reward offered to the complainant if they comply with a sexually orientated request; or the threat of harm should the complainant refuse to comply with such a request;

-              Related person abuse:- the threat made to the complainant to endanger the person or property pf a related person and vice versa;

-     Spiritual Abuse:- advocating hatred against the complainant due to their religious beliefs, which constitutes incitement to cause harm to the complainant or preventing the complainant from exercising their constitutional right to freedom of conscience, religion, thought, belief and opinion. Further, it is manipulating the complainant’s religious belief to cause the complainant to believe that the abuse received is justified in terms of their religion;

-              Elder Abuse:- Abuse of an older person as per the Older Persons Act 13 of 2006;

-              Coercive Behaviour:- compelling or forcing a complainant to abstain from doing anything which they have a lawful right to do or abstain from doing;

-              Controlling Behaviour:- behaviour towards the complainant that causes the complainant to be dependent or subservient to the offending party;

-              Exposing a child to domestic violence:- intentionally causing a child to see or hear domestic violence or to experience the effects thereof.

REMEDIES AVAILABLE TO VICTIMS OF DOMESTIC VIOLENCE

A complainant is entitled to apply for an interim protection order against the offending party.

The complainant should approach the nearest court, alternatively the court nearest to where the offending party resides or where the domestic violence took place.

APPLYING FOR A PROTECTION ORDER AT COURT

The complainant will fill in the application form at court and attach any proof of the alleged abuse such as photographs, messages, recording or medical reports, to name a few. Once the interim order is granted, the police station within the area of the issuing court, will serve the order on the offending party. A return date will be provided by the court to allow the offending party to present their defence, and the presiding officer shall, after hearing both parties versions, decide whether to make the order a final order of court.

IF A PROTECTION ORDER IS IGNORED BY AN OFFENDING PARTY:

If the offending party breaches the terms of the interim or final order, the complainant is entitled to call the police station, who will either arrest the offending party or issue a warning to appear in court for contravention of the protection order.

It is important to note that should the complainant or the court decide to press criminal charges for the act of domestic violence under the 2021 Act, the police will be obliged to carry out the arrest of the offending party. The offending party would have to apply for bail, however, the 2021 Act makes it more challenging to be secure a release on bail.

HOW THE DOMESTIC VIOLENCE AMENDMENT ACT 14 OF 2021 EFFECTS THE PROCESS OF APPLYING FOR BAIL IN CRIMINAL CHARGES RELATING TO DOMESTIC VIOLENCE

The 1996 Act allowed for domestic violence offences to be dealt with in “after-hour” bail applications. However, as a result of an amendment in the 2021 Act, this is no longer possible. Therefore, the offending party has to be brought to court within 48 hours of their arrest where they will then be entitled to apply for bail.

Therefore, the format of the application has been changed from an informal bail application to that of a formal bail application similar to that of a serious offence in terms of schedule 5 of the Criminal Procedure Act 51 of 1977. The presiding office is afforded the discretion to revert back to an informal application should they find it warranted.

The legislature has knuckled down on abusers in order to protect the vulnerable in society, which not only includes women and children but men too.

Should you require assistance today, please contact us to set up a consultation on 066 450 5996 or admin@jjattorneys.online

DISCLAIMER: THE INFORMATION PROVIDED IN THIS ARTICLE IS NOT INTENDED AND DOES NOT CONSTITUTE LEGAL ADVICE. THE INFORMATION PROVIDED IS FOR GENERAL INFORMATION PURPOSES ONLY AND MAY NOT CONSTITUTE THE MOST RECENT INFORMATION.