The Domestic Violence Act 116 of 1998 was introduced with the aim of affording women protection from domestic violence by creating obligations on law enforcement bodies to protect women (victims) as far as is possible.
The Act sets is quite broad in its scope of what behaviours will constitute domestic violence, these are physical, sexual, verbal, emotional and psychological abuse, stalking, intimidation, harassment, malicious damage to property, unauthorized access to the complainant’s property, as well as other forms of controlling behaviour which may cause harm to the safety, health or well being of the complainant. The Act also extends the notion of a ‘domestic relationship’, affording protection to married couples; same-sex relationships; couples who are (or were) in a dating, engagement or customary relationship, including an actual or perceived relationship; any person in an intimate relationship; parents of a child; and people who do or have recently shared a residence.
It is extremely difficult to obtain reliable statistics on domestic violence against in South Africa as many cases go unreported. The incidence domestic violence is even harder to measure because the police do not keep separate statistics on assault cases perpetrated by spouses or partners.
The Department of Justice in South Africa estimates that 1 out of every four South African women are survivors of domestic violence. According to certain figures 1 in every 6 women who die in Gauteng are killed by an intimate partner.
In a research project by the Institute of Security Studies in 1999 it was found that:
- 90% of the women interviewed had experienced emotional abuse: being humiliated in front of others was most commonly reported.
- 90% had also experienced physical abuse: being pushed or shoved and being slapped or hit were highlighted.
- 71% had experienced sexual abuse: attempts to kiss or touch followed by forced sexual intercourse occurred most often.
- 58% experienced economic abuse: money taken without consent was most common.
- 42.5% of women had experienced all forms of abuse.
- 60% of all cases of abuse were committed by partners, lovers or spouses.
The reality however is that it is not only women who are abused by men, but very often women who in return abuse men. Men are increasingly becoming silent victims of domestic abuse and violence at the hands of their partners. No matter who commits Domestic Violence, it remains a hideous and despicable crime.
The flip side of the coin is that there has also been a number of cases where the legal “short cuts” provided by the Domestic Violence Act, and the stigma that a domestic violence order carries, have been abused by vengeful, women to punish or blackmail their ex-partners or, more often, as a nasty way to gain leverage in a divorce action or child care (custody) dispute. Statistically women and children are overwhelmingly the victims of domestic violence.
In a recent study on patterns of domestic violence, Glasgow University found that of the 200 women surveyed, 60 percent said “it was acceptable for women to hit their husbands” while 35 percent admitted assaulting their partners and a total of 8 percent admitted to physically injuring them.
The weakness in the Domestic Violence system is in essence a failure in the administration of justice. Very often the police charged with processing these charges, have so little interest in them that they either turn a blind eye on the victim or they simply rubber stamp any statement that is handed in without making any attempt to establish the nature and seriousness of the threat, or to establish just how real and imminent the danger might be. Some magistrates in turn routinely endorse the applications by issuing “interim” protection orders and a man wrongfully restrained must come to court on the return date and have the order set aside. Never mind the reputational damage a man will undoubtedly have suffered in the meantime. And the legal costs involved. And all the postponements in a congested court system, so that, in the real world, it could be months before the man gets his day in court and have access to his children.
In the case of Omar v Goverment of the Republic of South Africa and Others BCLR 253 CC it was stated that it is crucially important for lawyers as officers of the court with a responsibility to uphold the Constitution and the law not to exploit or manipulate the Domestic Violence Act to gain a tactical advantage in divorce litigation and custody battles. The wide definition of “domestic violence” in the Act makes it easy for a malicious and vindictive complainant to cause an innocent respondent to be arrested and renders exploitation or manipulation of the Act by attorneys to gain an unfair advantage over their opponents.
In the case of B v B 2008 (4) SA 535 W the court confirmed that the High Court has the power as upper guardian of all minor children, to annul an interim protection order granted in a magistrate’s court, in terms of the Act where it is in the best interests of the children. In this matter the custodian parent was using the interim protection order to deny the other parent access to the children in terms of a nother court order. The court found that it was never the intention of the legislature when enacting the Domestic Violence Act to remove these inherent common law powers of the High Court.
A restraining order, once granted, can have the effect to deny someone his/her rights in terms of section 18 of Act 38 of 2005 (the Children’s Act), by denying such a person parental responsibilities and rights in respect of caring, maintaining contact and acting as guardian of the minor children. Nowhere in the Domestic Violence Act is the words “access” or “custody” defined. The point is that one cannot seek an order relating to custody and access through the Act, as the Magistrate’s Court is not competent to grant such relief.