Domestic Violence and Abuse in South Africa

“When you’re in a broken family and your role model is a violent male, boys grow up believing that’s the way they’re supposed to act. And girls think that’s an accepted way men will treat them.” –Rep. Jim Costa

On 25 November 2012 the 16 days of activism for no violence against women and children commenced and will end on 10 December 2012. It is an international campaign and takes place every year from 25 November (International Day for the Elimination of Violence Against Women) to 10 December (International Human Rights Day). During this time, the South African Government runs a 16 Days of Activism Campaign to make people aware of the negative impact of violence on women and children and to act against abuse. It is estimated that one in every four women is assaulted by an intimate partner every week, that one adult woman out of every six is assaulted by her partner, and that in at least 46% of these cases, the men involved also abuse the woman’s children.

It is extremely important to increase awareness of abuse and build support for victims and survivors of abuse. South Africa has one of the highest incidences of domestic violence in the world. And, sadly, domestic violence is the most common and widespread human rights abuse in South Africa. Every day, women are murdered, physically and sexually assaulted, threatened, and humiliated by their partners, within their own homes. Organisations estimate that one out of every six women in South Africa is regularly assaulted by her partner. More than 56 000 rapes and sexual offences were reported in South Africa in the 2010 financial year. This equates to 154 reported sexual offences each day. It is conservatively estimated that only one in ten sexual offences are reported, due to a lack of faith in the system. In 2010, most incidents of assault 35,7%, occurred at home. 29,8% of sexual offences took place at home and 18,5% of sexual offences took place at someone else’s home. The available data also indicates that incidents of domestic violence, in which especially women are victims, are increasing. A recent survey conducted in Gauteng found that half the women living in Gauteng 51.3% have experienced abuse or violence, and 75.5% of men admitted to perpetrating abuse or violence against women. The same study found that one in four women had experienced sexual violence, and 37.4% of men disclosed perpetrating sexual violence

According to Independent Complaints Directorate (ICD) statistics last year, up to 65% of police stations were not compliant with the Domestic Violence Act, which means that they were not providing the necessary support to victims of domestic violence and 53% of domestic violence victims were incorrectly told they were not allowed to lay a charge after being abused and 96% of domestic violence victims were not given information on their rights, such as having the right to apply for a Protection Order when they go to their local police station. It is inconceivable that a woman who has had to endure the trauma of being abused by a family member or partner is subjected to the indignity of having their case poorly managed by the police.

Although the exact percentages are in dispute, there is a large amount of cross-cultural evidence that women are subjected to domestic violence significantly more often than men. In addition, there is consensus that women are more often subjected to severe forms of abuse and are more likely to be injured by an abusive partner. Determining how many instances of domestic violence actually involve male victims is difficult. Some studies have shown that women who assaulted their male partners were more likely to avoid arrest even when the male victim contacts the police. Another study concluded that female perpetrators are viewed by law enforcement as victims rather than the actual offenders of violence against men. Other studies have also demonstrated a high degree of acceptance of aggression against men by women. Domestic violence also occurs in same-sex relationships. Gay and lesbian relationships have been identified as a risk factor for abuse in certain populations. Historically, domestic violence has been seen as a family issue and little interest has been directed at violence in same-sex relationships.

Domestic violence is a pattern of abusive behaviour that transgresses the right of citizens to be free from violence. When one partner in a relationship harms the other to obtain or maintain power and control over them, regardless of whether they are married or unmarried, living together or apart, that is domestic violence. The ‘harm’ can take a variety of forms, whether it be from verbal abuse like shouting, emotional abuse like manipulation, control and/or humiliation, physical abuse like hitting and/or punching, and/or sexual abuse like rape and/or inappropriate touching of either the woman or her children.

The majority of adult victims are women. The victims and survivors are not more likely to belong to any particular racial, cultural or language groups. The majority of perpetrators are male and usually live with the victim at the time of the abuse. There is an important association between the propensity to domestic violence and drug and alcohol use.

What can you do if you are abused?

Domestic violence is regulated by the Domestic Violence Act 116 of 1998. The Act was introduced in 1998 with the purpose of affording women protection from domestic violence by creating obligations on law enforcement bodies, such as the South African Police Services, to protect victims as far as possible. The Act attempts to provide victims of domestic violence with an accessible legal instrument with which to prevent further abuses taking place within their domestic relationships. The Act recognises that domestic violence is a serious crime against our society, and extends the definition of domestic violence to include not only married women and their children, but also unmarried women who are involved in relationships or living with their partners, people in same-sex relationships, mothers and their sons, and other people who share a living space.

A protection order, also called a restraining order or domestic violence interdict is a court order which tells an abuser to stop the abuse and sets certain conditions preventing the abuser from harassing or abusing you again. It may also help ensure that the abuser continue to pay rent or a bond or interim maintenance.  The protection order may also prevent the person from getting help from any other person to commit such acts. Victims may also file a criminal charge in addition to obtaining a protection order and get a court order to have the perpetrator’s gun removed, if applicable. Other remedies may also be available, depending on the exact nature of the abuse.

A restraining order can be applied for at your local magistrate’s court.

Important Numbers:

Women Abuse Helpline:  0800 150 150

Childline:    0800 055 555

SAPS Crime Stop:   08600 10111

Bertus Preller

Family Law Attorney

Twitter: @bertuspreller

Email: bertus@divorceattorney.co.za

Tel:  021 422 1323

Source: http://voices.news24.com/bertus-preller/2012/11/abuse-and-domestic-violence-south-africa/ 

Domestic Violence in South Africa

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.

Domestic violence and Facebook

Domestic violence and Facebook

I recently acted in a matter wherein I defended a client on a domestic violence charge who “un-friended” an ex-girlfriend on his facebook profile. After informing his ex that he was going to “delete” her as a friend she approached the magistrate’s court in Cape Town and obtained a restraining order against my client.  She worded her affidavit in support of the interim protection order in such a “creative” fashion that the Magistrate assumed that “delete” actually meant something more serious, possibly a threat to her life. In Domestic Violence cases an applicant usually obtains an interim interdict (without the other party being at court) with a return date upon which the Respondent is called upon to give reasons why the interdict should not be made final. The problem with such orders are that any violation of the order may result in a Respondent being arrested by the South African Police. In my client’s opposing affidavit on the return I stated the following:

The application is… ill-fated and amounts to a mockery of the true objectives of the Domestic Violence Act…Applicant and I (Respondent) never lived together in a relationship or partnership of any sort. [She] was merely a friend like all the other male and female friends that I have… [If] the scope of the Domestic Violence Act were to extend to an area as in this case…any confrontation in the normal scope of a friendship could be construed as domestic violence, with absurd consequences.

Needless to say the ex had to withdraw the application due to the fact that there were simply no grounds to obtain a final order. The case triggered media attention in Noseweek and the editor noted the below.  The full article appear in the September issue of Noseweek and will meet the reader with a shocking example of the trivialisation of domestic violence as you’re likely to find – not to speak of the terrors that lurk on Facebook!

Noseweek Issue #143, 1st September 2011

In considering why a man accused of domestic violence might be stripped of his constitutional right to be presumed innocent until proved guilty at a fair trial, Judge Albie Sachs (in a 1999 Constitutional Court judgment) sought guidance from various authorities on the subject. It is clear from the authorities he quoted that what they all have in mind, when speaking of domestic violence, is ongoing, serious violence – or the threat of it – in the intimate, often hidden context of a “domestic relationship”.

So American authority Donna Wills states that “domestic violence is the leading cause of injury to women, a major factor in female homicide, a contributing factor to female suicide, a major risk for child abuse, and a major precursor for future batterers and violent youth offenders”.

South African author Joanne Fedler talks of “intra-family” offences, that include arson, assault,  threats to do bodily injury, obstructing justice, cruelty to children, incest, kidnapping, murder, culpable homicide, rape, forced prostitution, unlawful entry on to property, malicious damage to property, stalking, theft, robbery, unlawful possession of a firearm, involuntary sodomy, extortion, blackmail and sexual assault.

Any magistrate or legal practitioner that rates a man threatening to “unfriend” an interfering ex-girlfriend from his Facebook page on the same scale as the offences listed above is exposing himself and the law to ridicule.

Judge Sachs’s understanding of the nature of domestic violence is fairly mirrored in public perception: when most people hear that a man has been served with a “restraining” or “protection” order in terms of the Domestic Violence Act, they immediately visualise a pathetic woman bruised and beaten to within an inch of her life, surrounded by weeping, traumatised children – and somewhere skulking in the shameful shadows, an out-of-control, violent, probably drunken brute.

The stigma that attaches to such an order is probably only paralleled by a charge of paedophilia.

The law was designed to provide emergency relief to women in imminent danger of life-threatening physical or ongoing emotional abuse by someone with whom they are, or have been in a “domestic” relationship. Police and magistrates are empowered to come to the immediate aid of such women by issuing interim protection orders without prior notice to the accused person.

Interim orders in terms of the Act are,  therefore, issued pretty much on the woman’s say-so. Which is all the more reason why those entrusted with carrying out the law must do so sensibly and with great care.  Inter alia they must take care to ensure that the reasons advanced by the applicant are not frivolous, and that the problem, if there is one, might not be solved in a way less prejudicial to the accused.

It has been disconcerting to discover that there are a growing 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 unscrupulous lawyers and vengeful, “scorned” women to punish or blackmail their ex-lovers or, more often, as a cheap and nasty way to gain leverage in a divorce action.

The weakness in the system that unscrupulous lawyers have found and are exploiting is really a failure in the administration of justice: too often the police charged with processing these charges, have so little interest in them that they simply rubber stamp any statement that is handed in by a woman who alleges she is “fearful” because she has been “threatened”, 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.

Too many magistrates are in turn  routinely endorsing the applications by issuing “interim” protection orders – the interim nature of the order offering them an “out”: why, a man wrongfully restrained need simply come to court on the return date and have the order set aside! Never mind the scandal and reputational damage he 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 he gets his day in court.

Even more serious: in the process they are trivialising domestic violence and, ultimately, undermining public confidence in a law that was enacted to deal with a really terrifying and all too pervasive social problem. Our cover story on page 10 is, in my view, as shocking an example of the trivialisation of domestic violence as you’re likely to find – not to speak of the terrors that lurk on Facebook!

The Editor

Copyright © 2011 www.noseweek.co.za

About the Author

Bertus Preller is a Divorce and Family Law Attorney in Cape Town and has more than 20 years experience in most sectors of the law and 13 years as a practicing attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com and is frequently quoted on Family Law issues in newspapers such as the Sunday Times and Business Times. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters, international divorce law, digital rights, media law and criminal law.

Domestic Violence – the role of the Police

The role of the police in fighting acts of domestic violence

Domestic violence and abuse can occur among heterosexual couples, same-sex couples, as well as any people living together in the same household. It is important to note that while women and children are the most victimized, men are also abused, especially verbally and emotionally, although sometimes physically too. Domestic violence occurs in all age ranges, ethnic groups, and class levels.

In the past, the police have been criticized for not responding adequately to cases of domestic violence. In an attempt to rectify this, the legislature enacted the Domestic Violence Act 116 of 1998 (the Act). Legislators placed particular obligations on the police in the Act in an effort to challenge their long history of neglect of domestic violence cases (Lisa Vetten ‘Addressing domestic violence in South Africa: Reflections on strategy and practice’ www.un.org/womenwatch/daw/egm/vaw-gp-2005/docs/experts/vetten.vaw.pdf). This article takes a look at the role that police officials should play in domestic violence cases.

The Domestic Violence Act

The aim of the Act, as stated in its preamble, is

‘to afford the victims of domestic violence the maximum protection from domestic abuse that the law can provide; and to introduce measures which seek to ensure that the relevant organs of state give full effect to the provisions of this Act’.

This legislative intervention was seen as progressive and necessary to protect mostly the rights of women and children. However, the Act has not brought about the expected results as acts of domestic violence continue to occur. Domestic violence is defined in the Act as

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

Domestic violence is defined broadly in the Act in order to capture the most common abusive behaviours that victims are exposed to on an almost daily basis in South Africa. Domestic violence cases are regarded as civil cases, hence domestic violence is not defined as a crime in the Act. This means that there is no specific crime of domestic violence in South Africa. Such a criminal case will be conducted separately from the civil proceedings in the domestic violence case.

The role of the police

To ensure that cases of domestic violence are taken seriously, the Act places an obligation on members of the South African Police Service (SAPS) to monitor, enforce and oversee the implementation of the requirements of the Act. In terms of s 2 of the Act, any member of the SAPS at the scene of an incident of domestic violence or as soon thereafter as is reasonably possible, or when the incident of domestic violence is reported, must –

• assist or make arrangements for the complainant to find a suitable shelter and obtain medical treatment;
• hand a notice containing information as prescribed to the complainant in his official language; and
• if it is reasonably possible, to explain the contents of such notice as well as the remedies that are at the disposal of the complainant, and the right to lodge a criminal complaint if applicable.

Section 2 requires police officers to make an immediate assessment of the need for first aid or other medical assistance. This implies that there must be cooperation between the police and the Department of Health to make ambulances available. This section does not, however, give clear directives on how the police should go about ensuring that the victim does obtain medical attention. It might also be desirable for the police official to accompany the victim to get medical attention in order to ensure that the continuity and integrity of the evidence is maintained.

Furthermore, the police have a duty to explain the investigation processes and procedures to the complainant and make it clear to the complainant that domestic violence cases are taken seriously. They should also emphasise the importance of the complainant being truthful and forthcoming with relevant information that may assist the police in protecting his rights. The police officials are also obliged in terms of s 2(c) to explain to the complainant –

• the possible remedies that are open to the complainant;
• that the complainant has the right to apply for a protection order in terms of s 4 of the Act; and
• the right to lay criminal charges if the domestic violence act concerned constitutes a crime.

If it is reasonably possible, the police official handling a domestic violence case must assist the complainant in his language in terms of s 2(b) and (c) of the Act. It would be difficult, if not impossible, for the police to carry out the requirements of s 2 if they are not adequately trained to deal with domestic violence cases. It is doubtful whether members of SAPS are sufficiently trained to carry out their duties as required by the Act.

It is important that police officials entrusted with dealing with domestic violence cases receive special training to enable them to carry out their obligations as required by the Act. The police should also be adequately trained to conduct domestic violence cases efficiently. It has been recommended that when an incident of domestic violence is reported to SAPS, the statement-taking should include five essential questions on –

• the history of the abuse;
• a description of the most recent incidence of domestic violence;
• any medical attention sought by the complainant as a result of the current incident or previous incidents or any other evidence to show that an act of domestic violence has taken place;
• the complainant’s knowledge of any previous criminal records of the accused; and
• the complainant’s knowledge of any orders against the accused, including protection orders, interdicts and maintenance orders (see Lillian Artz ‘Better safe than sorry: Magistrates’ views on the Domestic Violence Act’ Crime Quarterly No 7 2004).

Furthermore, s 3 of the Act empowers police officials to arrest at the scene of domestic violence without a warrant if there is a reasonable suspicion that an offence committed has elements of violence.

‘Failure to comply with [the requirements of s 2] constitutes misconduct and the National Commissioner of the SAPS is required to submit six-monthly reports to parliament detailing the number and nature of complaints against the police for failing to adhere to these statutory obligations; disciplinary proceedings instituted and steps taken as a result of recommendations made by the Independent Complaints Directorate’ (Vetten).

State’s obligation to protect against domestic violence

In terms of s 12(1)(c) of the Constitution, everyone 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 Constitutional Court in S v Baloyi (Minister of Justice and Another Intervening) 2000 (2) SA 425 (CC) para 11 has held that:

‘Read with s 7(2), s 12(1) has to be understood as obliging the state directly to protect the right of everyone to be free from private or domestic violence. Indeed, the state is under a series of constitutional mandates which include the obligation to deal with domestic violence: To protect both the rights of everyone to enjoy freedom and security of the person and to bodily and psychological integrity, and the right to have their dignity respected and protected, as well as the defensive rights of everyone not to be subjected to torture in any way and not to be treated or punished in a cruel, inhuman or degrading way’.

By promulgating the Act, the state was conscious of the fact that domestic and family violence is a pervasive and frequently lethal problem that challenges society at every level. The importance of eradicating domestic violence and abuse in our society cannot be overstated. In order to comply with its constitutional mandate, the state entrusted the police with the duty to protect victims of domestic violence.

‘[SAPS] is one of the primary agencies of the state responsible for the protection of the public in general, and women and children in particular, against the invasion of their fundamental rights by perpetrators of violent crime’ (Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC)).

Conclusion

Domestic violence remains a major social ill in South Africa and requires law enforcement agencies to work aggressively to prevent it. The Act is an expression of the state’s commitment to eliminate domestic violence. However, in order for the implementation of the Act to be successful, police officials must be trained to enable them to make informed decisions that best protect victims of domestic violence and abuse. In order for police officials to be able to adequately inform victims of their rights in terms of the Act and to explain certain information, they need detailed understanding of the issues involved and an ability to put information across in a clear and simple manner. Domestic violence cases involve particular investigative skills, which the state must ensure that members of the police are equipped with.

Article by Clement Marumoagae LLB (Wits) LLM (NWU) who is a candidate attorney at the Wits Law Clinic – De Rebus.

Compiled by Bertus Preller a Divorce and Family Law Attorney in Cape Town who has more than 20 years experience in most sectors of the law and 13 years as a practicing attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com and is frequently quoted on Family Law issues in newspapers such as the Sunday Times and Business Times. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters, international divorce law, digital rights, media law and criminal law.

Bertus Preller

B.Proc; AD Dip L Law

Family Law Attorney

A:1st Floor, 56 Shortmarket Street, Cape Town, 8000

O: +27 (0) 21 422 1323

F: 086 572 8373

C: +27 (0) 83 443 9838

E: bertus@divorceattorney.co.za; W:  www.divorceattorney.co.za; Twitter: www.twitter.com/edivorce;

Facebook: www.facebook.com/divorceattorneys; Skype: divorceattorney

Domestic Violence

Domestic Violence

It happens frequently that one parent of a child would abuse the provisions of the Domestic Violence Act to block the contact that the other parent have towards their child. This was an issue that was dealt with in the case of Narodien v Andrews 2002 (3) SA 500 (C).

The matter came before the Court for review at the request of one of the magistrates of the Cape Town magistrate’s court. The applicant and respondent were the biological parents of a boy, L, aged five, born out of wedlock. The applicant father had applied to the magistrate’s court in terms of the Domestic Violence Act 116 of 1998 (the Act) for an interim protection order against the respondent mother. The affidavit accompanying the application had, however, contained no details of any ‘acts of domestic violence’ committed by the respondent. The parties were embroiled in a dispute concerning the applicant’s access to his son. The respondent had allegedly agreed on various occasions to allow the applicant to see the child but would not allow the child to spend an entire weekend with his father. The applicant wanted L to spend every second weekend with him from Friday 6 pm to Sunday 6 pm. The relief applied for by the applicant in the magistrate’s court was that he be granted ‘access to his son’ as stipulated.

The magistrate hearing the matter had issued an ‘interim protection order’ against the respondent. The order did not mention any acts of domestic violence but simply ordered the respondent not to prevent the applicant from having contact with his son. On the return date of the ‘interim protection order’ the respondent opposed the issuing of a ‘final protection order’. It appeared from the evidence that the respondent was unwilling to allow the child to remain with his father for an entire weekend because this would mean that he would miss out on the Sunday morning church service to which his mother habitually took him and, further, that the respondent would be unable to limit the opportunities which the child had to interact with the applicant’s family. The magistrate hearing the matter, however, confirmed the ‘interim protection order’, ordering the respondent to allow the applicant access to his son from Friday 7 pm to Sunday 4 pm every alternate weekend.

The respondent subsequently applied for the setting aside of the ‘protection order’. The magistrate hearing that application varied the previous order made by granting the applicant access to the child from 7 pm Friday to 7 pm Saturday and from 11 am Sunday to 5 pm Sunday every alternate weekend until such time as access could be determined by the High Court. The applicant had been present at court but, due to a misunderstanding, was not in court when the matter was heard. The ‘variation order’ was accordingly granted in his absence. The magistrate subsequently requested the High Court to set aside the ‘variation order’ on the grounds that the order had been incorrectly granted in the absence of one of the parties. Following upon queries by the Court as to the legitimacy of the ‘protection order’, the magistrate referring the matter for review stated that the definition of ‘domestic violence’ in the Act included any controlling or abusive behaviour towards the complainant where such conduct harmed or could cause imminent harm to the safety, health and well-being of the complainant and that the conduct complained of by the applicant in the instant matter had fallen within this definition. The magistrate stated further that the court had been satisfied that undue emotional hardship would be suffered by the applicant if a protection order were not issued immediately.

The court found that the High Court in its capacity as upper guardian of all minor children within its area of jurisdiction, however, had an inherent common-law jurisdiction mero motu to review the so-called ‘protection orders’ granted by the magistrate’s court in the instant matter, as such orders directly concerned the interests of a minor child within its area of jurisdiction.

While the concept of ‘domestic violence’ was defined very broadly in s 1 of the Act, such definition had to be placed within the context of the Act as a whole and not be viewed in isolation.

An interpretation of s 7(6) of the Act which would empower a magistrate’s court to make ‘stand-alone’ orders concerning access to a minor child in cases where the parents were embroiled in a dispute about access amounted to a radical departure from the relevant common-law principles and statutory provisions relating to child welfare and statutory interpretation. Such interpretation of s 7(6) of the Act could even mean, theoretically, that the magistrate’s court would have territorial jurisdiction to make orders concerning access where the High Court would have no such jurisdiction. This construction offended against the tenet of statutory interpretation that, as far as possible, statutes had to be interpreted so as not to give rise to absurd, anomalous or unreasonable results.

The mischief which s 7(6) of the Act had been meant to address was a lack of an express provision in other family violence legislation for the courts granting family violence interdicts to make ancillary orders relating to contact with minor children, so ensuring that children at risk were protected from domestic violence and that the protection of the adult applicant was not compromised by arrangements relating to contact between the respondent and any children living with the applicant. This purpose was a far cry from an interpretation of s 7(6) which would empower the magistrate’s court to make a ‘protection order’ under the Act which consisted solely of an order granting access to a minor child or regulating the exercise of such access. Orders concerning access made in terms of s 7(6) had to be ancillary to a ‘protection order’ of the kind envisaged in s 7(1) of the Act. A stand alone order as to access could not legitimately be regarded as falling within the powers vested in the magistrate’s court by s 7(1) (h).

As such it should be noted that a Domestic Violence order may be taken on review to the High Court if there are grounds to do so. To use the provisions of the Domestic Violence Act simply as a measure to block the contact of the other parent is wrong and may therefore be set aside.

Bertus Preller

Family Law Attorney

Abrahams and Gross Inc.

http://www.divorceattorney.co.za