Divorce Attorney Cape Town

Download Free Family Law eBooks


Bertus Preller & Associates Inc.

Bertus Preller & Associates Inc., has made a number of eBooks freely available for download by the general public on all aspects of Family Law, Divorce and Separation. eBooks that are currently available to be downloaded for free include the following:

  • Domestic Violence and Abuse
  • Spousal and Child Maintenance
  • Marital Regimes – In Community of Property, Out of Community of Property, with or without accrual
  • Finances and Divorce
  • Emotions and Divorce
  • Harassement
  • Relocation and Child Abduction
  • Divorce and Retirement Funds
  • 60 Questions on Divorce

 

Further topics will follow soon.

To download these books, simply click on the download Banner below:

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Brought to you by:

Bertus Preller & Associates Inc.
Unit 5, 1st Floor, 10 Pepper Street, Cape Town, 8000
Also consulting at:
Suite 102, 1st Floor, Big Bay Office Park, 16 Beach Estate Boulevard, Big Bay, Cape Town, 7441 and at 39 Plein Street, Stellenbosch, 7600.
Telephone: Cape Town Office: +27 21 422-2461, Big Bay Office: +27870735747
E-mail:  law(@)preller.co.za

Telephone: +27 21 422-2461 or +27 21 422-2573 or +27 21 422-2597
Facebook: http://www.facebook.com/divorceattorneys
Twitter: @bertuspreller

 

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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


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

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