Divorce Attorney Cape Town

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 – abuse may lead to murder


Domestic Violence, a threat to our society

The You and Huisgenoot Magazines recently asked my opinion and comment about a tragic murder that took place, when an ex-boyfriend killed his ex-girlfriend.  The story appears in the latest You and Huisgenoot magazines.

Catherine Krog (28) had overcome her addiction to drugs and turned over a new leaf for her three-year-old daughter, Bella.

She seemed confident and successful, had her own staff recruitment agency and tried to help friends who were addicts.

But the young mother knew that her ex-husband, Clint Walley (50), was stalking her and it was only a matter of time before he killed her, because no one could stop him.

Her body was found on 8 September in her Durban home. Next to her lay Walley’s body. He’d shot her in front of their daughter and killed himself.

So many people saw it coming, Cat’s parents, the mother and sister that she adopted, her private investigator, the police, friends, neighbours and relatives. Her ex-boyfriend was threatening and stalking her and facing charges for an unlicensed firearm, kidnapping their child and the court released him on bail of R 2000. The full story can be read in the YOU and Huisgenoot magazines of 16 September 2011.

Many abused women might feel they have no one to turn to for help, but divorce attorney Bertus Preller disagrees. “The law is there to protect you. There are many different legal avenues for victims of abuse to explore. Running away or continuing to endure the pain by staying in an abusive relationship are not the only problems. A restraining order is a court order designed to stop harassment. As a court order it prevents the abuser from contacting you or approaching you in any way. “If the abuser breaks the stipulations they can face a penalty or even jail time”. While the stipulations and restrictions in any order are different, violating it puts the culprit in contempt of court which means immediate arrest and the offender could be fined or sent to jail. “Usually the perpetrator will be arrested, taken into custody and will have to appear in court to explain why the order was violated. A suitable punishment, either a fine or prison sentence, will then be decided on”, Preller says.

Domestic violence and abuse can happen to anyone, regardless of gender yet the problem is often overlooked, excused, or denied. This is especially true when the abuse is psychological, rather than physical. Emotional abuse is often minimized, yet it can leave deep and lasting scars.

What is a domestic relationship?

You can have a domestic relationship with – someone you are or were married to; your parents or guardian; any family member(s); including your own child(ren); anyone you have lived with, whether you were married to that person or not; your life partner of the same sex; someone you went out with, even for a short time, or had sex with; or someone with whom you share a child.

What is domestic violence?

The following may be regarded as domestic violence:

  • sexual abuse (whether you are married or not);
  • physical abuse or assault (slapping, biting, kicking, and threats of physical violence);
  • damage to property or anything you value;
  • stalking (when the person follows or approaches you or your children repeatedly);
  • economic abuse, that is, when the other person keeps money to which you are legally entitled from you in
    an unreasonable manner by –
    • refusing to pay or share the rent or mortgage bond for the home you share; or
    • disposing of any property (household goods) in which you have interest, without your permission;
  • emotional abuse (that is, degrading or humiliating behaviour, including repeated insults, belittling, cursing and threats);
  • any other controlling or abusive behaviour which poses a threat to your safety, health or well-being.

What are my options if I am being abused?

You have the right to –

  • apply for a protection order at the nearest police station or
  • magistrate’s court; or
  • lay a criminal charge at the police station and apply for a protection order.

What is a protection order?

It is an order issued by a court at your request, ordering a person with whom you have or had a domestic relationship, to stop abusing you. It may also prevent the person from getting help from any other person to commit such acts. An interim protection order can also be issued at any time of the day or night for your protection.

Who can apply for a protection order?

Any victim of domestic violence may apply. Children, and if they are too young, a parent or guardian, or any person acting on behalf of someone who is responsible for them, but with their permission.

What can I do if an abuser disobeys a protection order?

Phone the South African Police Service. Thereafter a statement will be taken from you. Provide the police with the warrant of arrest you received together with the protection order (if you have lost it, apply at the court for another one). If you are in immediate danger the abuser will be arrested, otherwise the abuser will be given a notice to appear in court the next day.

About Bertus Preller

Tel: 021 422 1323

email: bertus(@)divorceattorney.co.za

Bertus Preller is a Divorce  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


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

Divorce, can my spouse evict me from the matrimonial home?


The provision of accommodation and household assets forms part of the duty to support and therefore the occupation of the matrimonial home and the use of the household assets are closely related to the duty of support.

During the subsistence of the marriage both spouses are entitled to live in the matrimonial home and to make use of the household assets such as appliances and furniture, irrespective of whether they were married in or out of community of property and irrespective of which spouse owns or rents the matrimonial home or household assets. The latter is a unique and invariable consequence of a marriage.

As a general rule the spouse who rents or owns the property may therefore not eject the other spouse from the matrimonial home without providing him or her with a suitable alternative of accommodation, nor may the other spouse eject the spouse that rents or owns the property from the matrimonial home. The interests of the children as well as matrimonial guilt play an important role. The Constitution of the Republic of South Africa also plays a role in that Section 28 (2) requires that a child’s best interests must be paramount in all matters relating to children. Therefore even the “innocent” spouse can be ejected from the matrimonial home if that will be in the best interests of the child.

A spouse who is subject to ejectment from the matrimonial home or who is barred from using the household assets can approach the court for an interdict to stop the other spouse from doing so. If the right has already been violated and for example where the other spouse has changed the locks or has denied the other spouse access, the aggrieved spouse can approach the court to invoke what is called in law the mandament van spolie.

I recently handled a matter where one spouse was ejected from the family home without an offer of alternative accommodation. We applied under the Domestic Violence Act, 116 of 1998 for emergency monetary relief pending the institution of a Rule 43 Application and were successful in obtaining monetary relief for the deposit on a new house and the monthly rental instalments.

Written by:

Bertus Preller

Family Law Attorney

Abrahams and Gross Inc.

http://www.divorceattorney.co.za

info@divorceattorney.co.za

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