Enhancing effectiveness: Strengthening protection for domestic violence victims through the Amendment Act

September 1st, 2023
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Picture source: Gallo Images/Getty

 ‘In 2020, President Cyril Ramaphosa declared [gender-based violence (GBV)] South Africa’s second pandemic and noted that it needed to be taken as seriously as the coronavirus. Already named the “rape capital of the world” by Interpol, South Africa continues to grapple with increasing rates of domestic abuse, sexual violence and femicide. During the pandemic, incidents of GBV increased exponentially due to many women having been confined to spaces with their perpetrators as a result of lockdowns and measures to restrict movement and curb the spread of the virus.

Police Minister Bheki Cele recently announced that more than 9 500 cases of GBV and 13 000 cases of domestic violence were reported just between July and September 2021. Over the same period, 897 women were murdered (an increase of 7.7% compared to the same period in 2020), while sexual offence cases increased by 4.7% and incidents of rape rose by 7.1% compared to the second quarter of 2020.

These troubling statistics highlight our failures as a nation in protecting South African women, especially black and disabled women, and calls for an urgent and consolidated response to the crisis we are facing from all sectors of our society including government, corporates, communities, schools and universities.

This year, [President] Ramaphosa signed into law legislation aimed at strengthening efforts to end GBV in the country including the Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill, the Criminal and Related Matters Amendment Bill, and the Domestic Violence Amendment Bill’ (Deepa Vallabh ‘Criminalising gender-based violence is not enough’ (https://mg.co.za, accessed 31-7-2023)).

A presiding officer in the domestic violence court is responsible for overseeing cases related to domestic violence. This includes presiding over hearings, making legal rulings, and ensuring that court proceedings are conducted fairly and impartially.

The role of a presiding officer in domestic violence court is particularly important because domestic violence cases can be complex and emotionally charged. The presiding officer must be knowledgeable about relevant laws and regulations, as well as the specific issues that arise in domestic violence cases, such as the dynamics of power and control between abusers and victims.

In addition to overseeing court proceedings, a presiding officer in the domestic violence court may also be responsible for coordinating with other agencies and organisations, such as law enforcement, social services, and victim advocacy groups, to ensure that victims receive appropriate support and services.

Overall, serving as a presiding officer in domestic violence courts can be a challenging but rewarding experience, as it involves working to protect the safety and well-being of victims of domestic violence while upholding the principles of justice and fairness in the legal system.

The Domestic Violence Amendment Act 14 of 2021 came into effect on 14 April 2023 as per Proc R117 GG48419/14-4-2023.

The original Act had a section called definitions. The new Act now calls it definitions and interpretations. There were no subsections in the old Act. There are now subss 1 and 2. Section 1(1) is the definitions and s 1(2) is the interpretation. The old Act had 24 definitions and the new Act has 52 definitions.

There are new definitions for words such as ‘capture’, ‘coercive behaviour’, ‘caregiver’, ‘child’ and ‘Director-General’.

There are also new definitions contained in the regulations regarding electronic communication.

The Act now prescribes that the court manager will prepare a roster for clerks who will attend to applications and provide contact details that can be outside normal court hours, including weekends and public holidays. The roster will be sent to Station Commanders at local police stations and displayed on the Department of Justice website.

The supervisor on duty or court manager is responsible for contacting the magistrate designated to consider urgent applications, which are brought after hours.

‘The new Act aims to aid the country in its endemic of widespread gender-based violence as well as the harm done against children within a household’ (BusinessTech ‘New domestic violence laws in South Africa – what you need to know’ (https://businesstech.co.za, accessed 31-7-2023)).

The Act also provides that a new document called a domestic violence safety monitoring notice may now also be applied for with application for protection order or before a final protection order is granted. This is applied for where a complainant shares a joint residence with the respondent. The application is made with a supporting affidavit to the clerk of the court or via electronic submission to the electronic address of the court. The court may consider any other additional evidence (oral or written), but such evidence must form part of proceedings.

The service by the clerk now may be effected by hand, e-mail, SMS, mms or any social media, such as WhatsApp, Facebook or Twitter.

If a clerk foresees any delay, then the clerk is required to approach the magistrate for directions.

The Act also makes provision that all courts now have jurisdiction where either the complainant or respondent resides, studies, carries on business permanently or temporarily within its area. This includes the area where the cause of action arose.

Provision has been made for the clerk of the court to receive applications electronically via online portal or in person.

A minor child without assistance or consent of an adult may also bring an application.

An application may be considered by the court outside of ordinary hours if a court is satisfied that a reasonable belief exists that the complainant is suffering or may suffer harm if the matter is not dealt with immediately.

The clerk of the court must capture all applications, supporting affidavits and other information in the integrated electronic repository. The clerk must immediately submit the application and supporting affidavits to court.

A magistrate must consider the application and if an application for a domestic violence safety monitoring notice is made, then both applications are considered together.

A court must satisfy itself that reasonable grounds for believing that the complainant and respondent share joint residence, and reasonable grounds exist to suspect that the respondent poses a threat to complainant’s safety. The court may then issue a domestic violence safety monitoring notice.

The domestic violence safety monitoring notice directs the Station Commander where the complainant resides to direct a South African Police Service (SAPS) member to contact the complainant at regular intervals to inquire about the complainant’s well-being via electronic service at an electronic address and visit the joint residence at regular intervals and see and communicate privately with the complainant. Where a SAPS member is prevented from seeing the complainant or unable to enter the joint residence to see and communicate with the complainant in private, the SAPS may, to overcome resistance against entry, use such force as may reasonably be required.

The words ‘undue hardship may be suffered’ are deleted and replaced with ‘complainant is suffering or may suffer harm’ because of domestic violence.

There is now also provision for an investigation by the Family Advocate or designated social worker to determine if a child needs care and protection.

The Act now provides that a warrant of arrest is issued by the magistrate the moment the interim protection order has been issued. The warrant of arrest remains on the file, until the interim protection order has been served on the respondent. The clerk serves the interim protection order and warrant of arrest on the complainant only after receiving the return of service.

If a notice to show cause is issued, the clerk must inform parties in the prescribed manner and captures written notice in the integrated electronic repository.

All service of any documents in terms of this Act are to take place not later than 12-hours if served electronically and no later than 24-hours if served in person.

The Act also makes provision for seizure of weapons. Any weapon seized must be kept by SAPS. A court must direct the clerk of the court to refer a copy of the record of evidence to the relevant Station Commander for consideration in terms s 102 of the Firearms Control Act 60 of 2000 and a copy of the record must be submitted to the National Commissioner of SAPS.

Any documents subpoenaed (book, document, or object) must be produced by 12pm on the day before proceedings.

Provision has also been made for the hearing of evidence by audio visual link.

In issuing a final order, where a notice to show cause is issued, a court must proceed to hear the matter to consider all evidence received in terms of the application and further affidavits or oral evidence as the court may direct which will form part of the record of the proceedings. Where a court finds on a balance of probabilities, that the respondent has or is committing an act of domestic violence then the court must issue a final protection order.

For variation applications, the court must be satisfied that circumstances have materially changed since the original order was made; good cause must be shown for the variation or setting aside; and proper service has to be effected on the respondent.

The court has several applicants constantly looking for their final orders, which they have lost or misplaced, and have difficulty in tracking the file. People move homes and change jobs over time and lose documents. The court will now be able to secure all documents electronically and be able to retrieve orders at a press of a few buttons.

The changes to the Act are welcomed as they will help improve its effectiveness in addressing domestic violence. An added advantage is that the process for obtaining a protection order has been simplified and made more accessible to all victims, including children.

Overall, the changes to the Domestic Violence Act help to improve protection and support to victims of domestic violence in South Africa and have strengthened the legal and social framework for addressing this pervasive problem in the country.

Mohammed Moolla BProc (UKZN) LLM (UWC) is a senior magistrate at the Wynberg Magistrate’s Court in Cape Town.

This article was first published in De Rebus in 2023 (Sep) DR 18.

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