The Domestic Violence Amendment Act: Close but no cigar?

The changes brought about by the Domestic Violence Amendment Act 14 of 2021 (DVAA) – which came into effect on 14 April 2023 – has ushered in a number of positive changes which are intended to provide much needed relief to victims of domestic violence. These, among others, include the recognition of –

• coercive behaviour;
• controlling behaviour; and
• related person abuse within the definition of domestic violence.

However, this is not the case. Whether the Act is problematic or if its implementation is the issue, is questionable.

One of the hurdles that victims of domestic violence face pertains to economic abuse. While this addition to the definition of domestic violence is a step in the right direction, its implementation has been a practical nightmare and complainants of financial abuse have left victims further traumatised by legislation than is intended to provide relief. Sadly, it is not the legislation itself that is problematic, but the implementation thereof. Where individuals lodge complaints of economic abuse, which are tied to maintenance, magistrates tend to refer these matters to the maintenance courts to avoid getting their ‘hands dirty’, so to speak. And rather than providing immediate relief, which the DVAA provides for, complainants who have already been victimised, have to wait until relief can be provided by maintenance courts. This is an unfortunate situation when one considers the sad reality that maintenance courts already face, which includes –

• numerous postponements for several reasons, which results in matters not being finalised;
• attempts for child maintenance being blocked at every turn by respondents wanting to avoid their maintenance obligations; and
• court staff being overburdened with the number of complaints that they are required to deal with.

Referring cases of economic abuse to maintenance courts is therefore sadly not the ideal solution. It only further victimises victims of domestic abuse and fails to provide them with the swift remedy, which the DVAA intended.

The second challenge posed by the new amendment Act, is seen in its failure to make provision for legal abuse. This type of abuse is characterised by use of court processes to victimise and distress complainants. This is done by intimidating them, as well as creating intentional delays, contesting judgments, withholding information, threats in terms of s 15 of the Domestic Violence Act 116 of 1998 for cost orders and switching attorneys. Legal abuse is viewed as another form of coercive control, which can be perpetrated by either the respondent or his or her legal team. With this type of abuse the same laws that are intended to protect victims are used by the respondent to abuse the complainant in order to harass and control them. Regrettably, legal practitioners are often complicit in this behaviour as they turn a blind eye to the action of their client and allow economic abuse to continue while further harassing and intimidating complainants. Because the DVAA fails to recognise this type of abuse, it often goes unchecked and often continues for years. What is further regrettable is that legal practitioners who are complicit in this type of abuse, cannot be held accountable because their relationship with the complainant does not qualify as a domestic relationship. That is not unless the attorney is recognised as a third-party actor, in terms of the DVAA, who is enabling further abuse. Sadly, the complainant, who is already traumatised by years of abuse from the respondent, may not have the capacity to seek legal recourse against the legal representative(s) involved as well.

In a country with extremely high rates of domestic violence and gender-based violence one would hope that there would be more protection available to victims. Sadly, the DVAA, which is a step in the right direction, may not provided the relief that it intended. Had it done so, there would have been a marked decrease in domestic violence statistics, and this is not the case. Perhaps providing relief to victims in cases of economic abuse should be the next step, rather than simply passing the buck.

Carmel Jacobs LLB (UWC) LLM (UP) PhD (Leiden) is a Senior Lecturer
at the Department of Private Law at the University of the Western Cape.

This article was first published in De Rebus in 2024 (March) DR 4.