By Siyabonga Sibisi

The Domestic Violence Act 116 of 1998 (the Act) was regarded as a step in the right direction towards acknowledging that violence against the vulnerable, especially women and children, was an issue demanding immediate and efficient attention. This Act succeeded the defunct Prevention of Family Violence Act 133 of 1993. The purpose of the Act, inter alia, is to afford victims of domestic violence maximum protection of the law. Nearly 20 years later, we can ask ourselves: What has been achieved?

At the inception of the Act a handful of cases were reported and to date the numbers continue to increase. In Omar v Government of the Republic of South Africa and Others (Commission for Gender Equality, Amicus Curiae) 2006 (2) SA 289 (CC) the appellant challenged, inter alia, the constitutional validity of s 8 of the Act, in particular the issuing of a protection order accompanied by a warrant of arrest. He argued that this infringed on the right to freedom and security of person, a fair trial and access to courts as it enabled the holder of a warrant to summarily cause an arrest. The court rejected the applicant’s argument. It held that the operation of a warrant of arrest was suspended on condition that the order is complied with. Clearly this is not what was envisaged by the drafters of statutes. The preamble of the Act states that the purpose of the Act, inter alia, is to uphold the international obligation to end violence against women and children. However, statistics show that South Africa is failing in its role as cases of domestic violence continue to be reported. Is the Act a failure? A study of selected key provisions of the Act might provide insight.

The Act

The Act provides for the obtaining of protection orders by victims of domestic violence. Applying for a protection order is a civil process. Before one can obtain a protection order, certain requirements must be met.

• First, the applicant (victim) must show that he or she is in a domestic relationship with the respondent.
• Secondly, once it has been established that a domestic relationship does exist between the parties, the applicant has to show that an act of domestic violence has occurred. The concepts ‘domestic relationship’ and ‘domestic violence’ as defined in s 1 of the Act are defined in broad terms.
• Once an applicant has established the above, he or she may approach a police station or a court of law to apply for a protection order. There is an express duty on police officers to assist victims of domestic violence (s 2) by referring them to a court responsible for protection orders, which usually forms part of the family courts section, as well as to inform them of their right to institute criminal proceedings. This duty was stressed by the court in Khanyile v Minister of Safety and Security and Another 2012 (2) SACR 238 (KZD) at paras 38 and 39.
• While applications for protection orders are by way of an affidavit, in practice the applicant approaches the clerk of the court who will talk to the applicant regarding the process. The applicant will relate his or her case to the clerk of the court who will take down what the applicant is saying.
• Once this has been done, the clerk of the court will cause that the respondent be served with papers calling on him or her on a date determined by the court to show cause why the applicant should not be granted a final protection order. For purposes of service it is important that the applicant has the respondent’s particulars, however, this is not an issue as the papers are usually served by the police with the assistance of the applicant.
• As proof that the news reached the respondent the return of service must be filed, failing which the whole process might be invalid.

Interim protection order

Section 5 provides that the court may issue an interim protection order if it is satisfied that the respondent is or has committed an act of domestic violence and undue hardship may result on the applicant, if an order is not issued. The decision to issue an interim protection order is at the discretion of the court. In Omar (op cit) the Constitutional Court held that the issue of interim protection orders without notice to the respondent was not a violation of the right to a fair trial. The court observed that the right to a fair trial s 35(3) applies to an accused. A respondent is not an accused and, therefore, it is incorrect to say that he is not afforded a fair trial.

The interim protection order must be accompanied by a stayed warrant of arrest (s 8(1)(a)) (see also Greenberg v Gouws and Another 2011 (2) SACR 389 (GSJ) at para 25).

A copy of the interim protection order must be served on the respondent calling on him or her – on a date determined by the clerk of the court – to show cause why the order should not be made final (s 5(3) – (7)).

Failure to serve the interim protection order renders it invalid (s 5(6)). In summary there are two set-backs to an interim protection order:

• First, to be effective, it must be served on the respondent.
• Second, it is only valid until the return date (s 5(5)).

Return date

On the return date the applicant will start by stating his or her case to the court. The respondent will respond by stating his or her side of the case. The standard of proof is on a balance of probabilities (Omar (op cit) at para 25). If the applicant makes a case, the order will be made final. If the respondent makes a case, the order will not be made final and the interim order will fall as if it never existed.

Final protection order

The final protection order need not be served on the respondent since he or she is also present in court when the court confirms the order. However s 6(5) requires that it be served. It happens on numerous occasions that the respondent ignores the call to oppose confirmation of the protection order. This does not exonerate the applicant from making a case against the respondent. The absence of the respondent only eases the standard of proof expected from the applicant.

It also happens that both parties do not attend the proceedings on the return date – this is not unusual, especially where there is a conjugal relationship between the parties. In such a case the order will not be confirmed.

If the applicant makes out a case and the order is confirmed, a warrant of arrest must be given to the applicant.

Protection order proceedings

Applications for protection orders are catered for by ss 4 and 6. Section 4 deals with locus standi. However, s 14 read with ss 4(2) and 6(3) provides that any of the parties may be represented by legal representatives. If the parties both appear in person, the proceedings are less formal and short; however, once legal representatives are involved the proceedings are prolonged. An unfair situation usually occurs if only one of the parties is represented. In such a case the mere presence of a legal representative may intimidate the unrepresented party. This is worse if the represented party is the respondent. More so, in light of s 6(3), which specifically provides that a respondent may not cross-examine the applicant directly; he or she may only do so through the court, however, his or her legal representative may cross-examine him or her directly. It is conceivable that some applicants may prefer being cross-examined by the respondent rather than his legal representative.

Effecting an arrest for breach

If an act of domestic violence is committed by the respondent after an interim order or a final order has been issued, the applicant may take the protection order, together with the warrant of arrest, and approach the nearest police station. At this stage the proceedings cease to be quasi-civil.

The applicant becomes the complainant and the respondent becomes the accused or the suspect.

The complainant has to make a statement in terms of s 8(4)(a) to the effect that there has been a breach or violation of a term of the protection order. Section 8(4)(b) provides that if, based on the complainant’s statement, it appears to a police officer that there is reasonable ground that the complainant may suffer imminent harm as a result of the alleged breach, the police officer must arrest the suspect in execution of a warrant.

If there are insufficient grounds to arrest, the police officer must warn the suspect to appear in court (s 8(4)(c)). ‘Reasonable grounds’ has been interpreted to mean what is reasonable by a reasonable man’s standard. The grounds must be ‘objectively sustainable’.

It is clear from the above that executing a warrant of arrest for breach of a protection order requires a careful assessment of facts. There is usually no time to assess facts or ascertain whether, based on what has been said by the complainant, it can be said that reasonable grounds exist to believe that the complaint will suffer imminent harm if the suspect is not arrested. A series of reported cases show that the police do not assess the truth in the complainant’s case. Their approach is to arrest the suspect immediately. This often results in suits against the state for unlawful arrest. In the words of Murugasen J in Khanyile (op cit):

‘The lack of training and the failure to inform police officers of the provisions of the Act, impacts adversely on their appreciation of their responsibility and ability to balance the rights of the complainant with the rights of the respondent … public resources are depleted as a result of the litigation which emanates from the unlawful conduct of the police.’

Conclusion

Whereas the Act emphasises the importance of affording victims of domestic violence maximum protection, it fails to safeguard the state against litigation resulting from the unlawful conduct of the police. This lacuna can be avoided if police are properly trained to assess matters, particularly when to detain. It is, therefore, doubtful whether the Act is the ticket to a domestic violence-free society.

Siyabonga Sibisi LLB (UKZN) is a candidate attorney at the Durban Justice Centre.

This article was first published in De Rebus in 2016 (May) DR 22.