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By Dr Fareed Moosa
Domestic violence is a brutal onslaught against constitutional values and the fundamental right to freedom and security of the person. In S v Baloyi (Minister of Justice and Another Intervening) 2000 (2) SA 425 (CC), Sachs J poignantly held at para 11: ‘What distinguishes domestic violence is its hidden, repetitive character and its immeasurable ripple effects on our society and, in particular, on family life. It cuts across class, race, culture and geography, and is all the more pernicious because it is so often concealed and so frequently goes unpunished’.
Accordingly, the Domestic Violence Act 116 of 1998 (the Act) serves important objectives. It must be understood against the backdrop of its social context and legal purpose. In terms of the Act’s preamble, it aims ‘to afford the victims of domestic violence the maximum protection from domestic abuse that the law can provide’. It does so by providing for interim and final protection orders under ss 5 and 6 respectively, and by creating a mechanism in s 8 for their enforcement through arrest. To bolster the efficacy of this protection, s 7(7) prohibits a court from refusing a protection order, or other competent relief, ‘merely on the grounds that other legal remedies are available to the complainant’.
In Omar v Government of the Republic of South Africa and Others (Commission for Gender Equality, Amicus Curiae) 2006 (2) SA 289 (CC), the minutiae of the Act’s scheme were outlined at paras 20 – 31. The Act is geared to ‘emergency situations’ (para 38). In terms of s 4, a ‘complainant’ in a ‘domestic relationship’ with a respondent may, by way of affidavit, apply to ‘court’ for a ‘protection order’ owing to the commission of an act of ‘domestic violence’ by the respondent. In this context, ‘complainant’, ‘court’, ‘domestic relationship’, ‘domestic violence’ and ‘protection order’ bear their meanings in s 1 of the Act.
In terms of s 5(1), the court must expeditiously apply its mind to an application for interim relief (‘as soon as is reasonably possible consider an application’) and, to this end, may ‘consider such additional evidence as it deems fit, including oral evidence or evidence by affidavit, which shall form part of the record of the proceedings’. Under s 5(2), the court must issue an interim protection order if ‘satisfied that there is prima facie evidence that –
(a) the respondent is committing, or has committed an act of domestic violence; and
(b) undue hardship may be suffered by the complainant as a result of such domestic violence if a protection order is not issued immediately’.
For the legal meaning and effect of ‘satisfied’, see Breitenbach v Fiat SA (Edms) Bpk 1976 (2) SA 226 (T) at 228A-B; Income Tax Case no 1470 (1989) 52 SATC 88 (T) at 92; Farjas (Pty) Ltd and Another v Regional Land Claims Commissioner, KwaZulu-Natal 1998 (2) SA 900 (LCC) at para 41.
Section 5(2) is couched in peremptory terms. The duty on a court operates despite a respondent’s audi alteram partem rights not being respected. For the distinction between directory and peremptory provisions (see Prinsloo v Van der Linde and Another 1997 (3) SA 1012 (CC) at para 13; and MY Summit One: Farocean Marine (Pty) Ltd v Malacca Holdings Ltd 2005 (1) SA 428 (SCA) at 439C).
When issuing an interim protection order, a court must prohibit the respondent from performing any act listed in s 7(1). Under s 7(2), it may also impose conditions. Although the Act is not prescriptive as to the nature of the conditions, it provides that a condition must be such that it is ‘reasonably necessary to protect and provide for the safety, health or well-being of the complainant’. This includes, inter alia, the seizure of a firearm or dangerous weapon in the respondent’s possession or control. Under s 7(3), if a court prohibits a respondent from entering a residence shared with the complainant under s 7(1)(c), it may also oblige the former to discharge the rent or mortgage payments pertaining to such residence but only after ‘having regard to the financial needs and resources of the complainant and the respondent’.
Under s 5(3), an interim protection order must be served on the respondent in the manner prescribed by ministerial regulation issued under s 19 of the Act. Under s 5(6), an interim protection order ‘shall have no force and effect until it has been served’. On the return date, a court may discharge the interim protection order or may issue a final protection order under s 6 with or without conditions or obligations under ss 7(2) and (3) respectively (see Omar (op cit) at para 38).
Section 7(4) reads: ‘The court may order the respondent to pay emergency monetary relief having regard to the financial needs and resources of the complainant and the respondent, and such order has the effect of a civil judgment of a magistrate’s court’ (my italics). The conjunction ‘and’ has the effect that the power in s 7(4) cannot be exercised with reference only to the needs and means of one party (but both) (see Maphango and Others v Aengus Lifestyle Properties (Pty) Ltd 2012 (3) SA 531 (CC) at para 50). Section 7(4) is also couched in permissive language. A court has discretion (‘may order’) whether to grant the relief concerned. For the circumstances when ‘may’ can have the effect of ‘shall’ (see South African Police Service v Public Servants Association 2007 (3) SA 521 (CC) at paras 14 – 16).
In the context of s 7(4), ‘emergency monetary relief’ bears its meaning as defined in s 1, namely, ‘compensation for monetary losses suffered by a complainant at the time of the issue of a protection order as a result of the domestic violence, including –
(a) loss of earnings;
(b) medical and dental expenses;
(c) relocation and accommodation expenses; or
(d) household necessities’.
Thus, emergency monetary relief is compensatory in nature. ‘Including’ is a word of extension; its effect is that the losses listed are not a numerus clausus (see S v Dzukuda and Others; S v Tshilo 2000 (4) SA 1078 (CC) at para 9). The complainant bears the burden to show a causal nexus (‘as a result’) between the commission of an act of domestic violence by a respondent and the incurrence of a present (not future) loss. By parity of reasoning with that in Narodien v Andrews 2002 (3) SA 500 (C), emergency monetary relief cannot be granted as a ‘stand-alone’ order. It is relief ancillary to a protection order prohibiting the performance of an act mentioned in s 7(1).
The questions arising are:
In law, interim orders are, generally, not appealable (see Machele and Others v Mailula and Others 2010 (2) SA 257 (CC) at paras 21 – 22). An interim protection order under s 5 of the Act is not appealable. To challenge such order, a respondent can appear on the return date and, under s 6(2) of the Act, oppose the granting of final relief; alternatively, the respondent can, under s 5(5), anticipate the return date. Since an interim protection order is not appealable and an order under s 7(4) is appealable, it appears that emergency monetary relief is not relief competent to be granted on an interim basis under s 5 of the Act. The compensatory nature of such relief reinforces this view.
A further consideration that appears to militate against the granting of emergency monetary relief under s 5, as opposed to s 6 of the Act, is that interim protection orders are, generally and for good reason, granted without prior notice to a respondent. In Omar (op cit) the constitutionality of this practice was upheld. The crux of the court’s reasoning in rejecting the appellant’s challenge on the basis of his s 34 fundamental right of access to court, is that ‘notice to the respondent – the very source of the threat of violence – would defeat the object of protection for the complainant’. While this justification holds true for protective relief contemplated in s 7(1) of the Act, as regards possible future violence being perpetrated against the complainant by the respondent who becomes aware of the court application, it would not, I submit, hold true for compensatory relief under s 7(4). Such relief is not designed to, nor does it, protect a complainant against future harm from a respondent. Rather, it seeks to compensate for financial losses already suffered.
A further consideration favouring the view that relief under s 7(4) may accompany orders under s 6 but not necessarily those under s 5 of the Act, is that emergency monetary relief is enforceable by a writ of execution. This is so unless its operation is suspended by agreement inter partes, or by a court on application. Its operation is not suspended by a respondent anticipating a return date or appearing on a return date to oppose final protective relief. As stated above, s 7(4) orders are, ex lege, final in effect. Thus, there is nothing to oppose in relation thereto. A respondent would either have to appeal or review such order under s 16, or apply to have it set aside under s 10 of the Act on ‘good cause’ (for the meaning of ‘good cause’, see Silber v Ozen Wholesalers (Pty) Ltd 1954 (2) SA 345 (A) at 352 – 353).
I submit that the approach contended for here accords, with the directive in s 39(2) of the Constitution, namely, legislative interpretation through the prism of the ‘spirit, purport and objects of the Bill of Rights’ (see F Moosa ‘Understanding the “spirit, purport and objects” of South Africa’s Bill of Rights’ (2018) 4 HSOA Journal of Forensic, Legal and Investigative Sciences at 1). My approach balances, on the one hand, the rights of victims of domestic violence to compensation suffered by reason of such violence and, on the other, the audi alteram partem, fair trial rights of a respondent engrained in s 34 of the Constitution, which ought to be respected before a final judgment for compensatory relief is granted.
The word ‘emergency’ in ‘emergency monetary relief’ suggests that the legislature viewed compensatory relief under s 7(4) as urgent and ought to be available to a complainant on an expedited basis. This apparent intention ought to be given effect to, but in a manner that does not unduly limit a respondent’s fundamental rights to fair judicial proceedings.
Applications under s 7(4) must be fast-tracked. In practice, this may be difficult, particularly in busy domestic violence courts with congested court rolls, large case backlogs, and few magistrates. A suggested approach may be the following: Under s 6(2), applications under the Act can be decided on affidavit. Oral evidence is not compulsory. If an interim protection order is granted under ss 5(2) read with 7(1), two return dates can then be issued. A longer one for the main relief and a shorter one for the emergency monetary relief. As part of the interim protection order, the court may then direct the respondent to file an answering affidavit in relation to the s 7(4) claim within a truncated time period. It may also direct that a complainant can file a reply within a specified period. On the shorter return date, the court can then, on affidavit, determine whether a complainant is entitled to compensation and, if so, the quantum thereof. Brief submissions can also be received from the parties or their representatives, as occurs in High Courts for r 43 applications.
Dr Fareed Moosa BProc LLB (UWC) LLM (UCT) LLD (UWC) is the head of the Department of Mercantile and Labour Law at the University of the Western Cape in Cape Town.
This article was first published in De Rebus in 2020 (March) DR 15.
