WRITTEN BY NATALIE VENTER
30 NOVEMBER 2022

The occurrence of COVID-19 and the National Lockdown in South Africa brought to light a different epidemic in South Africa, namely Domestic Violence. Thankfully the legislature stood up for the task and began drafting and implementing a new Act, namely the Domestic Violence Amendment Act 14 of 2021, which extends the protection afforded in terms of its older comrade, the Domestic Violence Act 116 of 1998. This means that those in domestic relationships need to be more careful of their conduct as more of their actions can now be considered domestic violence and thereby punishable by law.

Before delving into which acts constitute Domestic Violence under this act, it is important to outline that domestic violence can only exist within a domestic relationship.

What Constitutes a Domestic Relationship under the Domestic Violence Act?

A Domestic Relationship is defined in Section 1 of the First Act as a relationship between the two parties in terms of which:

“(a) They are or were married to each other, including marriage according to any law, custom or religion;

(b) they (whether they are of the same or of the opposite sex) live or lived together in a relationship in the nature of marriage, although they are not, or were not, married to each other, or are not able to be married to each other;

(c) they are the parents of a child or are persons who have or had parental responsibility for that child (whether or not at the same time);

(d) they are family members related by consanguinity, affinity or adoption;

(e) they are or were in an engagement, dating or customary relationship, including an actual or perceived romantic, intimate or sexual relationship of any duration; or

(f) they are persons in a close relationship that share or recently shared the same residence;”

What constitutes Domestic Violence in terms of the Domestic Violence Act 116 of 1998 (hereinafter referred to as “The First Act”)?

Once it has been established that a domestic relationship exists between the parties, there are several acts of Domestic Violence in terms of The First Act, which are worth mentioning before establishing what has changed in terms of the Domestic Violence Amendment Act 14 of 2021.

The following are acts of domestic violence in terms of The First Act:

  • Physical Abuse – which is defined as any act or threatened act of physical violence;
  • Sexual Abuse – which is defined as any conduct that abuses, humiliates, degrades or otherwise violates the sexual integrity of the complainant;
  • Emotional, verbal and psychological abuse – which is defined as a pattern of degrading or humiliating conduct towards a complainant, including repeated insults, ridicule, name-calling, repeated threats to cause emotional pain or the repeated exhibition of obsessive possessiveness or jealousy constituting a serious invasion of the complainant’s privacy, liberty, integrity or security.
  • Economic Abuse – which is defined as the unreasonable deprivation of economic or financial resources to which the complainant is entitled to under law or which the complainant requires out of necessity, including housing.
  • Intimidation – which is defined as uttering or conveying a threat.
  • Harassment – which is defined as a pattern of conduct which induces the fear of harm, including repeatedly watching or loitering outside the home or work premises of the complainant, making telephone calls repeatedly, or sending messages, electronic mails or letters to the complainant repeatedly.
  • Stalking – which is defined as repeatedly following, pursuing or accosting the complainant.
  • Damage to Property – which is defined as the wilful damaging or destruction of property belonging to the complainant.
  • Entry to the complainant’s residence without consent where the parties do not share the same residence; and
  • Any other controlling or abusive behaviour towards the complainant.

What has the Domestic Violence Amendment Act 14 of 2021 (hereinafter referred to as “The New Act”) Changed?

Most notably, the New Act has added new acts of domestic violence to those outlined above in terms of The First Act. All the categories remain in force whilst the following are added to the list:

  • Sexual Harassment – which is defined as any unwelcome sexual attention from an offending party who knows or should have known that the attention is unwelcome. Alternatively, it is unwelcome explicit or implicit behaviour or suggestions made, sent or delivered to the complainant which are of a sexual nature or regarding the complainant’s sexual orientation. It is further defined as the implied or express reward offered to the complainant if they comply with a sexually orientated request; or the threat of harm should the complainant refuse to comply with such a request.
  • Related Person Abuse – which is defined as the threat made to the complainant to endanger the person or property of a related person or vice versa.
  • Spiritual Abuse – which is defined as advocating hatred against the complainant due to their religious beliefs, which in turn constitutes incitement to cause harm to the complainant, or preventing the complainant from exercising their constitutional right to freedom of conscience, religion, thought, belief and opinion. It is further defined as manipulating the complainant’s religious belief to cause the complainant to believe that the abuse received is justified in terms of their religion.
  • Elder Abuse – which is defined as the abuse of an older person as per the Older Persons Act 13 of 2006.
  • Coercive Behaviour – which is defined as compelling or forcing a complainant to abstain from doing anything which they have a lawful right to do or abstain from doing.
  • Controlling Behaviour – which is defined as behaviour towards a complainant that causes the complainant to be dependent or subservient to the offending party.
  • Exposing a child to domestic violence – which is defined as intentionally causing a child to see or hear domestic violence or to experience the effects thereof.

What Remedies are Available to Victims of Domestic Violence?

Under both The First Act and The New Act, a complainant is entitled to apply for an interim protection order against the offending party. The complainant should approach their nearest court, alternatively, the court nearest to where the offending party resides or where the incident of domestic violence occurred.

How does a Victim of Domestic Violence apply for a Protection Order at Court?

The complainant shall be required to go into detail about the incident of abuse on the prescribed application form provided by the court. It is further advisable that the complainant attaches any proof of the alleged abuse, including but not limited to photographs, recordings or medical reports. Once the interim order is granted, the Police Station within the area of the issuing court, will serve the order on the offending party. A return date will be provided by the court to enable the offending party to present their defence, and the presiding officer shall, after hearing both parties’ versions, decide whether to make the order final.

What Happens if an Abuser Ignores the Protection Order from Court?

It is important to note that whilst the interim order or final order is in effect, should the offending party breach the terms thereof, the complainant is entitled to call their local police station, who, may then either arrest the offending party or issue a warning to appear in court for contravention of the protection order.

Should either the complainant or the court press criminal charges in respect of an act of domestic violence under the New Act, the police would be obliged to carry out the arrest of the offending party. The offending party has a right to apply for bail; however, amendments under The New Act make it more challenging to apply for bail.

How did the Domestic Violence Amendment Act 14 of 2021 Change the Process of Applying for Bail on Criminal Charges Relating to Domestic Violence?

Under The First Act, an act of domestic violence such as assault could be dealt with as part of an after-hours bail application. In terms of the amendments brought about by The New Act, this is no longer possible, and the offending party has to be brought to court within 48 hours of their arrest, where they will then be entitled to apply for bail.

The format of the application has been changed from an informal bail application to that of a formal bail application similar to that of a serious offence in terms of Schedule 5 of the Criminal Procedure Act 51 of 1977. The presiding officer is, however, afforded the discretion to revert back to an informal application should they find it warranted.

It is evident that the legislature has taken extraordinary steps to further protect the vulnerable in society. This is not limited to only women and children, as men can be victims of abuse too. As always, there are, unfortunately, those who misuse the law for their own gratification and revenge. We urge our clients to keep all of the above categories in mind before engaging in arguments with their partners because, with the wider scope of domestic violence acts which have been introduced, it is all the more likely that one may find themselves on the wrong side of the law.

Our Domestic Violence specialist attorneys are experienced in domestic violence matters, both in terms of protection orders as either the applicant or respondent, as well as matters in which criminal charges have been opened against either party. Contact us today should you require assistance with Domestic Violence related issues.

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DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE