Domestic Violence : The New Approach

Background

Domestic violence is a serious crime against society and has an unacceptably high incidence in South Africa. The number of incidents of domestic violence in which especially women, children and the elderly are the victims, appear to be continually on the increase in South Africa.

An act of domestic violence often starts a debilitating cycle of violence from which the victim find it increasingly difficult to escape. The Battered Woman's (person's) syndrome describes this in detail. This can then lead to repeated victimization and repeated offending and sometimes eventually spirals into fatality.

A National Victimisation Survey which was carried out in South Africa during 1998 made the following significant findings with regard to violent crimes: Most assaults (54%) and sexual offences (68%) occur in and around the home of the victim. Victims are most likely to know their attackers. A significant proportion of attackers are closely related to their victims (33,8%) in the case of assault and (27,9%) in the case of sexual offences.

Domestic violence as a key feature in gender-based violence is further confirmed by city surveys conducted in 1998 by various reputable organisations in Cape Town, Durban and Johannesburg. These surveys indicated that in 58,7% of cases, the abuser was the partner, lover or spouse of the victim and in 18,3% of cases the abuser was another relative of the victim. Domestic violence therefore constitutes a significant proportion of all violent crimes committed in South Africa.

Victims of domestic violence incidents are almost always the most vulnerable members of society, namely women and children. The vulnerable status of these groups of people is widely recognised and international Conventions have been drafted to improve the protection of these groups. Such conventions include the Convention on the Elimination of All Forms of Discrimination Against Women (1979) and the Convention on the Rights of the Child (1989). The South African government has ratified these two Conventions. By ratifying them, government took upon it the obligation to protect these groups. This includes protection of the right of women to equality, the promotion of their social progress and, in respect of children, their right to special care and assistance because of their physical and mental immaturity.

The Bill of Rights, as contained in chapter 2 of the Constitution, 1996 (Act No. 108 of 1996) entrenches the right of every person to equality and to freedom and security. It applies to all people in the country and requires respect for the rights of all people. It imposes a duty on the government (including the police) to take appropriate steps to ensure that the human rights of persons are respected. In doing so, the Constitution guarantees the rights contained in the Bill of Rights.

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In line with its international obligations in terms of the conventions mentioned above, as well as the obligations imposed by chapter 2 of the Constitution, Parliament has adopted the Domestic Violence Act, 1998 (Act No. 116 of 1998). The aim of the Act is to reduce the high number of incidents of domestic violence in society and to afford maximum protection to the victims of domestic abuse and uphold the rights of all persons. The Act sets out the remedies available to a victim and how the victim may gain access to help.

The Service is responsible to maintain public order and to uphold and enforce the law. Members of the Service must protect the rights entrenched in the Constitution and be impartial, respectful, open and accountable to the community in order to create a safe and secure environment for all the people in South Africa. In this regard the Service has committed itself to prevent and combat crimes against children and women and has included crimes against women and children in the Policing Priorities and Objectives of the Service over the past number of years and is likely to continue to regard such crimes as priorities in the coming years. The National Commissioner committed the Service in the fight against domestic violence.

The National Crime Prevention Strategy (NCPS) also identified Gender Violence and Crimes Against Children as crime categories raising particular concern. During November 1998, the Ministers and Directors-General of the departments forming part of the NCPS agreed that the Interdepartmental Domestic Violence Programme should be consolidated and coordinated by the secretariat for Safety and Security.

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What is Domestic Violence?

The conduct which constitutes domestic violence may be divided into different categories which include physical

•  emotional
•  psychological
•  sexual
•  and economic abuse between persons who are in a domestic relationship with one another.

• intimidation
• harassment
• stalking
• damaging of property
• entry into the residence of the victim without consent, where the parties do not share the same residence
• or, any other controlling or abusive behaviour towards a victim, where such conduct harms, or may cause imminent harm to the safety, health or well-being or the victim.

Duties of Police Officers

1. The member must first of all determine whether the complainant is in any danger and take all reasonable steps to secure the scene and to protect the complainant from any further harm.
2. Once the scene has been secured, the member must -
   (a) render such assistance to the complainant as may reasonably be required in the circumstances,
   (b) if it is reasonably possible to do so, hand a written Notice to the complainant and explain the contents of the Notice to the complainant, e.g.

(i) the right to lay a criminal charge
(ii) the right to apply for a protection order
(iii) the right to lay a criminal charge as well as apply for a protection order. It is important to inform the complainant that laying a criminal charge is not a prerequisite for applying for a protection order.

3. The Notice must be provided to the complainant in the official language of his or her choice.
4. A member must assist the complainant to find suitable shelter or make arrangements for the complainant to find suitable shelter.
5. A member must assist the complainant to obtain medical treatment or make arrangements for the complainant to obtain medical treatment.

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Specific Powers and Duties of Members in Terms of the Domestic Violence Act

1. The court may, in terms of section 7(2)(a) of the Domestic Violence Act, order a member to seize any arm or dangerous weapon in the possession or under the control of a respondent.
2. (a) A member may arrest a respondent who has contravened any prohibition, condition, obligation or order contained in a protection order . A complainant may hand the warrant of arrest together with an affidavit, wherein it is stated that the respondent contravened such protection order, to any member.
   (b) If the member is of the opinion that there are insufficient grounds to arrest the respondent, her/she must immediately hand a written notice to the respondent (Form 11), and must hand the certificate, provided for in the notice, to the respondent. The member must forward a duplicate original of this notice to the clerk of the court.
   (c) Whenever a warrant of arrest is handed to a member of the Service as contemplated in par (b), the member must inform the complainant of his or her right to simultaneously lay a criminal charge against the respondent, if applicable, and explain to the complainant how to lay such a charge. 3. A member may be ordered by the court to serve an interim or final protection order. 4. A court may order a peace officer (which include any member) in a protection order, to accompany the complainant to a specified place to assist with the arrangements regarding the collection of the personal property specified in the order. Such member must take reasonable steps to ensure the safety of the complainant during the collection of the property.

Record Keeping of Domestic Violence Cases

1. All domestic violence incidents which are reported to the police station must be recorded in the Domestic Violence Register. (At present no figures exist regarding the number of domestic violence cases reported to the Service because there is no such crime as "domestic violence". Incidents of domestic violence are included amongst figures relating to assault gbh, assault common, rape, attempted murder, pointing of a firearm, etc. The introduction of this register will ensure that this situation changes.) 2. Regardless of whether or not a criminal offence has been committed, a member must fully document every incident of domestic violence on the form entitled Report of Domestic Violence Incident. 3. Where no arrest is made or any charge laid, the member must document the reasons for not doing so in his/her Pocket Book.

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