Domestic Violence : The New Approach
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
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
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
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
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The conduct which constitutes
domestic violence may be divided into different categories which
In addition to the above,
conduct between persons who are in such a relationship which,
according to the Act, also qualifies as domestic violence
and economic abuse between
persons who are in a domestic relationship with one another.
The new Act sets out duties for
the police official at the scene of domestic violence or when a
domestic violence case is reported.
damaging of property
entry into the residence of the
victim without consent, where the parties do not share the same
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 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.
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
(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.
The Notice must be provided to the complainant in the
official language of his or her choice.
A member must assist the complainant to find suitable shelter
or make arrangements for the complainant to find suitable
A member must assist the complainant to obtain medical
treatment or make arrangements for the complainant to obtain
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- 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.
- (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.
- 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
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
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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