![New Domestic Violence Amendment Bill [B20-2020]](https://www.divorcelaws.co.za/uploads/1/2/1/6/12166127/editor/81768281-l.jpg?1622524602)
Domestic Violence and Gender-Based Violence (GBV) in particular – is possibly the greatest societal plague of modern-day South Africa. To emphasize the nature and impact of domestic violence in South Africa, the Constitutional Court has mentioned that:
"All crime has harsh effects on society. What distinguishes domestic violence is its hidden, repetitive character and its immeasurable ripple effects on our society and 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" (S v Baloyi 86 2000 (1) BCLR 86 (CC), para 11).
In reaction to this scourge, government not too long ago begun steps to improve the laws regulating GBV and the procedures for getting protection orders. This incorporated launching the Domestic Violence Amendment Bill [B20-2020] ("the Bill"), sought to modify the Domestic Violence Act 116 of 1998 ("the Old Act") and culminated in the promulgation of the The Domestic Violence Amendment Act 14 of 2021 ("the New Act").
The New Act introduces important amendments to the Old Act. The new Act includes new definitions like coercive and controlling behaviour. The Act broadens the existing definition of Domestic Violence to include for example spiritual abuse, elder abuse, and coercive and controlling behaviour.
Another big change is that victims of domestic violence can now apply for protection orders electronically without having to go to court. Section 4(1)(bb) of the New Act provides that any complainant may, on an ex parte basis, apply to a court for a protection order. The application must be lodged to the clerk or can be submitted by sending the application to an electronic address (email address) of the court who has jurisdiction to hear the matter. This change will undoubtedly lessen the burden on complainants who are seeking urgent protection.
The New Act amended the old Act so as to:
The New Definition of a Domestic Relationship – Section 2(h)
A domestic relationship means a relationship between a complainant and a respondent in any of the following ways:
(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 share or recently shared the same residence, premises or property within the preceding year.
The New Definition of Domestic Violence – Section 2(i)
The principle of Domestic Violence has been significantly improved. It is reassuring to mention a broadening of types of “domestic violence” that incorporate the abuse of an elder, or exposure of a child to a violent domestic setting in any of the mentioned categories. Sexual Harassment is currently considered as a separate mentioned category that contain sub-categories.
Domestic violence is now defined to include:
(a) physical abuse;
(b) sexual abuse;
(c) emotional, verbal and or psychological abuse;
(d) economic abuse;
(e) intimidation;
(f) harassment;
(g) [stalking] spiritual abuse;
(h) damage to property;
(hA) elder abuse;
(hB) coercive behaviour;
(hC) controlling behaviour;
(hD) exposing or subjecting children to behaviour listed in (a) to (hC); (i) entry into the complainant’s or a related person’s— (i) permanent or temporary residence without his or her consent, where the parties do not share the same residence; or (ii) workplace or place of study, without his or her consent, where the parties do not share the same workplace or place of study; or (j) any other controlling or abusive behaviour towards a complainant, where such behaviour harms, or may cause imminent inspires the reasonable belief that harm may be caused to the safety, health or wellbeing of the complainant or a related person.
The New Act also defines elder abuse as “the abuse of an older person as contemplated in the Older Persons Act.” The Older Persons Act 13 of 2006 makes the abuse of older persons a punishable offence. The New Act has now extended the protection from domestic violence to the elderly as well.
Spiritual Abuse – Section 2(w)
Spiritual as now a distinct category of abuse. The addition of spiritual abuse as a practice, or the abnegation thereof so as to control and dominate a person indicates that legal professionals will need to consistently familiarize themselves with the cultural mechanics of the parties’ individual backgrounds, as well as the factual matrix in which the so-called conduct is said to be abusive. Couples who come from culturally distinctive backgrounds can find themselves adopting different cultural practices insofar as how weddings, funerals and the birth of children are concerned. This can prove upsetting to the weaker party who is simultaneously financially dependent and emotionally coerced into forgoing her own practices in favour of the abuser’s practices.
Spiritual abuse is defined as:
(a) ridiculing or insulting the complainant’s religious or spiritual beliefs;
(b) preventing the complainant from practising his or her religious or spiritual beliefs; or
(c) using the complainant’s religious or spiritual beliefs to control, manipulate or shame him or her, including using religious texts or beliefs as a pretext to justify, minimize or rationalize abusive behaviour.
Physical Abuse of Children – Section 2(s)
Physical abuse of children is also included in the New Act. Whenever the physical abuse of children is observed in the application, legal practitioners must take care to align themselves with the meaning of “abuse” as ascertained in the Children’s Act 38 of 2005. The factual matrix of the alleged abuse must then be evaluated alongside the definition of “abuse” in the Children’s Act to prove physical abuse under the New Act . The New Act defines physical abuse as any act or threatened act of physical violence towards a complainant or a related person or, in the case of a complainant who is a child, includes abuse as defined in section 1 of the Children’s Act, 2005 (Act No. 38 of 2005)
Emotional Abuse – Section 2(m)
Emotional, verbal and or psychological abuse’ means [a pattern of] degrading or humiliating conduct towards a complainant or a related person, including (a) repeated insults, ridicule or name calling; (b) [repeated] threats to cause emotional pain; or (c) the repeated exhibition of obsessive possessiveness or jealousy, which is such as to constitute a serious invasion of the complainant’s or a related person’s privacy, liberty, integrity or security; or (d) inducing fear.
Entering a Victim’s Workplace or Residence
In addition, the New Act regards entering the victim’s place of work or residence or temporary residence without consent, as a distinct act of abuse which can be claimed in application proceedings. This must come as some relief to victims who are the subject of stalking and harassment occasioned by the bully at the workplace, as this order will guard them from the embarrassment, shame, and derision of their co-workers, and offers, at the very least in short-term measure, a breathing space for sufferers who usually live-in fear.
Harassment – Section 2 (o)
Harassment means directly or indirectly engaging in a pattern of conduct that induces the fear of] the respondent knows or ought to know:
(a) causes harm or inspires the reasonable belief that harm may be caused to a the complainant or a related person by unreasonably including— (a) (i) repeatedly following, watching, pursuing or accosting the complainant or a related person, or loitering outside of or near the building or place where the complainant or a related person resides, works, carries on business, studies or happens to be;
(b) (ii) repeatedly making telephone calls or inducing another person to make telephone calls to engaging in verbal, electronic or any other communication aimed at the complainant or a related person, by any means whether or not conversation ensues; or
(c) (iii) repeatedly sending, delivering or causing the delivery of letters, telegrams, packages, facsimiles, electronic mail, texts, photos, videos, recordings or other objects to the complainant or a related person, or leaving them where they may be found by, given to, or brought to the attention of, the complainant or a related person; or
(b) amounts to sexual harassment of the complainant or a related person.
Intimidation – Section 2(q)
Intimidation means uttering or conveying a threat to, or causing a complainant or a related person to receive a threat, which induces fear of imminent harm.
Sexual Abuse – Section 2(u)
The term sexual abuse in the New Act has been wholly substituted and realigned with the description as found in the Criminal Law (Sexual Offences and Related Matters) Act 32 of 2007. Subsequently, while emotional, verbal, and psychological abuse in the Old Act had to be alleged in one cluster, the removal of the word “and” and its substitution with the word “or” in the New Act broadens the flexibility of scope in applications, particularly those in which insults, and humiliation predominate the status quo of the relationship. Sexual abuse is defined in the New Act as any conduct that abuses, humiliates, degrades, or otherwise violates the sexual integrity of the complainant or a related person, whether or not such conduct constitutes a sexual offence as contemplated in the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (Act No. 32 of 2007) or, in the case of a complainant who is a child, constitutes sexual abuse as contemplated in the Children’s Act, 2005.
Sexual Harassment – Section 2(v)
Sexual harassment is defined in the New Act as any--
(a) unwelcome sexual attention from a person in a domestic relationship with the complainant who knows or ought reasonably to know that such attention is unwelcome;
(b) unwelcome explicit or implicit behaviour, suggestions, gestures, messages or remarks of a sexual nature towards the complainant or a related person that have the effect of offending, intimidating or humiliating the complainant in circumstances, which a reasonable person having regard to the circumstances would have anticipated that the complainant would be offended, intimidated or humiliated; (c) implied or expressed promise of reward to the complainant for complying with a sexually oriented request; or
(d) implied or expressed threat of reprisal or actual reprisal made to the complainant for refusal to comply with a sexually oriented request.
Weapon – Section 2(y)
The New Act has produced an extended meaning of “weapon” to entail dangerous objects or those capable of creating dangerous bodily harm. This must relieve the difficulties encountered in the finalization of interim orders. Weapon is defined in the New Act as;
(a) any airgun, ammunition, imitation firearm, muzzle loading firearm, firearm or handgun as defined in section 1 of the Firearms Control Act, 2000 (Act No. 60 of 2000); or
(b) any object, other than that which is referred to in paragraph (a), which is likely to inflict grievous bodily harm or a dangerous wound, if it were used to commit an assault.
Coercive and Controlling Behaviour – Section 2(c) and (d)
The New Act broadens the idea of domestic abuse in a relationship by the introduction of two new definitions: “coercive behavior” and “controlling behavior.” Coercive behavior is described as abusive conduct or acts of force, intimidation or undue pressure intended to cause a complainant or a related person to act, not to act, or be subjected to certain acts against his or her will. Controlling behavior is described as causing the complainant or a related person to be dependent on or subordinate to the respondent by:
(a) isolating him or her from sources of support;
(b) exploiting his or her resources for personal gain;
(c) depriving him or her of the means needed for independence, resistance, or escape; or
(d) regulating his or her everyday behaviour. It needs to be noted that this alleged behavior must be accompanied by the motivation of the belief in the victim that harm will be caused.
Economic Abuse – Section 2(j)(a) and (b)
Economic abuse includes:
(a) the unreasonable deprivation of economic or financial resources to which a complainant or a related person is entitled under law or which the complainant or a related person requires out of necessity, including household necessities for the complainant or a related person, and mortgage bond repayments or payment of rent in respect of the shared residence or accommodation; or
(b) the unreasonable disposal of household effects or other property in which the complainant has an interest.
Emergency Monetary Relief – Section 2(l)
Emergency monetary relief means compensation for monetary losses suffered by a complainant before or at the time of the issue of a protection order as a result of the domestic violence, including:
(a) loss of earnings;
(b) medical, optical, [and] dental and related expenses;
(c) relocation and accommodation expenses; or
(d) household necessities;
(e) educational expenses; or
(f) psychosocial services and counselling.
Reporting of Domestic Abuse – Section 2(B)
The most debatable suggested amendment in the New Act is a provision that would make it compulsory for adults who become aware that an act of domestic violence has been committed against another adult, to submit such knowledge to either a social worker or the police, failing which they will be guilty of a criminal offence. The New Act states than adult person who:
(a) has knowledge or a reasonable belief or suspicion that an act of domestic violence has been committed against a child, a person with a disability or an older person; or
(b) has knowledge that an act of domestic violence has been committed against an adult in a domestic relationship, must report such knowledge as soon as possible to a social worker or the South African Police Service.
The report must be:
(a) in the prescribed form and must set out the reasons for such knowledge, belief, or suspicion; and
(b) submitted in the prescribed manner to a social worker or the South African Police Service.
A person referred who makes the report in good faith, is not liable to civil, criminal or disciplinary action on the basis of the report, despite any law, policy or code of conduct prohibiting the disclosure of personal information; and is entitled to have his or her identity kept confidential, unless the interests of justice require otherwise. A person who fails to comply with subsection, is guilty of an offence.
Although the advent of this provision is well-intended, it has unsurprisingly been met with critique from a variety of quarters. The problems about the proposed amendment are diverse, but many of the typical criticisms are that adult victims of domestic violence would be:
(a) denuded of their discretionary capacity to make their very own decisions and exercise their independent freewill (i.e. by selecting to either report or not report any case of domestic violence);
(b) unintentionally exposed to potential retaliatory harm by the perpetrator (who would most likely pin the blame on the victim for doing the report); and
(c) significantly less prepared to report instances of domestic violence, if the person to whom they make the report is required to report and share the confidential information shared as part of the report.
Online Application for a Protection Order – Section 4(5)
A welcome addition in the New Act is the suggested introduction of secure online submissions of applications for protections orders and an integrated electronic repository. This addition is helpful in that it lines up with the standard technological push to digitised systems. More significantly, having said that, it enables sufferers of domestic violence to apply for protection orders from another location, which is particularly important where, for instance, the mobility of victims is restricted by their abuser, or where victims are otherwise restricted from departing a residence shared with the abuser. It would definitely have been wise for the New Act to give consideration to providing a recommended leave period to be granted to a complainant in Domestic Violence proceedings, as is the case in other places in the world. This would lessen the burden of humiliation carried by the applicant, particularly where noticeable injuries are noted in the application.
In addition to the amendments to the Domestic Violence Act the government also introduced the Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill. The New Act intends to change the Criminal Law (Sexual Offences and Related Matters) Amendment Act (SORMA). It was introduced to Parliament on 19 August 2020, and aims to produce a number of changes - the more significant of which are to recognise sexual intimidation as an offence; to increase the National Register for Sex Offenders to include sex offenders further than those convicted of sexual offences towards children and persons who are mentally disabled; calling for the full name, surname, identity number and sexual offence also be incorporated in the Register, and offering for further regulation surrounding the reporting duty of persons who are aware of sexual offences being committed against children. This may include a person who has knowledge, reasonable belief or a suspicion, and the failure to report this to a police official will result in the person being guilty of an offence and liable on conviction to a fine or imprisonment for a period not exceeding five years.
In addition to the amendments to the Domestic Violence Act the government also introduced the and Related Matters Amendment Bill. This bill was presented into Parliament on 28 August 2020. It is designed to amend the Magistrates’ Courts Act and the Superior Courts Act to provide for the appointment of intermediaries and the giving of evidence by using intermediaries and audio-visual links in proceedings on application by any party to proceedings other than criminal proceedings. Provisions will also be included to guarantee that perpetrators of GBV are not released on bail prior to their first appearance in the lower courts. The New Act also intends to present changes to the CPA to furthermore regulate the giving of evidence via closed-circuit television or similar electronic media and the right of a complainant in a domestic related offence to take part in bail and parole proceedings. This offers survivors or the relatives of a deceased victim the chance to be heard prior to the court or the parole board prior to any decision is made. In addition to allowing for an possibility to be heard, being able to give evidence via closed-circuit television also provides the victim with the added protection of not having to be in the same room as the perpetrator.
