Insofar as the SALC’s recommendations are consistent with our interpretation of these rights, we welcome and endorse them. However, insofar as they fail to explicate a gender-sensitive understanding of the power imbalances that underpin domestic violence and the measures that are required for the effective protection of abused women, we are of the view that they exacerbate the gender inequality that characterises the current law that regulates domestic violence. We accordingly advocate the reformulation and supplementation of certain recommendations. Since we are concerned to facilitate the development of an effective legal response to the phenomenon of domestic violence, we do not confine our analysis to the parameters of the Bill. By contrast, we advocate the enactment of additional measures that ensure that the hidden gender inequality of the law is eradicated and its inadequate boundaries are extended.

We take the view that the gender-neutrality of the SALC’s definition of ‘domestic relationship’ obscures the reality that the majority of survivors of domestic violence are women. However, we are aware that persons in for example same-sex relationships are also susceptible to violence and hence in need of legal protection. We accordingly recommend that, although the definition of domestic violence be gender-specific and that the spirit, purport and objects of the Bill, reflected in the preamble, be the elimination of violence against women in domestic relationships, the provisions of the Bill should also apply to violence in same-sex relationships, violence by women against men, and violence between persons who live in the same household but are not in a sexual or a dating relationship.

We are concerned that the SALC’s definition of ‘domestic violence’ lacks a general criterion to determine its ambit in penumbral cases and fails to include certain prevalent forms of violence such as stalking, psychological abuse and economic abuse. We accordingly recommend the adoption of a general criterion of ‘abusive and controlling behaviour that harms the health, safety and well-being of the applicant or any child in her care’ to facilitate the adjudication of these penumbral cases. We also suggest that the definition be extended to include stalking, psychological, emotional and verbal abuse, and economic abuse. In addition, we propose the inclusion of concretely delineated definitions of acts of domestic violence such as harassment and intimidation.

Although we support the SALC’s recommendation that the court be empowered to prohibit the performance of certain specific acts of domestic violence, as well as other acts not specified in the Bill, we suggest that, in view of our extended definition of domestic violence, additional acts must be included in the Bill. We also take the view that the criterion of ‘significant harm’ and the requirement of proportionality that constitute preconditions for an order excluding the respondent from the shared residence are unduly restrictive. In view of the paramountcy of the applicant’s safety and the reality that alternative accommodation is rarely available, we suggest that the court’s power to order the respondent’s eviction be unqualified. We are also concerned that the SALC’s failure to empower the court to order the respondent to pay restitution to the applicant leaves a lacuna in our law. We accordingly propose the inclusion of the power to grant restitution orders that compensate the applicant for the full extent of her loss arising from acts of domestic violence by the respondent.

We believe that the SALC’s decision not to make express provision for the right to legal representation of both parties is undesirable. In practice applicants in certain magisterial districts are regularly denied the right to be represented. We are also of the view that the SALC’s statement that the appointment of a legal representative for the applicant at state expense infringes the respondent’s right to equal benefit of the law is premised on a misconception of the right to equality. The provision of state-funded representation to abused women in interdict proceedings reduces the detrimental effects of gender-based violence and thus rectifies the imbalance of power that exists between the parties.

We express our agreement with the SALC’s recommendations concerning the constitutionality and desirability of ex parte interim interdicts. We take the view, however, that the respondent should bear the onus on the return day of the rule nisi to prove that the award of a final interdict is unwarranted. We also believe that, since it is trite law that final interdicts may be granted on notice in appropriate circumstances, the Bill should include a provision to this effect. In addition, we support the request by Tshwaranang that the constitutionality of ex parte final interdicts be determined by the constitutional court.

We welcome and endorse the SALC’s recommendation that the court be empowered to grant interdicts coupled with maintenance, custody and access orders. We are of the view, however, that criteria to determine when custody and access are in the child’s best interests must be included in the Bill. In view of the well-documented evidence of the detrimental consequences of exposure to domestic violence on children, we propose that the Bill contain a presumption that custody be granted to the non-violent parent and that unsupervised access by the abusive parent not be permitted. We also suggest the adoption of concretely delineated guidelines for the exercise of supervised custody by the abusive parent.

We suggest that, in order to facilitate the efficient, prompt and cost-effective service of process in interdict applications, the sheriff of the court, the SAPS and the clerk of the court be given concurrent authority to effect service.

We view the SALC’s recommendation that interdict contraventions be adjudicated in the ordinary criminal courts with misgiving. The abused woman is recast as a complainant rather than an applicant for relief. She is denied legal representation and excluded from active participation in the proceedings. We accordingly propose the implementation of the German Nebenklagerin procedure, in terms of which the complainant may participate as an ancillary prosecutor in criminal proceedings for domestic violence offences. In her capacity as ancillary prosecutor, she is granted procedural rights analogous to those of the prosecution and the defence, including the right to legal representation and the right to appeal against an acquittal. We take the view that, provided that this procedure is implemented and that the respondent is charged both with contempt of court and a domestic violence offence, the institution of criminal proceedings for interdict contraventions will not enure to the detriment of the abused woman.

However, we are aware that this procedure constitutes a dramatic departure from traditional criminal procedure. We accordingly advocate, albeit with reluctance, the employment of an alternative sui generis procedure if the German model is not implemented. This sui generis procedure encompasses the concurrent jurisdiction of the civil and the criminal courts to hear interdict violations. Whereas the former has jurisdiction to decide the offence of contempt of court, the latter has the jurisdiction to determine domestic violence offences. Our reluctance to advocate this alternative is founded on the disadvantage to the applicant that is consequent on her participation in dual proceedings. We accordingly express a strong sentiment in favour of the adoption of the German model.

We endorse the SALC’s recommendation concerning the arrest of the respondent for a contravention of the interdict. We suggest, however, that, in order to protect the applicant from further violence, the respondent who applies for bail be required to discharge the onus of proving that the interests of justice do not require that he be kept in custody pending the determination of the proceedings for the violation of the interdict.

We believe that the SALC’s decision not to recommend orders for the rehabilitative counselling of abusers is founded on an unduly pessimistic attitude to the prospects of successful rehabilitation. With reference to the position in comparable jurisdictions, we submit that sentences of imprisonment, coupled with orders for rehabilitative counselling, for the offence of contempt of court constitute the only effective means to ensure the cessation of violence.

We are of the view that the SALC’s recommendations concerning appeal and review fail to explicate the correct procedure that should be followed in either instance. We accordingly suggest that the provisions of section 83 of the Magistrates’ Courts Act apply to appeals against the grant or refusal of a final interdict, the grant of a temporary interdict, and the conviction or acquittal of the respondent of contempt of court. Insofar as appeals in criminal proceedings are concerned, we advocate the insertion of a provision in the Criminal Procedure Act that entitles the complainant, as secondary prosecutor, to a right to appeal against an acquittal.

We are of the view that the effective interpretation and application of the reformulated provisions that we propose requires extensive training of judicial officers and court personnel in the causes and effects of domestic violence. We also believe that the establishment of a task force is necessary in order to investigate and propose policy reforms to the criminal justice system to ensure its gender-sensitivity. We accordingly suggest that the Bill provide for the mandatory attendance of training programmes by judicial officers and court personnel, and for the establishment and terms of reference of a task force on domestic violence.