Violence against Women in Relationships
(Women and Human Rights Project, Community Law Centre, University of the Western Cape; Rape Crisis, Cape Town; and ANC Parliamentary Women’s Caucus, 30/5/97)
Submissions to the South African Law Commission in the light of international and constitutional human rights jurisprudence.

Table of Contents

Summary of Proposals i
 
1. Introduction 1
 
2. Domestic Violence: A Contextual Analysis
2.1 Incidence 2
2.2 Public / Private Dichotomy 2
2.3 Social and Psychological Context of Domestic Violence 3
2.4 The Balance between Individual Autonomy and Protective Measures: Mandatory Arrest and Prosecution Policies 4
 
3. Constitutional Jurisprudence: Equality and the Right to Freedom from Violence
3.1 The Right to Equality 6
3.2 The Right to Freedom from Violence 7
3.3 State Liability for Infringement of the Right to Freedom from Violence 8
3.4 State Responsibility in terms of International Law 8
 
4. Application for Interdicts
4.1 Application: Gender-Specificity [SALC Recommendation 2] 9
Proposal 1 12
 
4.2 Definition of Domestic Violence [SALC Recommendation 10]
4.2.1 General Criterion 13
4.2.2 Forms of Domestic Violence Excluded from the Definition 13
4.2.3 Absence of Definition 12
Proposal 2 14
 
4.3 Terms of the Interdict
4.3.1 General Provisions [SALC Recommendation 17] 16
Proposal 3(a) 16
4.3.2 Exclusion of the Respondent from the Matrimonial Home
[SALC Recommendation 13]
Constitutionality of Order Excluding Respondent from
Matrimonial Home 17
Payment of Mortgage or Rent 18
Emergency Relief 19
Proposal 3(b) 19
4.3.3 Restitution [No Recommendation] 19
Proposal 3(c) 21
4.3.4 Miscellaneous provisions
Mutual Interdicts 21
Consent to the Violation of the Interdict 22
4.4 Jurisdiction [SALC Recommendation 3]
4.4.1 Factors establishing Jurisdiction 22
Proposal 4(a) 22
4.4.2 Jurisdiction in relation to Final Interdicts 22
Proposal 4(b) 23
4.4.3 Confidentiality 23
 
4.5 Legal Representation [SALC Recommendation 4] 23
Proposal 5 25
 
4.6 Procedure
4.6.1 Interim/ Final Interdicts [SALC Recommendation 1]
Interim interdicts ex parte and on Notice 25
Final Interdicts 27
Proposal 6(a) 27
4.6.2 Hearing of oral evidence [SALC Recommendation 5] 28
4.6.3 Onus of proof [No Recommendation] 28
Proposal 6(b) 28
4.6.4 In Camera [SALC Recommendation 20] 29
4.6.7 Costs [Recommendation 19] 29
 
4.7 Service of Interdicts [SALC Recommendation 6]
4.7.1 Service by SAPS
Urgency 30
Financial Considerations 30
Effectiveness 30
4.7.2 Service by the sheriff
Urgency
Proposal 7(a) 32
Financial Considerations - Service Fees
Proposal 7(b) 32
Effectiveness 33
4.7.3 Dual Service 33
Proposal 7(c) 33
 
4.7.4 Personal Service 33
 
4.8 Duration [SALC Recommendation 7] 34
Proposal 8 34
4.9 Amendment or Setting Aside by the Applicant
[SALC Recommendations 7 and 14] 34
Proposal 9 34
4.10 Maintenance, Custody and Access Orders
[SALC Recommendation 18] 35
Proposal 10 37
 
5. Interdict Contraventions [SALCRecommendation 15] 38
 
5.1 Option 1: Sui Generis Procedure 40
5.1.1 Concurrent Jurisdiction: Interdict Court
and Criminal Court 40
Proposal 11 41
5.1.2 Contempt of Court and Domestic Violence Offences:
Autrefois Acquit and Autrefois Convict 41
Proposal 12
 
5.1.3 Procedure: Interdict Court
Arrest [SALC Recommendation 16] 43
Issue of warrant of arrest 43
Proposal 13(a) 44
Execution of Warrant of Arrest 44
Proposal 13(b) 46
Bail 46
Proposal 14 47
Hearing 47
Nature of proceedings 47
Founding Affidavit 49
Incidence of Onus 49
Legal Representation 50
Proposal 15 51
Sentence 52
Imprisonment 52
Rehabilitative Counselling 53
Proposal 16 54
 
5.1.4 Transfer to Criminal Court 55
Domestic Violence Offences 55
Assault 56
Intimidation 57
Proposal 17
Harassment/ Stalking 57
Proposal 18 58
Proposal 19 60
Decision to Prosecute 60
Duty to Provide Reasons for Refusal to
Prosecute 62
Compellability of Survivors of Domestic
Violence 64
Proposal 20
Procedure 64
German Law: The Nebenklagerin 65
Participation as Nebenklagerin 65
Legal Representation 65
Procedural Rights 66
Adversarial v Inquisitorial Procedure 67
Constitutionality 68
Proposal 21 69
Sentence 70
5.2 Option 2: Criminal Procedure
5.2.1 Offences: Contempt of Court and Domestic Violence 71
5.2.2 Arrest 71
5.2.3 Bail 72
5.2.4 Decision to Prosecute 72
5.2.5 Procedure 72
5.2.6 Sentence 72
 
6. Review and Appeal [SALC Recommendation 9]
6.1 Appeal
6.1.1 Granting of an Interdict 73
6.1.2 Conviction and Sentence of Acquittal
Civil proceedings for Contempt of Court 74
Criminal Proceedings for Contempt of Court and
Domestic Violence Offences 74
6.2 Review 76
Proposal 22
 
7. Criminal Justice System
7.1 Police
7.1.1 Arrest [No Recommendation] 77
Authority to Arrest 77
Discretion whether or not to Arrest 78
7.1.2 Role of the SAPS [Request for Comment 2] 80
Empowering the SAPS to apply for Interdicts 81
Court Order for Police Official to Accompany
Applicant to Residence 81
Other duties 81
 
7.2 Prosecutors: Proactive Prosecution [No Recommendation] 82
7.3 Twenty Four Hour Service [SALC Recommendation 11] 82
7.4 Victim Support [No Recommendation] 83
7.5 Victim Compensation [No Recommendation] 83
7.6 Training 85
7.7 Task Force 85
 
8. Conclusion 86
 
Violence Against Women in Relationships Bill 87
 
Domestic Violence Offences Bill 105
 

Participants in compilation of this document:

A. Women and Human Rights Project (Community Law Centre, University of the Western Cape)
Karrisha Pillay BA Law (UDW) LLB LLM (UCT)
(Researcher)
Heléne Combrinck B Jur LLB Honns BA (PU for CHE) LLM (UCT)
(Associate Researcher)

B. Rape Crisis, Cape Town
Bronwyn Pithey BA LLB (UCT)
(Legal Advisor)
Lorraine Wolhuter BA LLB LLM (UCT)
(Voluntary Legal Advisor)

C. ANC Parliamentary Women’s Caucus
Pamela Shifman JD (University of Michigan)
(Legal Advisor)

Rape Crisis (Cape Town), the Women & Human Rights Project (Community Law Centre, UWC) and the ANC Parliamentary Women’s Caucus wish to express their gratitude to Jo-Anne Fedler for an early exchange of ideas and to Professor Christina Murray for comments on provisional drafts of this document. In addition, we would like to thank the Law, Race and Gender Research Unit (UCT) for co-hosting a workshop for discussion of preliminary research findings on 16 May 1997, and participants in the workshop for valuable comments.

Endorsements

These submissions are endorsed by the Western Cape Regional Network on Violence Against Women, which includes the following organizations and/ or individuals:
1. NPPHCN Media and Training Centre
2. Child Welfare Society
3. Social Changes Assistance Trust
4. Wendy Powell
5. FAMSA
6. Melanie Silove
7. MOSAIC
8. Frank Manley
9. Union of Jewish Women
10. Women in Need
11. Carehaven
12. United Sanctuary for Battered Women
13. Institute of Criminology (UCT)
14. Gender Advocacy Programme
15. Beitun-Nur
16. CAFDA
17. Health Promotion Department
18. Zonta International
19. The Islamic Social and Welfare Society
20. Ms. N. Pandor
21. Nellie Tebele
22. Trauma Centre for Victims of Violence and Torture
29. Catholic Welfare and Development
30. Institute for Multi Party Democracy
31. Dr W Boesak

In addition, the Black Sash Trust also endorses the document.

It should be noted that a number of organizations or individuals are at present considering the endorsement of these submissions. They have undertaken to contact the South African Law Commission directly to confirm their position.

These organizations include the following:
1. Gender Research Unit, Centre for Applied Legal Studies, University of the Witwatersrand
2. Kwazulu-Natal Regional Network on Violence Against Women
3. Law, Race and Gender Research Unit, University of Cape Town
4. Legal Resource Centre, Cape Town
5. NICRO Women’s Support Centre, Cape Town

 

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