Locating deficiencies in South Africa’s domestic violence legislation
Domestic Abuse in South Africa: Deficiencies of the South African Domestic Violence Act 116 (1998)
By Lyse Nathalie Menyimana (Legal Researcher, Africa)
According to several reports, South Africa has one of the highest rates of domestic violence in the world. Sexual violence is the most common and widespread human rights violation in South Africa; every day, one in every six women are regularly physically and sexually assaulted by their partners in their own homes.
Regarding the nature of the victims of domestic violence, although it is of course disputed, there is some consensus to indicate that women are more likely to be abused by their partner. Studies have shown that the cases in which women are perpetrators are less reported to the police and even when these cases are reported women are often portrayed as victims regardless.
It is, of course, crucial to look at the domestic legal remedies available for victims of domestic violence. In 1998, the South African government enacted the ‘South African Domestic Violence Act 116’ as an expression of the government’s commitment to end domestic violence, given its alarming prevalence. The Act came with a definition of domestic violence, a broad one, so that it could capture common acts committed to victims in the country. Its aim was to provide the victims of domestic violence with maximum protection as well as impose duties on the State toward these survivors.
One crucial protection that victims receive through the Act is the possibility to apply for a protection order through the courts, upon meeting a number of conditions. The court hears from the both sides; and then decides whether the protection order should be issued or not. As to the obligations of the State – transferred to the police – they include, mainly, the duty to explain the investigation processes and procedures to the complainant, to collaborate with the Health Department in cases where the victim requires medical care, etc. However, it is agreed that that such an Act cannot be implemented successfully if the police officials are not equipped with the necessary skills and resources to investigate domestic violence cases. Furthermore, the South African Police (SAPS) are required to submit a six-monthly report to the Parliament detailing the accomplishments of the police, as well as any actions taken against them for non-compliance.
However, the Act, as an instrument that illustrates the efforts of the State to combat domestic violence and in which victims can place their trust, itself contains several deficiencies.
Surprisingly enough, sexual violence is not regarded as a crime on its own in South Africa; it can only be reported under other crimes such as ‘assault with the intent to commit grievous bodily harm’. Domestic violence cases are merely civil matters. Interestingly, many women still prefer not to report domestic violence as they still consider it to be a private matter. Such a mentality might change if domestic violence is recognised as a crime, says Bendall C in a journal article. Academics also affirm that it is only when formal protection becomes real protection that public confidence in the criminal justice system can be restored.
Much research has shown that the South African Police is often late in the submission of its reports and it becomes, in this sense, complicated to monitor the seriousness and frequency of these crimes. A human rights researcher, Keaorata G argues that it undermines the purpose of the Act which in the first place was adopted as a response to the high incidences of domestic violence. He goes on by asserting that late reports imply that only the police, and not the public, would be aware of the rates of domestic violence.
Keaorata G suggests that the Domestic Violence Act of 1998 was a good initiative from the government but should be amended to recognise domestic violence as a crime given its prevalence; and that the Act should be gender-sensitive and deliver protection to all victims.