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“In a country with the most progressive of constitutions, which promises equality and dignity for all, the women and children of South Africa continue to live in fear of violence every day”.  

These were the words of President Cyril Ramaphosa in his speech at the Dialog on Gender-Based Violence in November 2020. The president expressed his cabinet’s commitment to alleviate the scourge of gender-based violence and subsequently announced an emergency response plan to address the issues of Gender-Based Violence in South Africa. 

As the war against gender-based violence in South Africa rages on, here’s what you need to know about the Domestic Violence Amendment Act: 

The plan introduced a more robust legislative framework which governs the prohibition of acts of violence against women and children. The president stated that “the enactment of legislation that protects victims of abuse and make[s] it more difficult for perpetrators to escape justice, is a major step forward in our efforts against this epidemic and in placing the rights and needs of victims at the centre of our interventions.”  

On 28 January 2022, the Domestic Violence Amendment Act (hereinafter referred to as the Act) was signed into law by the president.  

The Act introduces significant changes to its predecessor, the Domestic Violence Act 116 of 1998 (hereinafter referred to as the DVA). The new Act includes new definitions such as coercive and controlling behaviour. The Act also broadens the existing definition of Domestic Violence to include spiritual abuse, elder abuse, and coercive and controlling behaviour. Another significant change is that victims of domestic violence can now apply for protection orders electronically.  

The extended Definition of Domestic Violence in terms of the Domestic Violence Amendment Act  

Section 1 of the Act defines domestic violence as physical abuse, sexual abuse, emotional, verbal or psychological abuse, economic abuse, intimidation, harassment, or sexual harassment. The following have now also been inserted into the definition of Domestic violence: spiritual abuse, elder abuse, exposing a child to domestic violence, coercive behaviour, controlling behaviour, and entry into a victim’s workplace or place of study without consent.  

Spiritual abuse 

Spiritual abuse has been inserted into the Act and has been defined as follows:  

  1. Advocating hatred against the complainant because of their religious or spiritual beliefs that constitutes incitement to cause harm to the complainant;
  2. Preventing the complainant from exercising their constitutional right to freedom of conscience, religion, thought, belief and opinion, including to give external manifestation to their religious or spiritual convictions and beliefs;
  3. Manipulating the complainant’s religious or spiritual convictions and beliefs to justify or rationalise abusing the complainant.

Elder abuse 

Furthermore, the Act defines elder abuse as “the abuse of an older person as contemplated in the Older Persons Act.” The Older Persons Act makes the abuse of older persons a punishable offence. It is important to note that the Act has extended the protection from domestic violence to the elderly.  

Exposing a child to domestic violence  

Furthermore, the Act now expressly recognises that exposing a child to domestic violence is an act of domestic violence. This means that if a perpetrator intentionally causes a child to see or hear domestic violence or experience the effects of domestic violence, then that child enjoys protection in terms of the Act.  

Controlling behaviour and Coercive behaviour  

Another significant change to the definition of domestic violence is the insertion of controlling behaviour and coercive behaviour.  

The Act defines controlling behaviour as behaviour towards the complainant that has the effect of making the complainant dependant on or subservient to the respondent. This includes isolating them from sources of support, exploiting their resources or capacities for personal gain, depriving them of the means needed for independence, resistance, or escape, or regulating their everyday behaviour.  

Coercive behaviour means to compel or force a complainant to abstain from doing anything that they have a lawful right to do or to force them to do anything that they have a lawful right to abstain from doing. 

Electronic applications for protection orders 

Another significant change that the Act introduces is that complainants can now apply for protection orders electronically. Section 4(1)(bb) 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 seek urgent protection.  

Conclusion  

In light of the above, it stands to reason that the Domestic Violence Amendment Act can certainly be seen as a steppingstone towards the alleviation of gender-based violence. It affords victims of domestic violence greater protection, as well as speedy and easy access to justice. At Swemmer & Levin Inc., we have a formidable litigation team who can readily assist with the application process for protection orders. 

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

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Jan Fourie

Director |  Attorney, Notary & Conveyancer | BA. LLB

Jan graduated in 1974 with a five-year BA LLB degree from the University of Stellenbosch, whereafter he was admitted as an advocate and prosecuted as such in the Cape Town and Wynberg Courts. In 1974, he joined Swemmer & Levin as the Candidate Attorney of Mr Levin (founding member) and was admitted as an attorney on 7 April 1976, as a conveyancer on 11 January 1978, and as a Notary on 19 December 1984. Since 1974, he has served in various committees, including the West Coast Chamber of Commerce, the Vredenburg School Committee, and the Malgas Lions Club. 

Furthermore, Jan was the author of the first bilingual law book, The New Debt Collecting Procedures (Die Nuwe Skuldinvorderingsprosedures), which was used by all the Magistrate Courts throughout South Africa. With the founding of the Small Claims Court in Vredenburg, Jan served as one of the first Commissioners. He is currently based at Swemmer & Levin’s Vredenburg office and has been with our firm for more than 47 years.

Pieter Smit

Director | Attorney & Conveyancer | BA. LLB

Pieter obtained his BA Law degree from Stellenbosch University in 1995 and his LLB degree from the North-West University in Potchefstroom in 1998. He served his articles at Marais Muller Attorneys from 1998 to 1999 and was admitted as an attorney in 2000 and as a conveyancer in 2002. Pieter is the founder of PP Smit Attorneys, which opened its doors in 2004. He also became a director of Swemmer & Levin in 2006. Pieter loves the outdoors and participating in all forms of sport, including tennis, golf, fishing, spearfishing, scuba diving, and hiking. 

Johann Maree

Director | Attorney | BA. LLB

Johann matriculated at Oudtshoorn High School and attended Stellenbosch University, where he obtained his BA Law and LLB degrees. Following his studies, he worked for three years as State Prosecutor at the Magistrate’s Court in Cape Town. Johann completed his legal training with the State Attorney in Pretoria and then moved to his hometown, Oudtshoorn, where he worked as a lawyer for a year. In 1983, he finally moved to Vredenburg and joined Swemmer & Levin, where he is still practising as a director. When he is not in the office, Johann enjoys cycling and in his earlier days, he used to be a long-distance junkie.

Richard Phillips

Director | Attorney | Bcom & BProc

After matriculating at Paarl Boys’ High School, Richard completed his BCom and BProc degrees at the University of Port Elizabeth. He served his articles with Van Wyk Fouchee in Paarl and quickly developed an affinity for litigation. Richard has always had a deep love for the ocean and when he was presented with an opportunity to join Swemmer & Levin on the West Coast, he agreed without hesitation and has been with our firm since 1997. Richard specialises in general litigation and divorces. When he is not in the office or with his family, he tries to spend as much time as possible in or on the water.

Jandré Smith

Director | Attorney | LLB

Jandré grew up and matriculated in the small Klein Karoo town of Oudtshoorn. He furthered his studies at the North-West University in Potchefstroom, obtaining his LLB degree during 2015. He completed his articles at Swemmer & Levin in 2017 and was subsequently appointed as a professional assistant. In 2020, Jandré was promoted to the position of director at the firm, where he practises in the Litigation department at our Langebaan office. When not practising law, Jandré is an avid sports fan. He has a passion for nature and enjoys camping, trail running, and mountain biking with his family.

Andre van der Walt

Director | Attorney | LLB

Andre graduated in 2015 with an LLB degree from the University of Pretoria. He later went on to obtain his NQF 7 Certificate in the Administration of Deceased Estates from the University of South Africa, which allowed him to further his career in deceased estates and the drafting of wills and trusts. Andre served his articles at Barnard & Patel Attorneys under the supervision of Mr YAS Patel. After being admitted as an attorney in 2016, he continued working at Barnard & Patel Attorneys as a professional assistant in the deceased estates department.

Andre joined Van Rensburg Attorneys in 2019 and was head of the deceased estates department until 2021. He then received the opportunity to move to the West Coast, where he joined Swemmer & Levin Attorneys. Andre loves travelling and enjoys the beauty that our country has to offer with his friends, family, and loved ones.

Harmann Potgieter

Attorney | LLB

Harmann graduated in 2018 with an LLB degree from the North-West University’s Potchefstroom Campus. He went on to study and grow in various fields, including doing a course on the Consumer Protection Act and a course at the University of South Africa where he obtained his NQF 7 Certificate in the Administration of Deceased Estates.

Harmann completed his articles of clerkship at Swemmer & Levin under the supervision of Mr Richard Phillips. After being admitted as an attorney in 2020, Harmann continued with Swemmer & Levin as a professional assistant in the deceased estates department as well as the litigation department. He loves to study, possesses a deep curiosity about the world, and is dedicated to giving back to the community.

Carla Cloete

Attorney, Conveyancer & Notary | LLB

Carla obtained her LLB at the North West University, Potchefstroom Campus in 2015. She completed her articles in 2017 with Brits Dreyer Inc in Bellville. She is an admitted Attorney, Notary and Conveyancer. After her articles she relocated to Kimberley where she worked as a professional assistant in the Conveyancing department of Van de Wall Inc. Coming back to her Western Cape roots, she now joins the Swemmer & Levin team as a professional assistant.