“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:
- Advocating hatred against the complainant because of their religious or spiritual beliefs that constitutes incitement to cause harm to the complainant;
- 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;
- 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.