In Pursuit of Equality in South Africa

Shortfalls in the Implementation of the Domestic Violence Act

Charlene May and Mandivavarira Mudarikwa

 

INTRODUCTION

South Africa has one of the highest statistics for violence against women in the world1. In an attempt to address this and to combat violence against women, the Government of South Africa has ratified the main international and regional women’s rights instruments which directly or indirectly protect women from violence. In addition, the government has also enacted various laws, policies and guidelines towards its commitment to combat violence against women and to give effect to its treaty obligations. Governmental departments have also been established to ensure implementation of the legislative and policy framework2. Notwithstanding these positive developments, violence against women – in particular domestic violence – continues to be widespread.

In light of the foregoing, this article seeks to provide an analysis of the shortfalls in the implementation of the Domestic Violence Act (DVA) by the responsible government departments. The research will examine submissions made by civil society organisations (CSOs) and Independent Police Investigative Directorate (IPID)/Independent Complaints Directorate (ICD) reports3. The research also relied on the submissions made by CSOs to the Portfolio Committees on Justice and Constitutional Development, the Portfolio Committee on Police, and that of Women, Children and People with Disabilities4.

SHORTFALLS OF THE SOUTH AFRICAN POLICE SERVICE (SAPS) AND POLICE STATIONS

1. Lack of attendance to the victim

1.1 At the station

An audit and research conducted by IPID and the Legal Resources Centre (LRC) at various police stations indicated that most stations were not fully compliant with the DVA prescripts.

Some of the non-compliance issues identified include:

  • lack of or no completing of forms5;
  • the Domestic Violence Act and National Instruction were not readily available;
  • a list of service providers were not available or updated;
  • copies of protection orders and warrants of arrest were not filed properly;
  • no file of domestic violence warrants kept;
  • failure to take witness statements; or
  • lack of trained staff available to meet the needs of victims of violence points to a lack of implementation of the Act.

1.2 At the scene

CSOs have reported that SAPS are often not able to attend to the scene of domestic violence, citing unavailability of police vehicles or lack of staff and knowledgeable officers in DVA. In these instances victims have to wait in a potentially harmful situation until a SAPS officer can be sent out or victims are informed to come into the station themselves.

LRC’s monitoring exercise found that resources were not being fully utilised in some stations, as they had the personnel capacity, vehicle availability, educated and knowledgeable officers but these were placed in stations where domestic violence cases were reported in smaller numbers compared to other police stations monitored. Clients also reported that SAPS would attend to crime scenes, but that they would merely warn the offender. The officer would seek to calm the situation or remove the offender for a short period of time. This left the victim open to further abuse. She was not necessarily advised to apply for a protection order or to lay charges against the perpetrator. Clients also reported failures or delays in SAPS members serving notice of the application or interim orders on perpetrators, which left the victims open to further abuse from perpetrators.

2. Lack of real and legal assistance

2.1 Failure to arrest

CSOs and the ICD have reported the failure by SAPS to arrest perpetrators, despite a warrant of arrest ordering them to do so or in circumstances where an interim protection order has been contravened. There are also reports of the respondent being briefly detained and released without being charged or where the respondent is released without the victim being informed. This amounts to a failure to implement the DVA and is in breach of a court order issued in terms of the protection order.

It was recorded that SAPS are derelict in their duties to serve notices and Interim Protection Orders on respondents. This was illustrated in reports from applicants having to continuously follow up with the SAPS station to confirm when the notice of the application for a protection order or the Interim Protection Order will be served.

2.2 Failure to remove dangerous weapons

CSOs raised instances where weapons used in committing physical acts of abuse are not removed or confiscated from the perpetrator or the scene of abuse. In support of the above, the ICD reports have stated failures to establish whether the person has a valid licence to possess the firearm, failure to search and seize arms (firearms) and ammunition, and failure to seize a dangerous weapon and/or firearm.

2.3 Failure to inform survivors of service providers

CSOs highlight the importance of providing victims with access to shelters or places of safety, but record that SAPS do not refer victims to shelters nor do they keep records of available shelters and counselling services in the area where the victim (complainant) resides. This leaves the victim open to the continued cycle of abuse because they are either compelled to return home, live with relatives or on the street.

Through representation of clients, we have come across an informal and arbitrary system that has been implemented by the City of Cape Town that sees emergency housing being provided to victims of abuse6. However, this is not an official policy and the provision of places of safety for women and children who are victims of abuse are left largely to civil society and community-based organisations. Although this is commendable, these services only offer a temporary reprieve.

One of the concerns relates to the provision of psycho-social support for victims of domestic violence. Women are largely left to locate these services within their communities without any referral from SAPS or the Courts, which means that women continue to suffer the trauma of their abuse without receiving any form of counselling.

CSOs reported that the SAPS did not refer or accompany victims to seek medical attention and they do not explain that a J88 form needs to be completed to prosecute cases of assault with grievous bodily harm. This leads to victims not having any medical proof that they were victims of violence. As a result, perpetrators are charged with lesser offences when prosecution takes place.

3. Failure to record and register domestic violence incidents

Registers documenting and recording domestic violence complaints are not being kept and SAPS, as a result, are unable to adequately provide statistics on domestic violence matters. A study 7conducted in Mpumalanga and presented to the Portfolio Committee on Women, Children and People with Disabilities indicated that only 5 per cent of domestic violence incidents reported to the relevant police station were recorded in the required register.

It has been the experience of the LRC that the lack of proper record keeping has led to dockets in prosecutions of domestic violence matters being struck off the roll. Investigations and statements are not properly taken and this influences the successful prosecution of domestic violence matters. Prosecutors are left hamstrung when the content of the docket does not indicate the presence of a prima facie case.

4. Reasons for SAPS’s failures to implement DVA

Lack of training of SAPS members on the content, duties and obligations as outlined in the DVA has also been identified as a hindrance to the implementation of the Act.

The LRC’s engagements and the reports from clients also point to the fact that SAPS members often do not have the necessary gender sensitivity and appreciation of gender-based violence, and even less of domestic violence. Complainants are, therefore, open to secondary victimisation by the very people who are meant to ensure their safety and security.

5. Recommendations

The reports from CSOs all point to a systemic failure in respect of the SAPS’s implementation of the DVA since its inception, with very few changes or improvements in over a decade. The focus of this article is in no way an attempt to compile a full and extensive list of recommendations to remedy all of the problems that we have noted. We do, however, feel that it is worth noting some key recommendations that will speak to the overall implementation of the Act.

In order to identify comprehensive solutions to the identified problems, we encourage the SAPS to engage with civil society in order to formulate a strategic and practical plan towards the proper implementation of the Act.

Failure by members of the SAPS to comply with an obligation imposed in terms of the DVA or the National Instructions constitutes misconduct8. Once such misconduct has occurred, the IPID must be informed immediately. Unless instructed otherwise by the IPID, the SAPS management must institute disciplinary proceedings. The IPID must now, every six months, submit a report to Parliament regarding the number and particulars of matters reported to it, and set out the recommendations made in respect of such matters.

Although the ICD (predecessor of IPID) was able to submit comprehensive reports to Parliament, this role and function has now been taken over by the IPID9, and we need to monitor how this task is done by them in the future. The National Commissioner of the SAPS must, every six months, submit a report to Parliament regarding steps taken as a result of recommendations made by the ICD. Overall SAPS compliance with these requirements has been very problematic since the inception of the Act. Largely, the challenges are that some SAPS management did not take disciplinary action against members when they failed to comply with the DVA and some SAPS members did not apply for exemptions.

Generally it is believed that SAPS members do not understand how the DVA operates, which is exacerbated by the existence of a culture of silence around domestic violence and the appearance of SAPS impunity, as it takes a long time to discipline SAPS members. SAPS members’ attitude regarding domestic violence is reflected in the behaviour of the society from which they stem. In general, there is a culture of silence that surrounds domestic violence and gender abuse. It is often viewed as a private matter to be dealt with by the family and not to be discussed in public. SAPS members are, therefore, only expressing and representing the cultural taboo surrounding gender discrimination. SAPS training should, therefore, focus on the capacity for change that lies in the reform of the law and in its application.

Gender and transformative training models should form part of basic training, and not be considered additional training that is offered to certain members of SAPS. The fact that training is potentially a long and costly process should not be a barrier; instead it should be considered an investment in enabling the creation of a society that embraces gender sensitivity and transformation. Training must be systematic and rigorous, and must integrate legislative and socio-psychological themes so as to ensure that members not only know the law, but also appreciate the context surrounding a complaint.

The SAPS must start monitoring and evaluating the implementation of the Act in a proactive manner. It is clear that no monitoring or accountability mechanisms are in place at station level, which means that the National Instructions are simply not followed. The efficacy of the system cannot be reliant on a complaints mechanism, as members of the public who are not aware of their rights will not be in a position to report non-compliance. An internal process must be undertaken to ensure that continued negative and critical reports are received by IPID on the lack of implementation of the Act.

For the DVA to be properly implemented, a concrete effort must be made by the SAPS in terms of resource allocation, financial allocation, as well as training. The implementation of the Act requires a mind shift from those in authority, who set the example for the members at station level, that domestic violence should be a priority crime and should be policed accordingly. Domestic violence will continue to be prevalent in our society if the department tasked with safety and security themselves violate the rights of victims.

DEPARTMENT OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT

The Department of Justice and Constitutional Development is the department tasked with the implementation of the DVA. The Department, therefore, has numerous obligations to ensure proper implementation, which ranges from the availability and creation of courts, provision of qualified clerks, as well as the relevant resources that would require that the government’s obligations in combating gender-based violence are met. However, as indicated below, the current situation does not reflect the fulfilment of these obligations.

1. Lack of resources and incorrect advice

One of the intentions with the enactment of the DVA was to make courts easily accessible to victims of domestic violence. The introduction of forms that victims could complete themselves, and the informal procedure that is outlined in the Act, was, therefore, specifically designed to avoid victims having to incur unnecessary costs in obtaining legal representation.

In order for the intentions to be realised, however, the court system available to complainants must be functioning at optimal level. The availability of qualified staff and proper court facilities has been identified as a concern. Very often victims need to report to court early in the mornings, as some courts have been identified as having certain operational times. This leaves many victims without protection and with the burdensome task of having to travel to the courts on another day to once again try and apply for a protection order.

Other concerning issues are clerks’ lack of knowledge about the completion of the forms and the type of remedy sought by the victims. The LRC has also encountered instances where victims, who rely on perpetrators for financial support and maintenance of children, are not advised to request an order for emergency monetary relief as envisaged by the Act.

Another important point is that instances have been noted where weapons and firearms are present and used in and during abuse, but where victims are not advised that they can ask for the removal of these weapons or firearms from the home or from the perpetrator.

Through our engagement with the courts, we identified the critical need for clerks to be trained on other applicable legislation, such as laws on succession, recognition of customary marriage and family law. Incorrect information particularly relates to customary marriages where women are often told that their marriages are not valid or where there is a general assumption that the marriage is not valid and that the victim does not have any rights to property, emergency monetary relief or to ask for an ejectment order.

Of concern are refugees and asylum seekers living in the country. These women fall within a particular vulnerable category as they often come to the country with their spouses or come to join their spouses in South Africa. They are not familiar with the laws of the country, the laws in South Africa are very often more progressive than in the countries from which they fled, and they require more attention in terms of advice and education on the protection that is available to them in South Africa. The provision of foreign language interpreters at the application phase of the protection order therefore becomes critical, as we have received complaints from refugee and asylum seeker women that were not assisted by clerks at the court or by the SAPS when they wanted to apply for orders or when they reported the abuse.

2. Failure to grant urgent interim orders and ejectment orders

A specific criticism that has been levelled at Magistrates is their failure to consider urgent matters, as allowed for in terms of Section 5 of the Act. CSOs working with victims of domestic violence have reported to Parliament that Magistrates are often reluctant to grant interim orders, even where prima facie cases are presented. This relates mostly to cases where victims report being psychologically and verbally abused. Even though the Act clearly identifies these acts as being abuse and forms of violence, Magistrates still make disparaging remarks towards victims that seek orders against this type of violence.

Magistrates will often make interim orders based solely on the application form and affidavit without ever engaging with the complainant to establish whether weapons are present in the home or being used in the commission of the abuse. Again, this is a varying practice, but the LRC’s experience has been, in many cases, that applicants will not see a Magistrate at the application phase, but only consults with the Clerk and complete the forms. The Magistrate will then make a determination on whether the order should be granted on the basis of the submissions made in the form that the Clerk provides to the applicant. This system is problematic as the LRC has experienced that clerks are often not well versed in the law, and the victim applying even less so.

In the majority of cases, the LRC has found that Magistrates confuse ejectment orders with eviction proceedings. Although it is acknowledged that there are abusive applications that are brought precisely to circumvent eviction laws, Magistrates, in the LRC’s opinion, do not always interrogate the request sufficiently and promptly. An example of this is an ejectment order that is usually delayed for the trial, as opposed to being granted as part of the interim order.

In some of these cases there was no physical violence present and an ejectment order was obtained on verbal and psychological abuse alone. Although the LRC were able to argue successfully that the threat of imminent harm does not require physical harm, but could very well relate to harm to health and mental wellbeing, it appeared that Magistrates would only accept this interpretation in cases between elderly parents and their adult children.

In cases concerning married couples or partners in a romantic relationship, the LRC struggled to obtain ejectment orders even when physical abuse was present. Magistrates in these cases would enquire about divorce proceedings and ownership of the property and even, in some cases, how the property was obtained. The private property rights of the respondent would more often than not take precedence over the right to safety and security of the complainant. The complainant was often advised to seek a divorce order to obtain her rights in the property, or advised to move in with relatives, as the relationship had clearly broken down.

COURT PROCESSES AND THE JUSTICE SYSTEM

Confusing court processes and victims’ unsuccessful navigation of systems were two of the first issues that were picked up during the practical implementation of the LRC’s project. At least one court had initiated a practice of only issuing Notices to Show Cause 10 even when a prima facie case was made out that warranted the issuing of an interim order. This form should only be issued in the event that the applicant has not been able to show that there is a prima facie case for domestic violence.

In at least one of the cases that the LRC offices dealt with, the issue was quite serious as the perpetrator had been recently released from prison after having been awaiting trial on charges of raping the complainant. She could not proceed with the criminal matter and charges were dropped as a result. Since the perpetrator’s release, he had been sending the complainant SMS messages threatening her. The Clerk of the Court, however, advised her on two separate occasions that no abuse had taken place as he was merely making threats and had not ‘actually done anything yet’. This response leads complainants to believe that some form of attack or physical violence is required before an interim order can be obtained against the perpetrator, which is not the case.

When enquiries were made, we were advised by the Clerk in question that the system was being implemented so as to not overburden the Magistrate with frivolous applications. Only people who really needed the order would return on the date, and then a trial would be conducted, avoiding the delay of an interim order and interim period. Although this system might have worked well in terms of court process and relieving possible backlogs, it goes against the direct intention and purpose of the Act. After raising the practice with the Department of Justice and Constitutional Development, the LRC is happy to report that it was stopped.

1. Failure to appreciate the seriousness of psychological and emotional abuse

Our experience has been that, where abuse relates to psychological and verbal abuse and harassment, Magistrates have failed to identify them as abuse11 and, as such, have not finalised or issued final protection orders.

In one specific matter, a senior male Magistrate cautioned the applicant by saying that, although he was granting her a final order, she should not call the police just because the respondent has sent her text messages or called her, as it was clear to him that the respondent was merely having trouble adjusting to the end of the relationship. The Magistrate expressing his view in front of the perpetrator meant that the perpetrator  could continue with the harassment as he heard the Magistrate telling her not to call the police when the perpetrator contravened a court order. The order was, therefore, relegated to the status of a useless piece of paper that could provide the victim no protection from the abuse.

The Artz research study found that, ‘Magistrates presented numerous scenarios that revealed a strong scepticism – or perhaps cautiousness – about three (sexual violence, economic abuse and psychological/emotional abuse) forms of domestic violence12.’ The Artz study also explored and found that court personnel were desensitised to cases of interpersonal violence, especially cases of non-physical interpersonal violence. The experience, and that of our clients, certainly confirms this assessment13. The LRC’s experience in a number of cases before a senior Magistrate was that she simply dismissed cases of non-physical violence and verbal abuse as interpersonal problems or relationship problems.

The LRC believes that there is a strong link between non-physical violence escalating into physical violence. Magistrates, therefore, must take the necessary care to establish in each and every case whether there is a possible risk of harm to the complainant, whether physical or non-physical. Failure to do so leaves the complainant at risk, but also leaves the complainant with the feeling that she is being punished for not wanting to divorce her abusive husband or leave an abusive relationship.

2. Discrimination and secondary victimisation

The LRC has also recorded that clerks, based on their own stereotypical views, deny victims the right to apply for protection orders, or advise against the application for domestic violence protection orders. Clerks especially have a negative view of victims who repeatedly apply for protection orders, but who do not finalise their applications.

The frustration that they express is indicative of service providers who do not understand the psychology of the victims of gender-based violence who they are meant to serve. They lack sensitivity when discussing domestic violence and have little to no regard for the emotional or psychological trauma that victims suffer as a result of gender-based violence. This leaves victims who approach the courts in a vulnerable position and open to secondary victimisation.

Applications are normally processed out in the open, without due regard and necessary privacy. Often, clients report not being comfortable or not having felt comfortable in detailing the abuse they have suffered as a result of the lack of privacy or sensitivity shown by the clerks of the court. This is especially relevant in cases where sexual abuse has been listed. There appears to be little to no regard given that women are required to detail what amounts to rape in the open, without the necessary support provided.

Clients also report having felt interrogated by clerks on personal issues that are not relevant to the abuse that they are suffering. Disparaging comments have been reported by clients who are often asked, ‘why, if their husband has been abusive, do they still want to be married to them’; ‘are they coming to apply for an order because their husband/boyfriend is sleeping with another women’; ‘they should just get divorced’ or ‘why have they not left their homes to live with family members rather than remain in abusive relationships’. This type of questioning often makes the victim feel guilty about the abuse and has the potential of discouraging victims from coming forward as complainants, as they believe that they are to blame for the abuse that they suffer.

Issues of secondary trauma have also been reported and attributed to prosecutors who lack an understanding of the emotional trauma that victims experience. There is an overall lack of psycho-social support for victims of domestic violence. Where some CSOs, such as MOSAIC Centre, provide court support services, their services are too few and leave many victims without support during the process of applying for a protection order, but also during the prosecution of perpetrators when criminal charges for contravention are brought. In many instances, victims opt for withdrawing criminal charges or simply do not return to court to have protection orders finalised14.

3. Recommendations

Even though Magistrates and clerks do not report to or fall under the authority of the Department of Justice and Constitutional Development, the Department is still responsible for ensuring that the Act is properly implemented. The Lower Court Management Committee15, along with the Department of Justice and Constitutional Development, developed and released a Guide to the Domestic Act to assist Magistrates in the implementation of the Act. We are, however, unsure of how many Magistrates have received training on the Act itself, enabling them to address the issues in a gender – and victim sensitive manner. This training is the key to the proper implementation of the Act.

Clerks of the Court have a critical role in the proper implementation of the Act. They require gender sensitivity training that is focused on gender-based violence, which would enable them to approach and engage with victims in a manner that understands and appreciates the abuse that the complainant has suffered.

In addition, the clerks require training on basic laws that would enable them to advise and assist complainants who approach the courts for assistance. The DVA must form part of the training programme and clerks need to be continuously reminded of their role as service providers. They need to be provided with an enabling court environment where resources are allocated properly, from computer and printing resources, to paper, in order to ensure that they can meet their obligations. This requires that the Department of Justice and Constitutional Development adopts a holistic budgeting process that ensures the proper implementation of the Act.

CONCLUSION

In order to ensure that the justice system functions optimally to protect women from domestic violence, government departments charged with the obligations of enforcing and protecting the rights of women will need to acknowledge the systemic failures. They will need to implement strategies that will adequately address budget allocations to ensure proper implementation that can be monitored and evaluated in an effective manner.

We have attempted to make recommendations to address some of the identified shortcomings, but the purpose of this article was focused on identifying the shortcomings. As the LRC, we believe that this should be the starting point for deciding on strategies towards sustainable solutions. At the end of the day, it is government’s duty to ensure that women’s rights to equality, dignity and to a life free from violence and abuse is respected, promoted, protected and fulfilled.


 

  1. Masimanyane CEDAW Working Group NGO Shadow Report to CEDAW: South Africa: Violence Against Women (1998).
  2. For a more detailed discussion on the obligations of the State in respect of domestic violence, we recommend reading a Desktop Review of the Obligations of South Africa in relation to domestic violence undertaken by the Legal Resources Centre.
  3. In their report to the Portfolio Committee on Police on 7 August 2012 IPID/ICD.
  4. Civil Society Organisations on whose information we rely are: The Women’s Legal Centre, Tswaranang Legal Advocacy Centre, Gun Free South Africa, NICRO, Child Safe South Africa, Advice Desk for the Abused, RAPCAN, Alexandra Justice Centre, Centre for the Study of Violence and Reconciliation, Justice and Women, Lethabong Legal Advice Centre, Lifeline, Stop Gender Based Violence helpline, Lungelo Women’s Organisation, Nisaa Institute for Women’s Development, and Thohoyandou Victim Empowerment Programme.
  5. The 508(a) forms are not filed properly and the 508(b) forms are not completed properly.
  6. One of our clients indicated that she obtained emergency housing in the form of a TRA (?) after going to the local housing office to complain that she had nowhere to live and that her husband was beating her on a daily basis.
  7. Tshwaranang Legal Advocacy Centre to End Violence Against Women and Others Submission to the Portfolio Committee & Select Committee on Women, Youth, Children and People with Disabilities: Implementation of the Domestic Violence Act, No. 116 of 1998 available at http://www.tlac.org.za/wp-content/uploads/2012/01/Implementation-of-the-Domestic-Violence-Act.pdf
  8. Section 18 of the Domestic Violence Act and South African Police Service Act.
  9. See section 2 of the Independent Police Investigative Directorate Act No. 1 of 2011 which outlines the object of this Act. Some of these objectives are to ensure independent oversight of the South African Police Service and to enhance accountability and transparency by the South African Police Service.
  10. Form 5 Notice to Respondent to show cause (submit response) why a protection order should not be issued.
  11. Section 1 of the Act defines ‘domestic violence’ as ‘… emotional, verbal and psychological abuse; … where such conduct harms, or may cause imminent harm to, the safety, health or wellbeing of the complainant’
  12. Artz, L. Magistrates and the Domestic Violence Act: Issues of Interpretation. Institute of Criminology, University of Cape Town: South Africa (2003) at 23
  13. Artz op cit note 38 at 23
  14. Lillian Artz and Diane Jefthas Reluctance, Retaliation and Repudiation: The Attrition of Domestic Violence Cases in Eight Magisterial Districts (2011)
  15. A forum comprising all Regional Court Presidents and Chief Magistrates in South Africa.