Blog


2019-05-07
Domestic Violence and Abuse


Domestic violence and abuse is used to described incidents of controlling and threatening behaviour, violence or abuse. This types of behaviour occurs between any individual over 16 years who are/have been intimately involved or are family members. Domestic violence and abuse may be physical violence, sexual abuse, emotional/verbal, controlling or financial.

In todays society, domestic abuse can take place on mobile phones, internet, social networking sites, at the workplace and at home. Domestic abuse and violence occurs in men, women, boys and girls.

Domestic abuse in men is violence experience by men/ boys. Such abuse occurs in marriage or cohabitation which results in men losing their children. Domestic abuse in the eyes of the law is considered and constitutes a crime. Men who report domestic abuse face social stigma as they are perceived to be less of a man. Intimate partner violence amongst men are generally less recognised by society than intimate violence against women. With reference to an article, “Intimate partner Abuse against Men” it is found that almost equal proportions of men and women (7% and 8% respectively) had been the victims of intimate partner physical and psychological abuse (18% and 19% respectively). These findings were consistent with several earlier studies which reported equal rates of abuse by women and men in intimate relationships. This case study is about intimate partner abuse against men in heterosexual relationships – both marital and common law; it does not deal with intimate partner abuse in same-sex relationships.

Two types of physical abuse are mentioned namely, minor and severe. The first type refers to acts such as shoving, pushing, grabbing or slapping, acts that have a relatively low probability of causing serious physical pain or injury.

Severe physical abuse includes assault that has a relatively high probability of causing serious physical injury or pain: choking, kicking or hitting with an object, “beating up” the partner, or using a knife or gun against the partner.

Emotional or psychological abuse consists of behaviour intended to shame, demean, intimidate or humiliate. Examples include yelling at or insulting the other person, or limiting his contact with friends and family. Such behaviour often occurs within relationships that are also physically abusive.

Domestic abuse and violence against women is recognised as gender-based violence and gender-based violence relates to women and girls. Domestic abuse against women are considered gender-based as they are inflicted on females.

According to statics at least one out of three women and men around the world has been beaten, coerced into sex or otherwise abused in his/her lifetime with the abuser known to him/ her.

Domestic abuse against children involves physical and physiological abuse and physical injury, neglect or negligent treatment, exploitation and sexual abuse. These perpetrators may include parents, family members, caregivers, teachers or friends.

Domestic abuse affects children in various ways as they may experience grief, shame, low-self esteem and common emotions. Children may suffer from insomnia, anxiety, regressive behaviours, excessive crying and digestive problems and panic disorders. Domestic abuse forces children to develop the fear of being abandoned, abused and they need to feel guilty and that they are to blame for these situations.

Relevant case law which sets our out domestic abuse are:

1.KS v AM (A3032/2016) [2017] ZAGPJHC 297; 2018 (1) SACR 240 (GJ) (24 October 2017)

Appeal against the decision of the magistrate court refusing to grant additional conditions to an interdict made in terms of section 7(1) of Domestic Violence Act 116 of 1998. Section 7 (1) provides that the court may prohibit a respondent from inter alia committing any act of domestic violence, like abusing a complainant, entering the complainant's residence or committing any act as specified in the protection order.

The respondent interdicted from publishing explicit sexual video footage and photos of the applicant on Facebook. Court restating the constitutional norms in the interpretation of statutes. Magistrate’s decision set aside on the ground of failure to apply the correct principles in interpreting the discretionary powers given by Section  7(2) of the Domestic Violence Act.   Section 7(2) states that a Court may impose additional conditions such as the Respondent must seize any arm and dangerous weapons which he may be in possession off that could harm the complainant.  The respondent ordered to submit the video footage and the photos to the Sheriff forensic audit and removal from any of the digital equipment they may be found.  

 

  1. S v Qhekisi (166/2015) [2015] ZAFSHC 182 (17 September 2015)

This case was sent on special review under section 304(4) of the Criminal Procedure Act 51 of 1977. The accused was charged with a contravention of section 17(a) of the Domestic Violence Act 116 of 1998, a contravention of a protection order on 2 April 2009 instructing him not to assault, threaten, insult or verbally abuse the complainant (his mother). Section 17(a) of the Act states that notwithstanding the provisions of any other law, any person who contravenes any prohibition, condition, obligation or order imposed in terms of section 7, is guilt of an offence and liable on conviction in the case of an offence such as a fine or imprisonment for a period not exceeding 5 years or both a fine and imprisonment.

The magistrate convicted the accused as charged and heard argument on sentence. The accused has a previous conviction for the contravention of the same protection order against the same complainant. He was convicted of that offence on 11 October 2014 and was given a wholly suspended sentence. That sentence did not deter the accused from committing the same offence on 26 March 2015. The magistrate sentenced the accused to five years’ imprisonment, the maximum allowed in terms of section 17 of the Domestic Violence Act 116 of 1998.

The accused had a previous conviction for contravening the same protection order. The suspended sentence did not deter him. Within less than a year he committed the same offence against the same complainant, his mother. His conduct justified the maximum penalty. The violation of a protection order is a more serious offence than assault. Domestic violence is a problem in this country as is apparent from the preamble to Act 116 of 1998 and statements made by judges of the Constitutional Court and Supreme Court of Appeal as quoted above. In our view the trial magistrate did not exceed her jurisdiction. There is no basis to interfere with the sentence. The proceedings were in accordance with justice.

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Domestic violence cases are often confused with civil Harassment cases. Harassment occurs when an individual harasses, injures or threatens another individual’s life. Harassment can further be explained as where one person engages in any unreasonable conduct which causes mental, psychological, physical or economic harm to another person. Domestic violence often results in greater harm caused by one person against the other when there is no domestic relationship.

A protection Order under domestic violence forms part of the Domestic Violence Act. This means that abuse needs to be between persons that live under the same roof or have a domestic relationship, for example, mother, father, brother, wife, romantic relationship, etc.

An application is made for a Protection order and thereafter a return date is set. An Applicant therefore can change their mind, alternatively, the Order is granted and it is binding for 30 years or until it expires or is expunged.

If the protection Order is breached by the Respondent, he/she may receive up to 5 years imprisonment.

An application for a Protection Order is made ex-parte, this means the Application can be brought without the Respondent being notified and immediately thereafter served on him/her.

If an individual is being Harassed, they can apply for an Harassment Order. When applying for an Harassment Order, no relationship is required between the individuals and includes harassment such as messaging, stalking, emails, shouting, verbal abuse which is life threatening.  For both Domestic Voilence Orders and Harassment Order you have to have proof of an affidavit under oath.

An application for an Harassment order takes place in Domestic Violence office and Magistrates office and an Interim Order is granted. If the Respondent does not attend Court proceedings, the order is made final. If the Respondent, does attend the, he will then be allowed a chance to explain his side of the story. Therefore once the Court grants a Harassment Order, it is binding for 30 years. The Applicant can withdraw the Order on conditions that the Court is satisfied with.

The law always encourages the society to take stand against Domestic abuse and violence.