The new Domestic Violence Act:

Responding to survivors’ needs

The Domestic Violence Act of 1998 is a vast improvement on the Prevention of Family Violence Act, not least because it gives survivors the ability to charge police officials with misconduct should they fail to comply with its regulations. Research results (see Volume 3 Numbers 3 and 4) show that the new Act responds to many of the needs identified by survivors. It also offers greater protection. However, whether the police and courts will be able to implement the legislation effectively remains to be seen.

The combination of NGO pressure on government to deal with the gaps in the Prevention of Family Violence Act and government’s commitment to address violence against women has led to the Domestic Violence Act of 1998.

The Act was passed in November 1998 but the targeted (not official) date for implementation was December 1999 — one year after being approved in parliament after much lobbying from NGOs.

The aim of the Act is to protect domestic violence survivors and ensure that state agencies like the police and courts enforce its provisions. The new Act is an improvement on its predecessor — the Prevention of Family Violence Act, which has been in existence since October 1993. An overview of some of the improvements in the new Act follows.

New definitions

The new Act introduces a comprehensive definition of domestic violence. It includes physical, sexual, emotional and economic abuse, as well as intimidation, stalking, damage to property and other controlling or abusive behaviour.

How the types of violence experienced by women varies According to the Institute for Security Studies (ISS) survey on violence against women (see Volume 3 Numbers 3 and 4, 1999): • 90% of the 269 women interviewed experienced emotional abuse • 90% experienced physical abuse • 71% reported sexual abuse • 58% experienced economic abuse • 43% experienced all four forms of abuse • 89% believed what was done to them was a crime

The previous Act did not contain a clear definition of domestic violence. As a result, a decision to grant an interdict (intended to protect a woman from further abuse) depended on the magistrate’s understanding of domestic violence. If a magistrate believed that domestic violence consisted only of physical abuse, it was unlikely that a women who had experienced other types of abuse would be granted an interdict. Moreover a legal definition of violence against women is a big step in terms of recognising the different types of abuse.

Another major improvement is the broadening of the types of relationships covered by the new Act. Previously only married couples (civil and customary marriages) and women living with their partners or who had lived with their partners were included. The Domestic Violence Act of 1998 covers people (not just intimate partners) who share the same residence, are cohabiting, dating, engaged or in a customary relationship, and homosexual relationships. The Act is therefore gender neutral and covers both men and women (this article focuses on the experiences of women because they constitute the majority of survivors).

This means that unmarried couples, couples living in separate households as well as same sex couples are included in the new definition. This is an important step in the South African context. The migrant labour system and the large numbers of domestic workers has resulted in many women living apart from their partners. These women had been unable to seek legal protection from violence occurring in these relationships because they live apart from their partners.

The protection order

Under the Domestic Violence Act, a woman who has been abused is entitled to a protection order. A protection order is a court order. It aims to protect a person from abuse by legally prohibiting the perpetrator from:

Engaging in an act of domestic violence or enlisting the help of another person to commit such an act.



Entering the residence shared with the survivor if it is in the survivor’s best interests.



Entering a specific area in the residence (such as the bedroom used by the survivor).



Entering the home and workplace of the survivor.

There is also a clause in the Act that allows the court to include anything else that might be necessary to protect an abused woman and promote her safety and wellbeing depending on the circumstances of each case. For example, if a woman cannot afford the rent and other basic necessities, a magistrate or judge can order the perpetrator to continue to cover these costs while the protection order is in place. The Act also ensures that the new address of the complainant remains confidential to protect her.

These are important developments. Currently the address of the survivor is included on the interdict. This means a perpetrator can locate a woman at the place she has moved to in order to escape further abuse. Also, compelling the perpetrator to contribute financially to household expenses responds to one of the main reasons why women are unable to leave abusive relationships — their financial dependence on the perpetrator.

The application for a protection order can be brought on behalf of the survivor (with her consent) by someone with a material interest in her case such as a counsellor, health service provider, police official, or social worker. This is useful for women who are too afraid to apply for the order themselves or whose partners have restricted their mobility. And if the offender appeals against the protection order, the order remains in effect for the duration of the appeal procedure.

Hence the powers of magistrates have been extended. Under the Prevention of Family Violence Act survivors were not effectively protected because magistrates could not grant orders to compensate for expenses incurred by survivors as a result of abuse; could not confiscate weapons; or grant custody orders.

Extended hours and protection

Under the new Act, an interim protection order can be obtained if the court believes the complainant will experience ‘undue hardship’ while waiting for the final protection order. This is helpful since domestic violence is often ongoing (see box, page 10), and obtaining a protection order is likely to take several days, depending on the court roster, availability of evidence and how long it takes the sheriff of the court to locate the perpetrator.

One issue that the Domestic Violence Act does not address is the safety of women between the time that the interim protection order is applied for and when it is actually issued. Human Rights Watch has recorded cases in which women have waited up to six weeks for the sheriff to serve such an order. This may be because the perpetrator simply cannot be found or because the abused woman cannot afford to pay the sheriff’s fees (and has to wait because the sheriff has not received payment from the state).

Importantly, under the new Act an interim protection order can be obtained outside of court hours. This is vital since most violence against women occurs after court hours (see box below). It is also the time when they are most in need of protection from battering.

It is however not clear how this provision will be implemented or who will decide the conditions under which it is necessary to obtain an order outside of court hours. These are issues that the regulations by the various departments are meant to address.

Factors relevant to the process of obtaining a Protection Order Unprotected period: from the time of the incident to the successful issuing of the Interim Protection Order or the Order itself by the sheriff of the court, at least 3 days, if not more, may have passed. During this period a survivor is not protected by the Order. Costs of obtaining the order: Travel costs will be incurred in order to report the incident (to police, NGO or doctor), as well as to commute to the Magistrate’s court to apply for the Order, again to hear the Magistrate’s verdict and, in the case of an Interim Order, to give evidence before the actual Protection Order is granted. The distances involved should not be underestimated. In the case of Alexandra township, for example, the nearest Magistrate’s court is in Randburg some 20 km away. Money is also required to pay the sheriff’s fees, although, on application (which will probably also take several days) the department of justice will bear some of the sheriff’s costs. The entire process is time consuming and will require that survivors take leave from work. Nature and time of the abuse: suvivors may want to institute proceedings as soon as possible to avoid further abuse, but may have to simultaneously deal with severe injuries and fear. Added to this is the fact that most abuse occurs after work hours which means securing transport and assistance is much harder.

The ongoing nature of abuse According to the ISS survey on violence against women (see Volume 3 Numbers 3 and 4, 1999) the following proportion of survivors said abuse occurred countless times: economic abuse: 73% emotional abuse: 65% physical abuse: 44% sexual abuse: 39%

The need for extended hours of service A study by UNISA’s Institute for Social and Health Sciences Project on rapes reported to medico-legal centres indicated that attacks are most likely to occur after working hours: 44% of rapes occurred between 18h00 and midnight. In the ISS survey on violence against women the need for extended service hours was frequently mentioned: 20% mentioned this in the case of social welfare services; 17% for clinics and 21% for district surgeons. Few mentioned this in relation to courts, probably because only 19 of the 269 women sought legal advice in the past five years for the incident of abuse they considered most serious. Of these only 10 were granted an interdict and only three said their case ended up in court. Experience with the legal system was thus limited.

Better assistance from police

Unlike the previous Act, the police are now required to tell women about their rights (preferably in the official language of their choice). Currently most women who make the effort to report domestic violence to the police receive little guidance about how to resolve the matter via the criminal justice system. The police will also be obliged to help the survivor find a place of safety, obtain medical treatment and accompany the survivor to collect her belongings if necessary.

The new Act allows complainants to charge police officials with misconduct should they fail to comply with their duties in terms of the Act. Prior to the Act there were no real consequences for police members who failed to help a survivor.

The new legislation reinforces the seriousness of the issue and should stimulate a more consistent response by law enforcement agencies. Now that the police are compelled to inform women of their rights, the personal opinions of officials about domestic violence should no longer shape the subsequent course of events.

Many women are not aware of their rights, or of the new legislation and the protection they are entitled to. Unless those who come into contact with survivors soon after the incident — and these are more likely to be counsellors or doctors than the police — inform them of their rights and options, the legislation will have little effect.

Do police assist survivors with the criminal justice process? A recent Medical Research Council study shows that 32% of women who reported violence to the police were advised against an interdict or prosecution. The ISS survey on violence against women shows that only 30% of the 269 women reported the incident of abuse they considered most serious to the police. Of these few women, most were not informed of their rights.

Shahana Rasool
Institute for Security Studies

Source documents:

Human Rights Watch ‘The Prevention of Family Violence Act’,
1995 http://www.hrw.org/about/projects/womrep/General-203.htm

R Jewkes, L Penn-Kekana, J Levin, M Ratsaka, M Schrieber, ‘Violence against women in three South African provinces’ CERSA (Women’s Health), Medical Research Council, 1999.

L Malpe, B Pithey, H Combrink, ‘The Domestic Violence Act simplified’, unpublished paper, 1999.

L Swart, A Gilchrist, A Butchart, M Seedat, L Martin, ‘Rape surveillance through district surgeon offices in Johannesburg, 1996-1998: Evaluation and prevention implications’. Institute for Social and Health Sciences Project, 1999.