South African Council of Churches (SACC)
Submission to the Portfolio Committee on Justice
Re: Domestic Violence Bill (B75-98)
17 August 1998

1.0 Support for legislative reform to combat domestic violence
1.1 The South African Council of Churches (SACC) is the facilitating body for a fellowship of 25 Christian churches, together with one observer-member and associated para-church organisations. Founded in 1968, the SACC includes among its members Protestant, Catholic, African Independent, and Pentecostal churches, representing the majority of Christians in South Africa. SACC members are committed to expressing jointly, through proclamation and programmes, the united witness of the church in South Africa, especially in matters of national debate.

1.2 The SACC strongly supports the implementation of effective measures to combat the growing problem of domestic violence. Since the overwhelming majority of victims of domestic violence are women, domestic violence represents a gross violation of the constitutional rights to gender equity and human dignity.

1.3 The proposed Domestic Violence Bill (hereafter, "the Bill") is a landmark in the campaign to eradicate domestic violence. We welcome its introduction and urge its prompt adoption and implementation. We commend the South African Law Commission, the Minister and Department of Justice, and the many stakeholders who contributed to the drafting process for the preparation of this important and comprehensive bill.

1.4 We wish to highlight several key aspects of the legislation that we feel introduce substantial improvement on the existing law, the Prevention of Family Violence Act, 1993 (No. 133 of 1993). These include:
* the use of inclusive definitions of "domestic relationship" and "domestic violence";
* the duty of police to notify victims of domestic violence of their rights;
* provision for the seizure of dangerous weapons;
* provision for the granting of an interim protection order;
* provision for the enforcement of a warrant that has been lost or destroyed;
* recognition of the economic vulnerability of many victims of domestic violence; and
* the increasing of penalties for domestic violence and the introduction of penalties for failure to arrest offenders or to inform victims of their rights.

2.0 Definition of "domestic relationship"
2.1 Current legislation applies only to "parties to a marriage" which is defined to include "a man and a woman who are or were married to each other according to any law or custom and also a man and a woman who ordinarily live or lived together as husband and wife, although not married to each other."

2.2 In contrast, the Bill covers all domestic relationships, introducing an appropriately inclusive definition that includes parental relationships, same-sex relationships, engagement, and other consanguineous relationships. This expanded definition more accurately reflects the varied situations in which domestic violence can occur and offers protection to a broader range of individuals who may be vulnerable domestic abuse.

3.0 Definition of "domestic violence"
3.1 Current legislation does not attempt to define "family violence". Although the law provides for the issuing of an interdict prohibiting the commission of any specified act, the interdict process is clearly geared to the prevention of assault, forced entry into a residence, or other physical acts.

3.2 The Bill would introduce a definition of "domestic violence" that would explicitly include emotional, psychological, and economic abuse and intimidation. This formulation will help to minimise confusion about the scope of the protection granted by the law and will clearly provide remedy for these key aspects of domestic violence.

4.0 Duty to notify victim of rights
4.1 Victims of domestic violence may have little idea of the legal remedies open to them to prevent the abuse from recurring. We therefore welcome Section 2 of the Bill, which would require members of the South African Police Service, when responding to an incident of domestic violence, to inform the victim of her or his rights and recourse under law. By specifying the content of the statement of rights, and by requiring the statement to be provided to the victim in written form in the official language of her or his choice, the Bill ensures comprehensiveness and consistency in the provision of this information.

5.0 Seizure of dangerous weapons
5.1 The SACC welcomes the inclusion in the Bill of a provision permitting the court to order, in certain circumstances, the seizure of firearms or other dangerous weapons in the possession of a respondent. We believe that this is an appropriate measure to reduce the applicants vulnerability to violent reprisals.

6.0 Interim protection orders
6.1 The introduction of an interim protection order, as provided for in sections 5, 6, and 7 of the Bill, constitutes a significant improvement on the present Act. Currently, the law allows a judge or magistrate to grant a final interdict against one party to a marriage on the strength of an application by the other party. There is no provision for the respondent to be heard, and he or she may only apply for the interdict to be amended or set aside after it has been granted.

6.2 The Bill addresses this injustice by allowing the respondent to file an answering affidavit with the court (as well as permitting the applicant to make written rebuttal) so that the positions of both parties may be taken into account before a decision is made concerning the granting of a final protection order.

6.3 Although this balanced approach will allow applications to be more fairly heard, it also introduces a period of delay in the granting of protection orders that could expose the applicant to enormous risk of retaliation. The Bill resolves this dilemma by enabling the court to grant an interim protection order—and issue a suspended warrant for the arrest of the perpetrator—on the strength of information supplied by the applicant.

7.0 Warrants lost or destroyed
7.1 We welcome the Bill's inclusion of measures to ensure that the loss or destruction of an original warrant of arrest issued to an applicant does not preclude the arrest of a respondent who violates a protection order. Victims of domestic violence may need to seek alternative accommodations or make other rapid and significant changes in their lives in the period immediately after applying for a protection order. Such domestic instability increases the potential for loss of or damage to documents. Furthermore, these provisions minimise any incentive for a respondent to attempt to destroy an arrest warrant.

8.0 Economic vulnerability
8.1 In addition to the Bill's acknowledgement of economic abuse as a form of domestic violence, it is admirably sensitive to the precarious financial situation in which many victims of domestic violence find themselves. Section 8(2) stipulates that all protection orders and other documents issued in terms of the Bill must be served at the expense of the State. Section 6(4), (5) and (6) enable the court to order a respondent to pay rent or mortgage payments, educational expenses, or other emergency relief. The police are required to notify a victim of these provisions as part of the information which they must supply in terms of Section 2(1).

8.2 Our only concern about these provisions is that the educational assistance contemplated in Section 6(6) is restricted to the payment of expenses "incurred as a result of an act of domestic violence." Although it is appropriate for the courts to hold a respondent liable for any extraordinary educational expenses resulting from an incident of abuse, it is equally appropriate for a respondent to assist with ordinary educational expenses. We assume that provision for such expenses may be made under the emergency relief measures contained in Section 6(5) and that the terms of Section 6(6) will not be used to restrict liability for educational support.

9.0 Extension of penalties
9.1 Increasing the penalty for domestic violence from a maximum of one year imprisonment to a maximum of five years imprisonment is consistent with the gravity of the offense.

9.2 The effectiveness of this legislation will depend, in part, on rigorous enforcement. We endorse the imposition of a penalty of not more than three months imprisonment for failure to comply with key provisions of the Bill—notification of rights, serving of interdicts, and arrest of individuals in breach of protection orders—as we believe that this will encourage law enforcement personnel to give greater attention to their duties in cases of domestic violence.