REPUBLIC OF SOUTH AFRICA
DOMESTIC VIOLENCE BILL
(As introduced)
(MINISTER OF JUSTICE)

BILL
To provide for a new procedure with regard to domestic violence.

be it enacted by the Parliament of the Republic of South Africa, as follows:-

1. Whenever a complaint on oath is made to a magistrate that any person is conducting himself violently towards, or is threatening injury to the person or property of another or that he has used language or behaved in a manner towards another likely to provoke a breach of the peace or assault, then, whether such conduct occurred or such language was used or such threat was made in a public or private place, the magistrate may order such person to appear before him and if necessary may cause him to be arrested and brought before him, and thereupon the magistrate shall enquire into and determine upon such complaint and may place the parties or any witnesses thereat on oath and in his discretion may make one or more of the following orders:
(a) Issue a restraining order.
(b) Impose such sentence as the magistrate may deem to be justified by the particular circumstances, which sentence may be postponed or wholly or partly suspended on one or more of the following conditions:
(i) That the parties submit to marriage counselling.
(ii) That the respondent submit to psychological treatment and/or treatment for the abuse of drugs or alcohol.
(iii) That the parties submit themselves to counselling by the Family Advocate.
(iv) Such other condition or conditions as are required by the circumstances of the case.

2. The Prevention of Family Violence Act, 1993 (Act No. 133 of 1993), is hereby repealed.

3. This Act shall be called the Domestic Violence Act, 1998.

BILL
To provide for the granting of protection orders with regard to domestic violence; for an obligation to report cases of suspected ill-treatment of children; that a husband can be convicted of the rape or indecent assault of his wife; and for matters connected therewith.

BE IT enacted by the Parliament of the Republic of South Africa, as follows:-

Definitions
1. In this Act, unless the context indicates otherwise -
(i) "applicant" means any person, including a minor, who is or has been in a domestic relationship with the respondent and who makes an application in terms of section 4;
(ii) "arm" means any arm as defined in section 1(1) or any armament as defined in section 32(1) of the Arms and Ammunition Act, 1969 (Act No. 75 of 1969);
(iii) "child" means any minor in the care of an applicant;
(iv) "clerk of the court" means a clerk of the court appointed in terms of section 13 of the Magistrate's Courts Act, 1944 (Act No. 32 of 1944) and includes an assistant clerk of the court so appointed;
(v) "court" means any court contemplated in the Magistrates’ Courts Act, 1944 (Act No. 32 of 1944);
(vi) "dangerous weapon" means any weapon as defined in section 1 of the Dangerous Weapons Act, 1968 (Act No. 71 of 1968);
(vii) "domestic relationship" means a relationship between the applicant and respondent in any of the following ways:
(a) They are or were married to each other, including marriage according to any law, custom or religion;
(b) they (whether they are of the same or of the opposite sex) live or lived together in a relationship in the nature of marriage, although they are not, or were not, married to each other, or are not able to be married to each other;
(c) they are the parents of a child or are persons who have or had parental responsibility for that child (whether or not at the same time);
(d) they are family members related by consanguinity, affinity or adoption;
(e) they would be family members related by affinity if the persons referred to in paragraph (b) were, or were able to be, married to each other;
(f) they are or were in an engagement or dating relationship; or
(g) they live or lived together in a residence or shared household;
(viii) "domestic violence" means any controlling or abusive behaviour that harms, threatens or potentially harms or threatens the health, safety or well-being of the applicant or any child, and may include economic abuse;
(ix) "economic abuse" means -
(a) the unreasonable deprivation or threatened deprivation of any or all economic or financial resources to which the applicant is entitled, including household necessaries for the applicant and any child, and mortgage bond repayments of the shared household; or
(b) the unreasonable disposal or threatened disposal of household effects or other property in which the applicant has an interest;
(x) "emergency monetary relief" means compensation for any monetary losses suffered by the applicant and any child at the time of the issue of the interim protection order as a result of the domestic violence and includes -
(a) loss of earnings;
(b) medical and dental expenses; or
(c) moving and accommodation expenses;
(xi) "member of the South African Police Service" means any member as defined in section 1 of the South African Police Service Act, 1995 (Act No. 68 of 1995);
(xii) "peace officer" means a peace officer as defined in section 1 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977);
(xiii) "protection order" means an order granted in terms of sections 5 or 10;
(xiv) "residence" includes institutions for children, the elderly and the disabled;
(xv) "respondent" means any person who is or has been in a domestic relationship with the applicant and against whom the applicant has obtained or is endeavouring to obtain a protection order in terms of sections 5 or 10;
(xvi) "shared household" means a household where the applicant and respondent live or lived together in a domestic relationship;
(xvii) "sheriff" means a sheriff appointed in terms of section 2(1) of the Sheriffs Act, 1986 (Act No. 90 of 1986), or an acting sheriff appointed in terms of section 5(1) of the said Act;
(xviii) "victim" means any person who alleges that she or he has been subjected to an act of domestic violence; and
(xix) "warrant of arrest" means a warrant contemplated in section 11.

Duty to inform victim and applicant of rights
2. (1) Any member of the South African Police Service shall, at the scene of an incident of domestic violence or as soon thereafter as is reasonably possible, or when the incident of domestic violence is reported -
(a) inform the victim of the right to ask for assistance and protection from any member of the South African Police Service;
(b) provide the victim with information on how to obtain a protection order;
(c) take all reasonable steps to assist the victim or any child to locate a place of safety or shelter;
(d) take all reasonable steps to assist the victim or any child to receive medical treatment;
(e) inform the victim about the nature of a protection order;
(f) inform the victim of the right to lodge a criminal complaint where a criminal offence has been committed against the victim or any child; and
(g) inform the victim that if a protection order is obtained, or a criminal complaint is lodged, in which false facts are knowingly alleged, the victim may be convicted of an offence.
(2) Upon the report of a breach of a protection order to any member of the South African Police Service, such member shall inform the applicant of the right also to lodge a criminal complaint against the respondent if a criminal offence has been committed against the applicant or any child.
(3) Upon the application for an interim protection order contemplated in section 5, the clerk of the court shall inform the applicant of the right also to lodge a criminal complaint against the respondent if a criminal offence has been committed against the applicant or any child.

Arrest by peace officer without warrant
3. A peace officer may without warrant arrest any person at the scene of an incident of domestic violence reasonably suspected of having committed an offence containing an element of physical violence.

Application for protection order
4. (1) An applicant may apply to the court for an interim protection order contemplated in section 5 in a form substantially corresponding to Form 1 of the Schedule.
(2) The clerk of the court shall inform the applicant of the relief available in terms of this Act.
(3) The application referred to in subsection (1) shall be made by way of an affidavit in which shall be stated the -
(a) material facts on which the application is based;
(b) nature of the order applied for;
(c) name of the Police Station at which the applicant is likely to report any breach of the protection order.
(4) Notwithstanding the provisions of any other law, the application may be brought on behalf of the applicant by any other person (including but not limited to a counsellor, health service provider, member of the South African Police Service, social worker or teacher) who has a material interest in the well-being of the applicant: Provided that the application shall be brought with the written consent of the applicant, except in circumstances where the applicant is -
(a) a minor;
(b) mentally retarded;
(c) unconscious; or
(d) under the influence of intoxicating liquor or drugs.
(5) Notwithstanding the provisions of any other law, any minor may apply to the court for a protection order without the assistance of a parent, guardian or any other person.
(6) The application referred to in subsection (1) may be brought outside ordinary court hours or on a day which is not an ordinary court day.
(7) Supporting affidavits by persons who have knowledge of the matter concerned may accompany the application.
(8) The applicant may request that her or his physical address be omitted from the protection order, in which instance the court may not make an order as contemplated in section 6(1)(e).
(9) The application and affidavits shall be lodged with the clerk of the court who shall forthwith submit the application and affidavits to a court.
(10) In considering an application contemplated in subsection (1) the court -
(a) may require further oral evidence or evidence by affidavit; and
(b) shall record any such oral evidence.

Power to grant interim protection order
5. (1) If the court is satisfied that there is prima facie evidence that the respondent is committing, or has committed, or is likely to commit an act of domestic violence, the court shall grant an interim protection order against the respondent, in a form substantially corresponding to Form 2 of the Schedule.
(2) In exercising its powers in terms of subsection (1), the court shall not refuse to grant an interim protection order by reason of the fact that the respondent has not been given notice of the proceedings.
(3) An interim protection order granted in terms of subsection (1) shall call upon the respondent to show cause on the return date specified in the order why the interim protection order should not be confirmed.
(4) The return date referred to in subsection (3) shall not be less than 10 days after service has been effected upon the respondent in terms of section 9(1).
(5) The return date referred to in subsection (3) may be anticipated by the respondent upon not less than 48 hours’ written notice to the applicant and the court concerned.

Terms of protection order
6. (1) In granting an interim protection order contemplated in section 5 or a final protection order contemplated in section 10 the court may prohibit the respondent from -
(a) committing any act of domestic violence as contemplated in section 1;
(b) enlisting the help of another person to commit any such act;
(c) entering the shared household: Provided that the court may impose this prohibition only if it appears to be in the best interests of the applicant or any child;
(d) entering a specified part of the shared household;
(e) entering the applicant's residence;
(f) entering the applicant's place of employment;
(g) preventing the applicant or any child who ordinarily lives or lived in the shared household from entering or remaining in the shared household or a specified part of the shared household; or
(h) committing any other act as specified in the protection order.
(2) The court may impose any additional conditions which it deems reasonably necessary to provide for the safety of the applicant or any child, including but not limited to an order that a peace officer shall accompany the applicant to a specified place to supervise the collection of personal property.
(3) The court may order that any or all of the prohibitions or conditions contained in the protection order shall apply for the benefit of any child.
(4) In ordering a prohibition contemplated in subsection 1(c), the court may impose on the respondent obligations as to the discharge of rent or mortgage payments having regard to the financial needs and resources of the applicant, respondent and any child.
(5) The court may order the respondent to pay emergency monetary relief, having regard to the financial needs and resources of the applicant, respondent and any child.
(6) The court may order the respondent to pay educational expenses where such expenses are incurred as a result of an act of domestic violence, having regard to the financial needs and resources of the applicant, respondent and any child.
(7) The court may -
(a) refuse the respondent contact with any child if it is shown that contact is not in the best interests of such child; or
(b) order contact with such child on such conditions as it may consider appropriate.

Seizure of arms and dangerous weapons
7. (1) The court may order a member of the South African Police Service to seize any arm or dangerous weapon in the possession of the respondent, if the court is satisfied by the affidavit contemplated in section 4(3) that -
(a) the respondent has threatened or expressed the intention to kill or injure any person, including himself or herself, by means of such arm or dangerous weapon; or
(b) possession of such arm or dangerous weapon is not in the best interests of the respondent or any other person as a result of the respondent's -
(i) state of mind or mental condition;
(ii) inclination to violence (whether an arm was used in the violence or not); or
(iii) use of or dependence on intoxicating liquor or drugs.
(2) The court shall direct the clerk of the court to refer a copy of the affidavit contemplated in section 4(3) to the Commissioner of the South African Police Service for consideration in terms of section 11 of the Arms and Ammunition Act, 1969 (Act No. 75 of 1969), if the court has ordered the seizure of any arm in terms of subsection (1).

Service of documents
8. (1) Service of any document in terms of this Act shall forthwith be effected by -
(a) the clerk of the court by delivering or presenting for delivery a certified copy of the document and endorsing the original document to this effect;
(b) the sheriff who shall serve the document in terms of the provisions of the Magistrate's Courts Act, 1944 (Act No. 32 of 1944), and Rules published in terms of the said Act; or
(c) a peace officer who shall serve the document in terms of the provisions of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), relating to the service of subpoenas.
(2) Service of all documents shall be at the expense of the State.

Validity of interim protection order
9. (1) The interim protection order contemplated in section 5 shall have no force and effect until it has been served on the respondent in the manner contemplated in section 8.
(2) A copy of the affidavit contemplated in section 4(3) and the record of any oral evidence noted in terms of section 4(10)(b) shall be served on the respondent with the interim protection order.
(3) Upon service or upon receipt of a return of service the clerk of the court shall forthwith cause a certified copy of the interim protection order and the original warrant of arrest contemplated in section 11(1)(a) to be served on the applicant.

Power to grant final protection order
10. (1) If the respondent does not appear on the return date contemplated in section 5(3), the interim protection order may be confirmed if the court is satisfied that proper service has been effected upon the respondent, and a final order shall be issued in a form substantially corresponding to Form 4 of the Schedule.
(2) If the respondent appears on the return date in order to oppose the confirmation of the interim protection order, the court shall proceed to hear the matter and -
(a) consider any evidence previously received in terms of section 4(10);
(b) consider such further affidavits or oral evidence as it may direct; and
(c) record any such oral evidence.
(3) At the conclusion of the such hearing the court -
(a) may confirm, amend or set the interim protection order aside; and
(b) shall issue an order in a form substantially corresponding to Form 4 of the Schedule.
(4) Upon the court granting a final order as contemplated in subsection (1) or (3)(a), the clerk of the court shall forthwith cause -
(a) the original protection order to be served on the respondent; and
(b) a certified copy of the interim protection order to be served on the applicant.
(5) If the interim protection order is confirmed or amended as contemplated in subsection (1) or (3)(a), the clerk of the court shall forthwith forward certified copies of such final order and the warrant of arrest contemplated in section 11(1)(a) to the police station of the applicant’s choice.
(6) A final protection order issued in terms of this section shall remain in force unless it is set aside, and the execution of the protection order shall not be automatically suspended upon the noting of an appeal.

Warrant of arrest and procedure upon arrest of respondent
11. (1) In granting an interim protection order contemplated in section 5 the court shall make an order -
(a) authorising the issue of a warrant for the arrest of the respondent, in a form substantially corresponding to Form 3 of the Schedule; and
(b) suspending the execution of such warrant subject to compliance with any prohibition, condition, obligation or order imposed in terms of section 6.
(2) The warrant referred to in subsection (1)(a) shall remain in force unless the interim protection order is set aside.
(3) Any member of the South African Police Service shall -
(a) execute a warrant of arrest if he or she is satisfied upon receipt of an affidavit by the applicant in a form substantially corresponding to Form 5 of the Schedule that the respondent has breached any prohibition, condition, obligation or order imposed in terms of section 6; or
(b) arrest the respondent if he or she is satisfied upon receipt of an affidavit by the applicant in a form substantially corresponding to Form 6 of the Schedule that -
(i) an interim protection order issued in terms of section 5 or a final protection order issued in terms of section 10 is in existence;
(ii) a warrant of arrest for the respondent has been issued;
(iii) the warrant of arrest has been lost or destroyed; and
(iv) the respondent has breached any prohibition, condition, obligation or order imposed in terms of section 6.
(4) The clerk of the court shall issue the applicant with a second or further warrant of arrest upon the applicant filing an affidavit in which it is stated that such warrant is required for her or his protection as -
(a) the existing warrant of arrest has been executed and cancelled; or
(b) the existing warrant of arrest has been lost or destroyed.
(5) Subject to the provisions of this Act, all the provisions of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), relating to the -
(a) form and manner of execution of warrants of arrest;
(b) arrest;
(c) detention;
(d) search; and
(e) criminal prosecution of the respondent;
shall with the necessary changes apply in respect of warrants of arrest issued in terms of subsection (1), and the respondent shall not be released by the court unless the respondent, having been given a reasonable opportunity to do so, adduces evidence which satisfies the court that the interests of justice permit his or her release from detention in custody.
(6) A respondent arrested in terms of subsection (3) -
(a) shall be brought before a court as soon as reasonably possible, but not later than-
(i) 48 hours after the arrest; or
(ii) the end of the first court day after the expiry of the 48 hours, if the 48 hours expire outside ordinary court hours or on a day which is not an ordinary court day; and
(b) shall, at the discretion of the Attorney General, be criminally charged by the State with -
(i) an offence contemplated in section 20(a); and
(ii) any other offence resulting from a complaint lodged by the applicant against the respondent.

Amendment or setting aside of final protection order by the applicant
12. (1) The applicant may, upon written notice to the respondent and the court concerned, apply for the amendment or setting aside of the final protection order in a form substantially corresponding to Form 7 of the Schedule: Provided that the court shall not grant such an application unless it is satisfied by affidavit or by oral evidence that the application is made freely and voluntarily.
(2) The clerk of the court shall forward a notice in a form substantially corresponding to Form 7 of the Schedule to the respondent if the final protection order is amended or set aside as contemplated in subsection (1).

Jurisdiction
13. (1) Any court shall have jurisdiction to grant a protection order as contemplated in this Act, within the area in which -
(a) the applicant permanently or temporarily resides, carries on business or is employed;
(b) the respondent resides, carries on business or is employed; or
(c) the cause of action arose.
(2) No specific minimum period shall be required in relation to subsection (1)(a).
(3) An interim protection order granted in terms of section 5 or a final protection order granted in terms of section 10 shall be enforceable throughout the Republic.

Obligation to report ill-treatment of children
14. (1) Notwithstanding the provisions of any other law every dentist, medical practitioner, nurse, psychologist, social worker or teacher, or any person employed by or managing a children's home, place of care or shelter, who examines, attends to or deals with any child in circumstances giving rise to the reasonable suspicion that such child has been subjected to acts of domestic violence or neglect as a result of which such child suffers from any injury, single or multiple, shall immediately notify a peace officer of those circumstances.
(2) No persons referred to in subsection (1) shall be liable in respect of any notification given in good faith in accordance with this section.

Rape or indecent assault of wife by her husband
15. A husband may be convicted of the rape or indecent assault of his wife irrespective of whether the parties are married according to civil, customary or religious law.

Proceedings in camera
16. Proceedings in terms of this Act shall be held in camera, save in circumstances where the court on good cause shown directs otherwise.

Legal representation
17. Any party to proceedings in terms of this Act shall have the right to legal representation.

Costs
18. The court may only make an order as to costs against any party if it is satisfied that such party has acted frivolously, vexatiously or unreasonably.

Appeal and review
19. The provisions in respect of appeal and review contemplated in the Magistrates’ Courts Act, 1944 (Act No. 32 of 1944), the Supreme Court Act, 1959 (Act No. 59 of 1959) and the Criminal Procedure Act, 1977 (Act No. 51 of 1977) shall apply to any proceedings in terms of this Act.

Offences and penalties
20. Notwithstanding the provisions of any other law, any person who -
(a) contravenes any prohibition, condition, obligation or order imposed in terms of section 6; or
(b) fails to comply with the provisions of sections 2, 8, 11(3) or 14(1),
shall be guilty of an offence and liable on conviction in the case of an offence referred to in paragraph (a) to a fine or imprisonment for a period not exceeding five years or to both such fine and such imprisonment, and in the case of an offence contemplated in paragraph (b) to a fine or imprisonment for a period not exceeding three months or to both such fine and such imprisonment.

Repeal of laws and savings
21. (1) The Prevention of the Family Violence Act, 1993 (Act No. 133 of 1993), is hereby repealed.
(2) Any application made, proceedings instituted or order made in terms of the Act referred to in subsection (1) shall be deemed to have been made or instituted in terms of this Act.

Short title
22. This Act shall be called the Domestic Violence Act, 1998.